Exhibit 10.7
SECOND & SENECA BUILDING
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
LEASE AGREEMENT
BETWEEN
SECOND AND SENECA LIMITED PARTNERSHIP,
a Washington Limited Partnership
LANDLORD
and
IMMUNEX CORPORATION
TENANT
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TABLE OF CONTENTS
Section
NO. TITLE OF SECTION AND SUBHEADINGS:
1. LEASE DATA AND EXHIBITS . . . . . . . . . . . . . . . . . . . . . . . 1
(a) Building . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
(b) Premises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
(c) Rentable Area of the Premises . . . . . . . . . . . . . . . . . . 1
(d) Basic Plans Delivery Date . . . . . . . . . . . . . . . . . . . . 1
(e) commencement Date . . . . . . . . . . . . . . . . . . . . . . . . 1
(f) Expiration Date . . . . . . . . . . . . . . . . . . . . . . . . . 1
(g) Rent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
(h) Security Deposit . . . . . . . . . . . . . . . . . . . . . . . . . 1
(i) Parking. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
(h) Notice Addresses . . . . . . . . . . . . . . . . . . . . . . . . . 1
(k) Exhibits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. PREMISES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3. COMMENCEMENT AND EXPIRATION DATES 2
(a) Commencement Date. . . . . . . . . . . . . . . . . . . . . . . . . 2
(b) Tenant Obligations . . . . . . . . . . . . . . . . . . . . . . . . 2
(c) ▇▇▇▇▇ Termination Rights . . . . . . . . . . . . . . . . . . . . . 2
(d) Expiration Date. . . . . . . . . . . . . . . . . . . . . . . . . . 2
4. ACCEPTANCE OF PREMISES. . . . . . . . . . . . . . . . . . . . . . . . 2
5. RENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
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6. SECURITY DEPOSIT . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
7. PARKING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
8. USES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
9. SERVICES AND Utilities . . . . . . . . . . . . . . . . . . . . . . . . 3
(a) Standard Services. . . . . . . . . . . . . . . . . . . . . . . . . 3
(b) Interruption of Services . . . . . . . . . . . . . . . . . . . . . 4
(c) Additional Services. . . . . . . . . . . . . . . . . . . . . . . . 4
10. COSTS OF OPERATIONS AND REAL ESTATE TAXES. . . . . . . . . . . . . . . 4
(a) Additional Rent. . . . . . . . . . . . . . . . . . . . . . . . . . 4
(b) Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(c) Estimated Costs . . . . . . . . . . . . . . . . . . . . . . . . . 5
(d) Actual Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(e) Records and Adjustments . . . . . . . . . . . . . . . . . . . . . 5
(f) Personal Property Taxes . . . . . . . . . . . . . . . . . . . . . 5
11. CARE OF PREMISES . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
12. ACCESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
13. DAMAGE OR DESTRUCTION. . . . . . . . . . . . . . . . . . . . . . . . . 6
(a) Damage and Repair . . . . . . . . . . . . . . . . . . . . . . . . 6
(b) Destruction During Last Year of Term . . . . . . . . . . . . . . . 6
(c) Tenant Improvements . . . . . . . . . . . . . . . . . . . . . . . 6
14. WAIVER OF SUBROGATION. . . . . . . . . . . . . . . . . . . . . . . . . 6
15. INDEMNIFICAllON. . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
16. INSURANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(a) Tenant's Insurance . . . . . . . . . . . . . . . . . . . . . . . . 7
(b) Insurance PoGq Requirements . . . . . . . . . . . . . . . . . . . 7
17. ASSIGNMENT AND SUBLETTING. . . . . . . . . . . . . . . . . . . . . . . 7
(a) Assignment or Sublease . . . . . . . . . . . . . . . . . . . . . . 7
(b) Assignment Obligations . . . . . . . . . . . . . . . . . . . . . . 8
(c) Sublessee Obligations. . . . . . . . . . . . . . . . . . . . . . . 8
18. SIGNS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
19. LIENS AND INSOLVENCY . . . . . . . . . . . . . . . . . . . . . . . . . 8
(a) Liens. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(b) Irisolvency. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
20. DEFAULT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(a) Cumulative Remedies. . . . . . . . . . . . . . . . . . . . . . . . 9
(b) Tenant's Right to Cure . . . . . . . . . . . . . . . . . . . . . . 9
(c) Abandonment. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(d) Landlord's Re-entry. . . . . . . . . . . . . . . . . . . . . . . . 9
(e) Reletting the Premises . . . . . . . . . . . . . . . . . . . . . . 9
(f) Nonpayment of Additional Rent. . . . . . . . . . . . . . . . . . . 10
21. PRIORlTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
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22. SURRENDER OF POSSESSION. . . . . . . . . . . . . . . . . . . . . . . . 10
23. REMOVAL OF PROPERTY. . . . . . . . . . . . . . . . . . . . . . . . . . 10
24. NON-WAIVER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
25. HOLDOVER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
26. CONDEMNATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(a) Entire Taking. . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(b) Partial Taking . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(c) Awards and Damages . . . . . . . . . . . . . . . . . . . . . . . . 11
27. NOTICES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
28. COSTS AND ATTORNEYS FEES . . . . . . . . . . . . . . . . . . . . . . . 11
29. LANDLORD'S LIABILITY . . . . . . . . . . . . . . . . . . . . . . . . . 11
30. LANDLORD'S CONSENT . . . . . . . . . . . . . . . . . . . . . . . . . . 11
31. ESTOPPEL CERTIFICATES. . . . . . . . . . . . . . . . . . . . . . . . . 11
32. TRANSFER OF LANDLORD'S INTEREST. . . . . . . . . . . . . . . . . . . . 12
33. RIGHT TO PERFORM . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
34. QUIET ENJOYMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
35. GENERAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
(a) Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
(b) Heirs and Assigns . . . . . . . . . . . . . . . . . . . . . . . . 12
(c) No Brokers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
(d) Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . 12
(e) Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
(f) Overdue Payments . . . . . . . . . . . . . . . . . . . . . . . . . 12
(g) Force Majeure . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(h) Right to Change Public Spaces . . . . . . . . . . . . . . . . . . 13
(i) Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(j) Building Directory . . . . . . . . . . . . . . . . . . . . . . . . 13
(k) Building Name . . . . . . . . . . . . . . . . . . . . . . . . . . 13
53
LEASE AGREEMENT
Second & Seneca Building
THIS LEASE made this 24th day of December, 1992, between SECOND AND SENECA
LIMITED PARTNERSHIP, a Washington limited partnership ("Landlord"), and IMMUNEX
CORPORATION a Delaware corporation ("Tenant").
As parties hereto, Landlord and Tenant agree:
1. LEASE DATA AND Exhibit: The following terms as used herein shall have
the meanings provided in this Section L unless otherwise specifically modified
by provisions of this Lease:
(a) Building: Located on the real property descabed in Section 2 hereof, with an
address of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
(b) PREMLSES: Corsisting of the area on the TENTH (10TH) AND ELEVENTH (llth)
floor(s) of the Buildmg, as outGned on the floor plan(s) attached hereto as
Exhibit A, including tenant improvements, ff any, as descr bed in Exhibit B.
(c) RENTABLE AREA OR THE PREMLSES: 3 6, 7 51 net rentable square feet.
(d) BASLC PLAN DELIVENR DATE: N/A
FINAL PLAN DELIVERY DATE: N/A
(e) COMMENCEMENT DATE: April l, 1993,or such earlier date as provided in
Section 3 hereof for the initial premises, See Exhibit C, Section 4.
(f) EXPIRITION DATE: For the entire Premises. the day preceding the 5th
anniversary of the Commencement Date.
(g) Rent See exhibit C, Section 1
Tenant has deposited with the Landlord on the date hereof $24,657.33 to be
applied to the first Rent payment due hereunder.
(h) SECURITY DEPOSIT: N/A
(i) PARKING See Exhibit C, Section 2
(j) NOTICES AND PAVMENTS ADDRESSES:
Landlord Second and Seneca limited Partnership
Suite 2000, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇, Property Manager
Fax: ▇▇▇ ▇▇▇-▇▇▇▇
Tenant: Immunex Corporation
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇
Fax: ▇▇▇ ▇▇▇-▇▇▇▇
(k) Exhlblts: The following exhibits or riders are made a part of this Lease:
Exlubit A - Fioor Plan of Premues
Exhibit B - Tenant Improvements
Exhibit C - Addendum to Lease Agreement
Exhibit D - Janitorial Specif ication
54
2. PREMISES: Landlord does hereby lease to Tenant, and Tenant does hereby lease
from Landlord, upon the terms and conditions herein set forth, the Premises
described in Section l(b) hereof as shown on Exhibit A hereto, together with
rights of ingress and egress over common areas in the Building located on the
land ( Land.) more particularly described as: ▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇: 13, Addition to the Town of Seattle as laid our on the claims of ▇.▇.
▇▇▇▇▇ and AA. ▇▇▇▇▇ and ▇.▇. Yesler (commonly known as ▇ ▇ ▇▇▇▇▇'▇ Addition to
the Ciq of Seattle), according to the plat thereof recorded in Volume I of Pla4
page 25, in King County, Washington; EXCEPT the sounhwesterly 9 feet of said
Lots 1, 4, 5 and 8 condemned for the widening of ▇▇▇▇▇ Avenue in Distria Court
Cause Number 709Z as provided for bv City of Seattle Ordinance Number 1129, AND
EXCEPT the northeasterly 12 feet of s~ud Lots Z 3, 6 and 7, condemned for the
widening of Second Avenue in Distria Court Cause Number h^~^7, as provided for
by City of Seattle Ordinance Number 1107;
TOGETHER WITH uhat portion of the vacated alley Iying within said Block 13 bv
the City of Seattle Ordinance Number 114969. Net rentable square feet' and
~rentable area~ as used herein shall mean Rentable Area as defuned in BOMA
American National Standard Z65.1-1980 (reprinted May 1981).
3. COMMENCEMENT AND EXPIRATION DATES:
(a) COMMENCEMENT DATE Provided that the common facilities for access and
service to the premises have been completed, the Commencement Date shall be the
date specified in Section l(e) or such earlier date upon which the Tenant's
imrpovement work described in Section V of Exhibit B has been completed, as
evidenced by a certificate to that effect delivered to Landlord by Tenant's
architect.
(b) TENANT OBLIGATIONS. If completion of the Premises is delayed due to the
failure of Tenant to fulfill any obligation under this Lease or any exhibit
hereto, the Lease shall be deemed to have commenced upon the date specified in
Section 1 (e).
(c) TENANT TERMINATION RIGHTS. In the event, due to delays from any cause other
than Tenant's failure to comply with the terms of this Lease, the Premises are
not delivered to Tenant within 30 days of the date of this lease with Landlord's
improvement work described in Ssectio I of Exhibit B completed, Tenant may
terminate this Lease by written notice. Termination under this Section 3(c)
shall be Tenant's sole remedy and Tenant shall have no other rights or claims
hereunder at law or inequity.
(d) Expiration Date. The Lease shall expire on the date specified in Section
l(f).
4. ACCEPTANCE OF PREMISES: Because this Lease is entered into after the
completion of Landlord's improvement work described in Section I of Exhibit B in
the Premises, Tenant accepts the Premises "as is" as of the date of this Lease.
The acceptance of the premises "as is" does not constitute the commencement
Date.
5. RENT: Tenant shall pay without notice the Rent and Additional Rent [as
defined in Section 2 (f) without deduction or offset in lawful money of the
United States in advance on or before the first day of each month at Landlord's
Notice Address set forth in Section 1(j) hereof, or to such other partyt or at
such other place as Landlord may hereafter from time to time designate in
writing Rent and Additional Rent for any partial month at the beginning or end
of the Lease term shall be prorated in proportion to the number of days in such
month.
7. PARKING: Leasing of parking by Tenant shall be subject to such reasonable
rules and regulations as Landlord or its parking operator or the City may
publish from time to time' provided Landlord delivers to Tenant a copy of such
rules and regulations. Tenant shall provide Landlord within thirty (30) days'
prior written notice of the number of parking spaces required by Tenant, up to
the maximum number specified in Section 1(i), and of any changes in those
requirements. Short-term hourly parking shall be offered during Normal Business
Hours except Saturdays [as defines in Section 9(a)1 for Tenant's clients and
customers. Landlord shall make available a parking validation system so that
Tenant may provide parking validation to its clients and customers at Tenant's
expense.
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8. USES: The Premises are to be used only for general office purposes
("Permitted Uses"), and for no other business or purpose without the prior
written consent of Landlord which consent may be withheld if Landlord
determines in its reasonable opinion that any proposed use is inconsistent with
or detrimental to the maintenance and operation of the Building as a first-class
office building in--downtown Seattle, Washington or is inconsistent with any
restriction on use of the Premises, the Building or the Land contained in any
lease, mortgage or other agreement or instrument by which the Landlord is bound
or to which any of such property is subject. Tenant shall not commit any act
that will increase the then existing rate of insurance on the Building without
Landlord's consent. Tenant shall promptly pay upon demand the amount of any
increase in insurance rates caused by any act or acts of Tenant. Tenant shall
not commit or allow to be committed any waste upon the Premises, or public or
private nuisance or other act which disturbs the quiet enjoyment of any other
tenant in the Building or which is unlawful or which will cause any substantial
noise, vibration, smoke or fumes. If Tenant should disturb the quiet enjoyment
of any other tenant in the Building, Tenant shall provide adequate insulation or
take otber reasonable action as may be necessary to eliminate the disturbance.
Tenant shall comply with all laws relating to its use or occupancy of the
Premises and shall observe such reasonable rules and regulations (not
inconsistent with the terms of this Lease) as may be adopted and made available
to Tenant by Landlord from time to time for the safety, care and cleanliness of
the Premises or the Building, and for the preservation of good order therein.,
provided Landlord delivers to Tenanant a copy of such rules and requlations.
9. SERVICES AND UTILITIES:
(a) Standard Services. Landlord Shall maintain the Premises and the public
and common areas of the Building in good order and condition consistent with the
operation and maintenance of a first-class office building in downtown Seattle,
Washington. Landlord shall furnish the Premises with electrictricity for normal
office use, including lighting and operation of low power usage office machines,
including photocopy machines and personal computers (not including a computer
room), water and elevator service at all times during the term of the Lease.
Landlord shall also provide lamp replacement service for Building Standard light
fixtures, toilet room supplies, window washing at reasonable intervals, and
customary Building janitorial, as described in Exhibit D. No janitorial service
shall be provided Saturdays, Sundays or legal holidays. The costs of any
janitorial or other service provided by Landlord to Tenant which are in addition
to the services ordinarily provided Building tenants shall be repaid by Tenant
as Additional Rent upon receipt of ▇▇▇▇▇▇▇▇ therefor.
From 7:00 a.m. to 6:00 p.m. on weekdays and from 8:00 a.m. to 1:00 p.m. on
Saturdays, excluding legal holidays ("Normal Business Hours"), Landlord shall
furnish to the Premises heat and air conditioning. If requested by Tenant,
Landlord shall furnish heat and air conditioning at times other than Normal
Business Hours and the cost of such services, as established by Landlord, shall
be paid by Tenant as Additional Rent upon receipt of ▇▇▇▇▇▇▇▇ therefor. During
other than Normal Business Hours, Landord may restrict access to the Building in
accordance with the Building's security system, provided that Tenant shall have
at all times during the term of this Lease (24 hours of all days) reasonable
access to the Premixs.
(b) INTERRUPTION OF SERVICES. Landord shall not be liable for any loss,
injury or damage to person or property caused by or resulting from any
variation, interruption, or failure of such services due to any cause
whatsoever,except for the negligence or willful misconduct of Landlord or its
agents, employees or contractors. No temporary interruption or failure of such
services incident to the making of repairs, alterations or improvements or due
to accident, strike or conditions or events beyond Landlord's reasonable control
shall be deemed an eviction of Tenant or relieve Tenant from any of Tenant's
obligations hereunder; provided, however, if such interruption or failure shall
continue for five (5) business days, Tenant's Rent hereunder shall be thereafter
abated to the extent the Premises are thereby rendered untenantable for Tenant's
normal business operations until such services shall be restored.
(c) ADDITIONAL SERVLCES. The Building Standard mechanical system is
designed to accommodate heating loads generated by lights and equipment using up
to 2.7 ▇▇▇▇▇ per square foot. Before installing lights and equipment in the
Premises which in the aggregate exceed such amount, Tenant shall obtain the
written permission of Landiord. Landlord may refuse to grant such permission
unless Tenant shall agree to pay the costs of Landord for installation of
supplementary air conditioning or electrical systems as necessitated by such
equipment or lights.
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In addition, Tenant shall in advance, as Additional Rent on the first day
of each month during the Lease term, pay Landord the reasonable amount estimated
by Landlord as the cost of furnishing electricity for the operation of such
equipment or lights and the reasonable amount estimated by Landlord as the cost
of operation and maintenance of supplementary air conditioning units
necessitated by Tenant's use of such equipment or lights. Landlord shall be
entitled to install and operate at Tenant's cost a monitoring/metering system
in the Premises to measure the added demands on electrical, heating,
ventilation and air conditioning systems resulting from such equipment and
lights and from Tenant's after hours heating, ventliation and air conditioning
service requirements. Tenant shall comply with Landlord's reasonable
instructions for the use of drapes and thermostats in the Building.
10. COSTS OF OPERATIONS AND REAL ESTATE TAXES: See also Exhibit C, Item 9.
(a) ADDITIONAL RENT Tenant shall pay as Additional Rent its pro rata share
of increases in operating costs in excess of operating costs in the base year
and taxes in excess of the base year taxes determined by multiplying the 1993
King County milage rate by the fully assessed value of the Building.("base
amounts"). Operating costs shall be adjusted to reflect changes in the
occupancy level in the Building so that Additional Rent shall not reflect
changes in operating costs to the extent attributable to changes in the
occupancy.
(b) DEFINITIONS For the purposes of this section, "taxes" shall mean taxes
and assessments on real and personal property payable during any calendar year
with respect to the Land, the Building and all property of landord, real or
personal, used directly in the operation of the Building and located in or on
the Building, together with any taxes levied or assessed in addition to or in
lieu of any such taxes or any tax upon leasing of the Building or the rents
collected (excluding any net income, business and occupation, or franchise tax).
"Operating costs" or "costs" shall mean all expenses of Landlord for
maintaining, operating and repairing the Land and Building and the personal
property used in connection therewith including without limitation insurance
premiums, utilities, customary management fees and other expenses which in
accordance with generally accepted accounting and mangement practices would be
considered an expense of maintaining, operating or repairing the Building;
excluding, however: (i) costs of any special services rendered to individual
tenants for which a separate charge is collected; (ii) leasing commissions and
other leasing expenses; and (iii) costs of improvements required to be
capitalized in accordance with generally accepted accounting principles, except
operating costs shall include amortization of capital improvements (A) made
subsequent to initial development of the Building which are designed with a
reasonable probability of improving the operating efficiency of the Building,
provided that such amortization shall not exceed the reasonably expected savings
in operating costs; or, (B) which are reasonably responsive to requirements
imposed with respect to the Building under any amendment to any applicable
building, health safety, fire, nondiscrimination, or similar law or See Exhibit
regulation ("law"), or any new law, or any new interpretation of a law. See
Exhibit C, Section II. In the event the average occupancy level of the Building
for the base year and/or any subsequent year was or is not one hundred percent
(100%) or more of full occupancy, then the operating costs for such year shall
be proportionately adjusted by Landlord to reflect those costs which would have
occurred had the Buildings been one hundred percent (100%) occupied during such
year.
'Tenant's pro rata sbare' shell mean a percentage determined by dividing the
rentable area of the Premises by tbe rentable area of the Buildin5. If the
rentable area of the Premises or the Buildir,; shaO change, Tenant's pro rata
share shall be adjusted accordingly.
"Year" shall mean the calendar year. "Base year" means the 1993 calendar year.
(c) Estimated Cost At the begining of each calendar year after the base year,
Landlord shall furnish Tenant an itemized written statement of estimated
operating costs and taxes for such calendar year: a calculation of the amount,
if any, by which such estimated costs and taxes will exceed the relevant base
amounts; and a calculation of Tenant's pro rata share of any such amount. Tenant
shall pay one twelfth (1/12) of that amount as Additional Rent for each month
during the calendar year. See Exhibit C, Section 11. lf at any time during the
year Landlord reasonably believes that the actual costs or taxes will vary from
such estimated costs or taxes by more than five percent (5%), Landlord may by
written notice to Tenant revise the estirnate for such calendar year , and
Additional Rent for the balance of such year shall be paid based upon such
revised estimates
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(d) ACTUAL COSTS. Within ninety (90) days after the end of each calendar year
after the base year OR AS SOON THEREAFTER AS PRACTICABLE, LANDLORD SHALL deliver
to Tenant a written statement setting forth Tenant's pro rata share of the
actual operating costs and taxes in excess of the base amounts during the
preceding year. See Exhibit C Section 11. If the actual operating costs in
excess of the base amount or actual taxes in excess of the base amount, or both
exceed the estimates for each paid by Tenant during the year, Tenant SHALL PAY
THE AMOUNT OF SUCH EXCESS TO LANDLORD AS Additional Rent within thirty (30) days
after receipt of SUCH STATEMENT. IF THE ACTUAL operating costs in excess of the
base amount or actual taxes in excess of the base amount, or both, are less than
the amount paid by Tenant to Landlord, then the amount of such overpayment by
Tenant shall be credited against the next Rent payable by Tenant hereunder, or,
if the Lease has been terminated or the Lease term has expired, the amount of
such overpayment shall be refunded to Tenant together with such statement.
(e) RECORDS AND ADLUSTMENTS. Landlord shall keep records showing all
expenditures made in connection with operating costs and taxes and such records
shall be available for inspection by Tenant. Operating costs and taxes shall be
prorated for any portion of a year at the beginning or end of the term of this
Lease. Notwithstanding this Section 10, the Rent payable by Tenant shall in no
event be less than the Rent specified in Section 1(g) hereof.
(F} Personal PROPERTV TAXES. Tenant shall pay directly to the taxing authority
personal property taxes with respect to property of Tenant located on the
Premises or in the Building. "Property of Tenant" shall include all
improvements which are paid for by Tenant and "personal property taxes" shall
include all property taxes assessed against the property of Tenant, whether
assessed as real or personal property.
11. CARE OF PREMISES: Landlord shall perform all normal maintenance and repairs
to the Premises which Landlord reasonably determines necessary to maintain the
Premises and the Building as a first-class office building; provided that
Landlord shall not be required to maintain or repair any Property of Tenant or
any appliances (such as water heaters, refrigerators, microwaves and the like)
which are part of the Premises. Tenant shall take good care of the Premises.
Tenant shall not make any alterations, additions or improvements
(":Alterations") in or to the Premises, or make changes to locks structural
changes or add, disturb or in any way change any plumbing or wiring ("Changes")
without first obtaining the written consent of Landlordd except Tenant will be
permitted to make minor changes in the electircal outlets as long as such work
is done to code and by an electrical contractor approved by Landlord and Tenant
provides Landlord with written notice of change in work within 2 weeks and pays
resonable cost of maintaining accurate as-built drawings, and, where
appropriate, in acrordance plans and specifications approved by ▇▇▇▇▇▇▇▇.▇▇
any event, all Alterations shall be scheduled and coordinated through Landlord.
Any Alterations or Changes required to be made to the Premises because of
Tenant's uniqe and specific use thereof by any amendment to any applicable
building, health, safety, fire, nondiscrimination, or similar law or regulation
('law'), or any new law shall be made at Tenant's sole expense and shall subject
to prior written consent of Landlord. Tenant shall reimburse Landlord for any
reasonable sums expended for examination and approval of architeaural or
mechanical plans and specifcations of the Alterations and Changes and direct
costs reasonably incurred during any inspection or supervision or Changes. All
damages or injury done to the Premises or Building by Tenant or by any persons
who may be in or upon the Premises or Building with the express or implied
consent of Tenant, including but not limited to the cracking or breaking of any
glass of windows and doors, shall be paid for by Tenant, unless the damace or
injury is caused by the ngeligence or willfull misconduct of Landlord or its
agents, employees or contractors.
ACCESS: Tenant shall permit Landlord and its agents to enter into and upon
thePremises at all reasonable times after resonable prior notice for the purpose
of inspecting the same or for the purpose of cleaning, repairing, altering or
improving the Premises or the Building. Upon reasonable notice, Landlord shall
have the right to enter the Premises for the purpose of showing the Premises to
prospective tenants within the period of one hundred eighty (180) days prior to
the expiration or sooner termination of the Lease term.
13. DAMAGE OR DESTRUCTION:
(a) Damage and Repair. If the Building is damaged by fire or any other cause to
such extent that the cost of restoration, as reasonably estimated by Landlord,
will equal or exceed thirty percent (30%) of the replacement value of the
Building (exclusive of foundations) just prior to the occurrence of the damage,
or if insurance proceeds sufficient for restoration are for any reason
unavailable, then Landlord may no later than the sixtieth day following the
damage, give Tenant a to terminate this Lease. In the event of such election,
this Lease shall be deemed to terminate on the third day after the giving of
such notice, and Tenant shall surrender possession of the Premises within a
reasonable time thereafter, and the Rent and Additional Rent shall be
apportioned as of the date of Tenant's surrender and any rent and Additional
Rent paid for any period beyond such date shall be repaid to Tenant with 30
business days after Tenant's surrender. If cost of restoration as estimated by
Landlord shall amount to less than
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thirty percent (30%) of said replacement value of the Building and insurance
proceeds sufficient for restoration are available, Landlord shall restore the
Building and the Premises (with improvements substantiallycomparable in quality
to the improvements to the Premises originally provided or paid for by Landlord
hereunder) with reasonable promptness, subject to delays beyond Landlord's
control and delays in the making of insurance adjustments by Landlord. To the
extent that the Premises are rendered untenantable, the Rent shall
proportionatley ▇▇▇▇▇ from the date of the fire or other cause of damage, except
in the event such damage resulted from or was contributed to directly or
indirectly, by the act, fault or neglet of Tenant, Tenant's officers,
contractors, agents customers or licensees, in which event Rent shall ▇▇▇▇▇ only
to the extent Landlord receives proceeds from any rental income insurance policy
to compensate Landlord for loss of Rent hereunder. No damages, compersation or
claim shall be payable by Landlord for inconvenience, loss of business or
annoyance arising from any repair or restoration of any portion of the Premises
or the building. Notwithstanding the foregoing, if Landlord is obligated to or
elects to restore the Building, and the Premises, or access to the Premises, has
been affected by the casualty so that Tenant, is its reasonable opinion, can no
longer carry on its normal business operations, Tenant shall bave the option to
terminate this Lease upon writtn notice to Landlord prior to commencement of
restoration if Landlord estimates such restoration will not be completed with 12
months of the date of the fire or other cause of damage, if there is 36 months
or more remaining in the Lease term, and within 6 months of the date of the
cause of damage, if there is less that 36 months remaining in the Lease term.
(b) DESTRUCTION DURING LAST YEAR OF TERM. In case the Building or the Premises
shall be substantially destroyed by fire or other cause at any time during the
last twelve (12) months of the term of of this lease, either Landlord or Tenant
may terminate this Lease upon written notice to the other within sixty (60) days
of the date of such I
destruaion.
(c) TENANT IMPROVEMENT. Landlord will not carry insurance of any kind on any
improvements paid for by Tenant as provided in Exhibit B or on Tenant's
furniture, furnishings,fixtures, equipment or appurtenaaces of Tenant under this
Lease and Landlord shall not be obligated to repair any damages thereto or
replace the same.
14. WAIVER OF SUBROGATION: Whether the loss or damage is due to the negligence
of either Landlord or Tenant or any other cause, Landord and Tenant each hereby
release and relieve the other, its agents or employees, from responsibility for,
and waive its entire claim of recovery for (I) any loss or damage to its real or
personal property located anywhere in the Buiiding, including the building
itself, arising out of or incident to the occurrence of any of the perils which
are covered by its property and related insurance policies, and (ii) any loss
resulting from business interruption at the Premises or loss of rental income
from the Building, arising out of or incident to the occurrence of any of the
perils by any business interruption or loss of rental income iasurance policy
held by it. Each party shall use best efforts to cause its insurance carriers to
consent to the foregoing waiver of , rights of subrogation against the other
party. Notwithstanding the foregoing, no such release shall be effective except
to the extent the applicable insurance policy or policies shall expressly permit
such a release or contain a waiver of the carrier's right to be subrogated.
15. INDEMNIFICATION: Tenant shall indemnify, defend and hold Landlord harmless
from and against liabilities, damages, losses, claims and expenses, including
reasonable attorneys fees, arising from anv act, omission, or negligence of
Tenant or its officers contractors, licensees, agents, employees, clients or
customers in or about the Building or Premises arising from any injury or damage
to any person or property, occurring in or about the Building or Premises or
arising from any breach or default under this Lease by Tenant. The foregoing
provisions shall not be construed to make Tenant responsible for loss damage,
liability or expense resulting from injuries to third parties or property to the
extent caused by the negligence of Landlord, or its officers, contractors,
licensees, agents employees, clients or customers or other tenants of the
Building.
Landlord shall indemnify, defend and hold Tenant harmless from and against all
liabilities, damages, losses, claims and expenses, including reasonable
attorneys fees, arising from any act, omission or negligence of Landlord or its
officers, contractors, licensees, agents or employees in or about the Building
or Premises, or from any breach or default under this Lease by Landlord.
Landlord shall not be liable for any loss or damage to persons or property
sustained by Tenant or other persons, which may be caused by theft, or by any
act or neglegent of Tenant or any other tenant or occupant of the Building or
any third parties.
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16. INSURANCE
(a) Tenent's Insurance. Tenant shall, throughout the term of this Lease and any
renewal hereof, at its own expease, keep and maintain in full force and
effect, a policy of commercial general liability insurance, occurrence form,
with Landlord as additional insured, including, to the extent insurable under
commonly available commercail general liability insurance policies contractual
liability coverage covering Tenant's obligations under Section 15, insuring
Tenant's activities upon, in or about the Premises or the Building against
claims of bodily injury or death or property damage or loss with a limit of
not less than One Million Dollars ($1,000,000) combined single limit per
occurrence. Tenent shall carry what is commonly referred to as "all risk"
coverage insurance (earthquake and flood) on Tenant's leasehold improvements in
an amount not less than one hundred percent (100%) of the current replacement
value thereof.
(b) INSURANCE POLICV REQUIREMENT. All insurance policies required under this
Section 16 shall be with companies reasonably approved by Landlord and each
policy shall provide tbat it is not subject to cancellation or reduction in
limits except after prior written notice to Landlord, except after ten (10)
days' prior written notice to Landlord in cases of non-payment of premium.
Tenant shall deliver to Landlord upon tbe Commencemeat Date, and from time to
time thereafter, certificates evideacing the existeace and amounts of all such
policies.
(c) Landlord's Insurance. Landlord shall maintain all risk insurance coverage
(excluding flood and earthquake) in the amount of the Building's replacement
cost.
17.ASSINMENT AND SUBLETTING:
(a) ASSIGNMENT OR SUBLEASE. Tenant shall not assign, mortgage, encumber or
otherwise transfer this Lease or sublet the whole or any part of the Premises
without in each case first obtaining Landlord's prior written consent. Such
consent shall not be unreasonably withheld or delayed and shall be considered
given if not denied in writing with 10 business days of Tenant's request.
Notwithstanding the foregoing, landlord may withhold its consent if in
Landlord's judgment occupancy by any proposed assignee, subtenant or other
transferee: (i) is not consistent with the maintenance and operation of a
first-class office building due to the nature of the proposed occupant's
business or the manner of conducting its BUSINESS OR ITS EXPERIENCE or
reputation in the community, or (ii) is likely to cause disturbance to the
normal use and occupancy of the Building, (2) Landlord may withhold in its
absolute and sole discretion, consent to any mortgage, hypothecation, pledge
or other encumbrance of any interest in this Lease or the Premises by Tenant or
any subtenant, whereby this Lease or any interest therein becomes collateral
for any obligation of Tenant; and (3) Landlord may withhold its consent to the
extent Landlord determines necessary to comply with a restriction on use of the
Premises, the Building or the Land contained in any lease, mortgage, or other
recorded agreement or instrument by which the landlord is bound or to which any
such property is subject. No such assignment, subletting or other transfer shall
relieve Tenant of any liability under this Lease. Any subleasing profits, after
deducting Tenant's reasonable costs of subletting, shall be the property of
Landlord, Consent to any such assignment, subletting or shall not operate as a
waiver of the necessity for consent to any subsequent assignment, subletting or
transfer. In lieu of granting any such consent for subleasing or assignment for
the balance of the Lease term, for a full floor, Landlord reserves the right to
terminate this Lease or, in the case of a subletting of less than all the
Premises, to terminate this Lease with respect to such portion of the Premises,
as of the proposed effective date of such subletting or assignment, in which
event Landlord may enter into the relationship of landlord and tenant with such
proposed assignee or subtenant based upon the Rent and other compensation and
terms agreed to by such subtenant or assignee and otherwise upon the terms and
conditions of this Lease. In connection with each request for an assignment or
subletting, Tenant shall pay $300.00 for the cost of processing such assignment
or subletting, including attorneys fees, upon demand of Landlord. Tenant shall
provide Landlord with copieS of all assignments, subleases and assumption
instruments.
(b) ASSIGNEE OBLIGATIONS. As a condition to Landlord's approval, any potential
assignee otherwise approved by Landlord shall assume in writing all obligations
of Tenant under this Lease and shall be jointly and severally liable with Tenant
for the payment of Rent and performance all terms, covenants and conditions of
this Lease.
(c) Sublessee Obligations. Any sublessee shall assume all obligations of Tenant
as to that portion of the Premises which is subleased to such sublessee and
shall be jointly and severally liable with Tenant for rental and other payments
and performance of all terms covenants, and conditions of this Lease with
respect to such portion of the Premises.
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SIGNS: Tenant shall not place or in any manner display any sign, graphics or any
advertising matter anywhere in or about the Premises or the Building at places
visible (either directly or indirectly) from anywhere outside the Premises
without first obtaining Landlord's written consent Any such consent by Landlord
shall be upon the understanding and condition that Tenant shall remove the same
at the expiration or sooner termination of this Lease and Tenant shall repair
any damage to the Premises or the Building caused thereby. Landlord shall not
withhold its consent to normal Tenant identification signs and logos which are
consistent with the Building signage and graphics program.
19. LIENS AND INSOLVENCY:
(a) Liens Tenant shall keep its interest in this Lease and any property of
Tenant (OTHER THAN UNATTACHED PERSONAL PROPERTY) and the Premises the Land and
the Building free from any liens arising out of any work performed or materials
ordered or obligations incurred by or on behalf of Tenant and hereby indemnifies
and holds Landlord harmless from any liability from any such lien, including,
without limitation, liens arising from any work performed pursuant to Section VI
Exhibit B hereto. in the event any Lien is filed against the Building, the Land
or the Premises by any claiming by, through or under Tenant, Tenant shad, upon
request of Landlord, at Tenant's expense immediately either cause such Lien to
be released of record or furnish to Landlord a bond in form and amount and
issued by a surety reasonably satisfactory to Landlord, indemnifying Landlord,
the Land and the Building against all liability, costs and expenses including
reasonable attorneys fees which Landlord may incur as a result thereof. Provided
that such bond has been furnished to Landlord, Tenant, at its sole cost and
expense and after written notice to Landlord, may contest, by appropriate
proceedings conducted in good faith and with due diligence, any lien,
encumbrance or charge against the Premises arising from work done or materials
provided to or for Tenant, if, and only if, such proceedings suspend the
collection thereof against Landlord, Tenant and the Premises and neither the
Premises, the Building nor the Land nor any part thereof or interest therein is
or will be in any danger of befog sold, forfeited or lost.
(b) INSOLVENCY. If Tenant becomes insolvent or voluntarily or involuntarily
becomes a debtor or alleged debtor in a bankruptcy proceeding, or if a receiver,
assignee or other liquidating officer is appointed for the business of Tenant,
Landlord at its option may terminate this Lease and Tenant's right of possession
under this Lease and in no event shall this Lease or any or privileges hereunder
be an asset of Tenant in any bankruptcy, insolvency or reorganization
proceeding.
20. DEFAULT:
(a) CUMULATIVE REMEDIES. All rights of Landlord herein enumerated shall be
cumulative, and none shall exclude any other right or remedy allowed by law. In
addition to the other remedies provided in this Lease, Landlord shall be
entitled to restrain by injunction the violation or attempted violation of any
of the covenants, agreements or conditions of this Lease.
(b) TENANT'S RIGHT TO CURE. Tenant shall have a period of five (5) business
days from the date of written notice from Landlord to Tenant within which to
cure any default in the payment of Rent, Additional Rent or other sums due
hereunder. Tenant shall have a period of fifteen (15) days from the date of
written notice from Landlord to Tenant within which to cure any other default
hereunder which is capable of being cured by Tenant; provided, however, that
with respect to any default capable of being cured by Tenant but which cannot be
cured within such fifteen (L5) day period" the default shall not be deemed to be
uncured if Tenant commences to cure within fifteen (15) days and for so long as
Tenant is diligently prosecuting the cure thereof.
(d) LANDLORD'S REENTRY. Upon a default under this Lease by Tenant and
expiration of any applicable cure period, Landlord, at its option, may
enter the Premises or any part thereof, and expel, remove or put out
Tenant or any other persons who may be thereon, together with all
personal property found therein; and Landlord may terminate this
Lease, or it may from time to time, without terminating this Lease and
as agent of Tenant, relet the Premises or any part thereof for such
term or terms (which may be for a term less than or extending beyond
the term hereof) and at such rental or rentals and upon such other
terms and conditions as Landlord in its sole discretion may deem
advisable, with the right to repair, remodel and change the Premises,
Tenant remaining liable for any deficiency computed as provided in
Section 20(e). In the case of any default, reentry and/or
dispossession by summary proceedings or otherwise, all Rent and
Additional Rent shall become due thereupon and be paid up to the time
of such reentry or dispossession, together with such expenses as
Landlord may reasonably
61
incur for attorneys fees, advertising expenses, brokerage fees and/or
putting the Premises in good order or preparing the same for re-
rental, together with interest thereon as provided in Section 35(f)
hereof, accruing from the date of any such expenditure by Landlord.
(e) RELETTING THE PREMISES. At the option of Landlord, rents received by
Landlord from such reletting shall be applied ftrst to the payment of any
indebtedness from Tenant to Landlord other than Rent and Additional Rent due
hereunder second, to the payment of reasonable costs and expenses of such
reletting and including but not limited to, attorneys fees, advertising fees and
brokerage fees, and to the payment of any repairs, remodeling and changes in the
Premises; third, to the payment of Rent and Additional Rent due and to become
due hereunder, and, if after so applying said Rents there is any deficiency in
the Rent or Additional Rent to be paid by Tenant under this Lease, Tenant shall
pay any deficiency to Landlord monthly on the dates specified herein and any
payment made or suits brought to collect the amount of the deficiency for any
month shall not prejudice in any way the right of Landlord to collect the
deficiency for any subsequent month. Subject to any applicable duty to mitigate
damages, the failure of Landlord to relate the Premises or any part or parts
thereof shall not release or affect Tenant's liability hereunder, nor shall
Landlord be liable for failure to relate, or in the event of reletting for
failure to covect the Rent thereof, and in no event shall Tenant be entitled to
receive any excess of net Rents collected over sums payable by Tenant to
Landlord hereunder. No such reentry or taking possession of the Premises shall
be construed as an election on Landlord's part to terminate this Lease unless a
written notice of such intention be given to Tenant. Notwithstanding any such
reletting without termination, Landlord may at any time thereafter elect to
terminate this Lease for such previous breach and default. Should Landlord at
any time terminate this Lease by reason of any default, in addition to any other
remedy it may have, it may recover from Tenant the amount of Rent and Additional
Rent reserved in this Lease for the balance of the Term, as it may have been
extended, in excess of the then fair market rental value of the Premises for the
same period, plus all court costs and reasonable attorneys fees incurred by
Landlord in the collection of the same.
(t) NONPAYNENT OT ADDITIONAL RENT. All costs and expenses which Tenant
assumes or agrees to pay to Landlord pursuant to this Lease shall be deemed
Additional Rent. and, in the event of nonpayment thereof, Landlord shall have
all the rights and remedies herein provided for in case of nonpayment of Rent.
21. PRIORITY: This Lease shall be subordinate to any fIrst mortgage or deed of
trust (and any other mortgage or deed of rust upon the written election of
Landlord) now existing or hereafter placed upon the Land, the Building or the
Premises, created by or at the instance of Landlord, and to any and all advances
to be made thereunder and to interest thereon and all modifications, renewals
and replacements or extensions thereof ("Landlord's Mortgage"). Upon request of
such holder, Tenant shall attorn to the holder of any Landlord's Mortgage or any
person or persons purchasing or otherwise acquiring the Land, Building or
Premises at any sale or other proceeding under any Landlord's Mortgage, provided
that such holder of Landlord's mortgage or person(s) purchasing or otherwise
acquireing the Land, Building or Premises agrees in writing to recognize all of
Tenant's rights under this Lease and to perform all the obligations of Landlord
under this Lease. Tenant shall properly execute, acknowledge and deliver
documents which the Holder of any Landlord's Mortgage may reasonably require to
effectuate the provisions of this Section 21. Lanelord shall provide to Tenant a
Subordination, Non-Disturbance and Attornment agreenent in a form reasonably
acceptable to Tenant with 45 days of Lease execution.
22. SURRENDER OF POSSESSION: Subject to the terms of Section 13 relating to
damage and destruction, upon expiration or sooner termination of this Lease,
Tenant shall promptly and peacefully surrender the Premises to Landlord in as
good condition as when received by Tenant from Landlord or as thereafter
improved, reasonable use, wear and tear excepted.
23. REMOVAL OF PROPERTY: Tenant shall remove all of its moveable personal
property and trade fixtures paid for by Tenant at the expiration or sooner
termination of this Lease, and shall pay Landlord any damages for injury to the
Premises or Building resulting from such removal; and all other improvements and
additions to thePremises shall thereupon become the property of Landlord.
24. NON-WAIVER Waiver by Landlord or Tenant of any term, covenant or
condition herein contained or any breach thereof shall not be deemed to be a
waiver of such term, covenant, or condition or of any subsequent breach of the
same or any other term, covenant, or condition herein contained. The subsequent
acceptance of Rent or Additional Rent hereunder by Landlord shall not be deemed
to be a waiver of any preceding breach by Tenant of any term, covenant or
condition of this Lease, other than the failure of Tenant to pay the particular
Rent or Additional Rent so accepted, regardless of Landlord's knowledge of such
preceding breach at the time of acceptance of such Rent or Additional Rent.
62
2S. HOLDOVER If Tenant shall with the written consent of Lantlord, hold
over after the expiration of the term of this Lease, such tenant shall be deemed
a month-to-month tenant which may be terminated as provided by applicable law.
During such ▇▇▇▇▇▇, Tenant shall be bound by all of the terms covenants and
conditions herein so far as applicable, except rental which shall be the greater
of (a) the then quoted rates for similar space in the Building or (b) the Rent
and Additional Rent stated herein.
26. CONDEMNATION:
(a) ENTIRE TAKING. If all of the Premises or such portions of the Building
as may be required for the reasonable use of the Premises are taken by eminent
domain, this Lease shall automatically terminate as of the date title vests in
the condemning authority. In the event of a taking of a material part of but
less than all of the Building, where Landlord shall determine that the remaining
portions of the Building cannot be economically and effectively used by it
"whether on account of physical, economic, aesthetic or other reasons) or where
Landlord determines the Building should be restored in such a way as to
materially alter the Premises, Landlord shall forward a written notice to Tenant
of such determination not more than sixty (60) days after the date of taking.
The term of this Lease shall expire upon such date as Landlord shall specify in
such notice but not earlier than sixty (60) days after the date of such notice.
(b) PARTIAL TAKING Subject to the provisions of the preceding Section 26(a), in
case of taking of a part of the Premises or a portion of the Building not
required for the reasonable use of the Premises then this Lease shall continue
in full force and effect and the Rent shall be equitably reduced based on the
proportion by which the floor area of the Premises is reduced, such Rent
retuction to be effective as of the date title to such portion vests in the
condemning authority. If a portion of the Premises shall be so taken which
renders the remainder of the Premises unsuitable for continued occupancy by
Tenant under this Lease, Tenant may terminate this Lease by written notice to
Landlord no later than sixty (60) ▇▇▇▇ after the date of such taxing and the
term of this Lease shall expire upon such date as Tenant shall specify in such
notice not later than sixty (60) days after the date of such notice.
(c) AWARDS AND DAMAGES. Landlord reserves all rights to damages to the Premises
for any partial, constructive, or entire taking by eminent domain, and Tenant
hereby assigns to Landlord any right Tenant may have to surh damages or award.
Tenant shall make no claim against landlord for damages for termination of the
leasehold interest or interference with Tenant's business. Tenant shall have the
right, however, to claim and recover fromthe condemning authority compensation
for any loss to which Tenant may be put for Tenant's moving expenses, business
interruption or taking of Tenant's personal pronerty and leasehold improvements
paid for by Tenant, induding Tenant's leasehold interest paid for by Tenant
without reimbursement by Landlord, provided that said damages may be claimed
only if they are awarded separately in, the eminent domain proceedings and not
out of or as part of the damages recoverable by landlord.
27. NOTICES: All notices under this Lease shall be in writing and delivered in
person or sent by registered or certified mail, postage prepaid, or by facsimile
with confirmation by telephone, to Landlord and to Tenant at the Notice
Addresses provided in Section 1(j) (provided that after the Commencement Date
any such notice maybe mailed or delivered by hand to Tenant at the Premises and
to Landlord's principal office in the Building) and to the holder of any
mortgage or deed of trust at such place as such holder shall specify notices
shall to Tenant in writing or such other addresses as may from time to time be
designated by any such party in writing. Personally-delivered ntoices shall be
deemed given on the date delivered. Notices mailed as aforesaid shall be deemed
given on the date of such mailing. Notices delivered on the date by facsimile
shall be deemed given on the date receipt is confirmed by telephone.
28. COSTS AND ATTORNEYS FEES: If Tenant or Landlord shall bring any action for
any relief against the other, declaratory or otherwise, arising out of this
Lease, including any suit by Landlord for the recoveery of Rent, Additional Rent
or other payments hereunder or possession of the Premises, each party shall and
hereby does, to the extent permitted by law, waive trial by jury and the losing
party shall pay the prevailing party a reasonable sum for attorneys fees in such
suit, at trial and on appeal, and such attorneys fees shall be deemed to have
accrued on the commencement of such action.
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29. LANDLORD'S LlABILllY: Anything in this Lease to the contrary
notwithstanding, covenants, undertakings and aagreements herein made on the part
of Landlord are made and intended not as personal covenants, undertakings and
agreements for the purpose of binding Landlord personally or the assets of
Landlord except Landlord's interest in the Premises and Building, but are made
and intended for the purpose of binding only the Landlord's interest in the
Premises and Building, as the same may from time to time be encumbered. No
personal liability or personal responsibility is assumed by, nor shall at any
time be asserted or enforceable against Landlord or its partners or their
respective heirs, legal representatives, successors or assigns on account of the
Lease or an account of any covenant, undertaking or agreement of Landlord in
this Lease contained.
30. LANDLORD'S CONSENT: Except as specified in other provisions of this Lease,
whenever Landlord's consent is required under the terms hereof, such consent
shall not be unreasonably withheld, or delayed, and sball be considered qiven if
not denied ln writingc within 10 business days of Tenant s request.
31. ESTOPPEL CERTIllCATES: Tenant shall, from time to time, upon written request
of Landlord, execute, acknowledge and deliver to Landlord or its designee a
written statement stating the date this Lease was executed and the date it
expires; the date the term commenced and thc date Tenant accepted the Premises;
the amount of minimum monthly Rent and the date to which such Rent has been
paid; and certifying to the extent true: That this Lease is in full force and
effect; that all conditions under this Lease to be performed by the Landlord
have been satisfied; that there are no claims, defenses or offsets which the
Tenant has against the enforcement of this Lease; that no Rent has been paid
more than one month in advance; and such other matters as Landlord may
reasonably request. Any such statement delivered pursuant to this paragraph may
be relied upon by a prospective purchaser of Landlord's interest or holder of
any mortgage upon Landlord's interest in the Building. If Tenant shall fail to
respond within ten (10) days of receipt by Tenant of a written request by
Landlord as herein provided, Tenant shall be deemed to have given such
certificate as above provided without modification and shall be deemed to have
admitted the accuracy of any information supplied by Landlord to a prospective
purchaser or mortgagee and to have certified that this Lease is in full force
and effect, that there are no uncured defaults in Landlord's performance, that
the security deposit is as stated in the Lease, and that not more than one
month's Rent has been paid in advance.
32. TRANSFER OF LANDLORD'S INTEREST: In the event of any transfers Landlord's
interest in the Premises or in the Building, other than a transfer for security
purposes only, the transferor shall be automatically relieved of any and all
obligations and liabilities on the part of Landlord accruing from and after the
date of such transfer and such transferee shall have no obligation or liability
with respect to any matter occurring or arising prior to the date of such
transfer. Tenant agrees to attorn to the transferee, provided the transferee
agrees in wiritng to assume all of Landlords obligations under this lease that
occur or arise after the date of such transfer.
33 RIGHT TO PERFORF: If Tenant shall fail to pay any sum of money required to
be paid by it hereunder or shall fail to commence to perform any other act on
its part to be performed hereunder, and such failure shall continue for ten (10)
days after writtn notice thereof by Landlord, Landlord may, but shall not be
obligated so to do, and without waiving or releasing Tenant from any obligations
of make such payment or perform any such other act on Tenant's part to be made
or performed as provided in tbis Lease. Landlord shall have (in addition to any
other right or remedy of Landlord) the same rights and remedies in the event of
the nonpayment of sums due under this Section 33 as in the case of default by
Tenant in tbe payment of Rent.
34. QUIET ENJOYMENT: Tenant shall have tbe right to the peaceable and quiet use
and enjoyment of the Premises subject to tbe provisions of tbis Lease, as long
as Tenant is not in default hereunder.
35. GENERAL
(a) Headings. Titles to Sections of this Lease are not a part of this Lease and
shall bave no effect upon tbe construction or interpretation of any part hereof.
(b) HEIRS AND ASSIGNS. Allof tbe covenant agreements, terms and conditions
contained in tbis Lease sball inure to and be binding upon the Landlord and
Tenant and tbeir respective heirs, executors, administrators, successors and
assigns
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(c) NO BROKERS. Landlord and tenant each represents and warrants to the other
that it has not engaged any broker except ▇▇▇▇▇▇▇ Partners,finder or other penon
who would be entitled to any commission or fees in respect to thc negotiation,
execution or delivery of tbis Lease and shall indemnify and hold harmless
against any loss, cost, liability or expcsse incurred as a result of any claim
asserted by any sucb broker, finder or other person on tbc basis of any
arrangements or agreements made or allged to have been made by or on behalf of
the other. The provisions of this Secion 35(c) shall not apply to brokers with
whome Landllord has an express written broke ragreement. See also Exhibit C,
Item 8.
(d) ENTLRE AEREEMENT. Tbis Lease contains all covenants and agreements between
Landllord and Tenant relating in any manner to tbe leasing, use and occupanq of
tbe Premises, to Tenant's use of tbe Building and other matters set forth in
tbis Lease. No prior agreements or understanding pertaining to tbe same
shall be valid or of any force or effea and the covenants and agreements of tbis
Leasc shall not be altered, modified or added to except in writing signed by
Landllord and Tenant.
(e) SEVERABILITY. Any provision of tbis Lease whicb shall prove to be invalid,
void or illegal sball in no way affect, impair or invalidate any other provision
hereof and tbe remaining provisions hereof shalt nevertbeless remain in full
force and effect.
(f) Overdue Payments. Any Rent, Additior al Rent or other sums payable byTenant
under tbis Lease whicb shall not be paid within 5 days of written notice by
Landlord that it is overdue shall bear interest, retroactive to the due date, at
a rate to tbree percentage points above tbe prime rate of interest published or
announced from time to time by Security Pacific Bank or its successor, or, in
the absence of any established prime rate, five percentage points over tbat
bank's rate for one year certificates of deposit, but not in excess of the
higbest lawful rate permitted under applicable laws, calculated from tbe
original due date thereof to thc datc of payment, however nothwithstanding
anytbing in tbis Section 35(f) to the contrary, the minimum overdue fee sball be
S10.00.
(g) FORCE MAIEURE. Except for the payment of Rent, Additional Rent or other sums
payable by Tenant, time periods of Tenant's or LandDord's performance under any
provisions of tbis Lease sbaD be extended for periods of time during which
Tenant's or Landlord's performance is prevented due to circumstances beyond
Tenant's or Landlord's reasonable control
(h) RIGBT TO CBANGE PUBLIC SPACES. Landlord sbail have tbe rigbt at any time
after tbe completion of tbe Building, witbout thereby creating an actual or
constructive eviction or incuring any any liability to Tenant therefor, to
change tbe arrangement or location of such of tbe following as are not contained
within tbe Premises or any part tbereof: entrances, passageways, doors and
doorways, corridors, stairs, toilets and other libe pubGc service portions of
the Building. Nevertbeless, in no event shall Landlord diminisb any service,
change tbe arrangement or location of tbe elevators servu~ tbe . Premises, make
any cbange whicb shall diminish the area of the Premisestor ▇▇▇▇ any change
whicb shall diminish the area of tbe Premises access to the Premises or the
number of parking spaces allocated to Tenant under the Lease,or make any change
which shall change the character of the Building from that of a first-class
offfice building in downtown Seattle, Washington.
(i) GOVERNING LAW. Tbis Lease sball be governed by and construed in accordance
with tbe laws of tbe state of Washington.
(j) BUILDING DIRECTORY. Landlord sball maintain in tbe lobby of thc Building a
directory whicb shall inciudc thc name of Tenant and any otber names reasonably
requested by Tenant in proportion to thc number of listings given to comparable
tenants of tbe Building. The number of 1istings shall be no more than 1/2, 500
net rentable square feet of the Premises.
(k) BUILDING NAME. The Buiiding will be known by such name as Landlord may
designate from time to time.
65
IN WITNESS WHEREOF tbis Lease has been executed as of tbe day and year first
above set forth
LANDLORD SECOND AND SENECA LIMITED PARTNERSHIP
a Washington limited partnership
BY: WRC Seneca Limited
Partnership,
Managing General Partner
BY ▇▇▇▇▇▇ Runstad Associates Limited Partnership,
a Washington limited partnership
Its General Partner
BY: ▇▇▇▇▇▇ Runstad and Company a Washington corporation
Its General Partner
By: /s/ H. ▇▇▇ ▇▇▇▇▇▇▇
------------------
Its H. ▇▇▇ ▇▇▇▇▇▇▇
President and Chief Executive Officer
TENANT: IMMUNEX CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its President
66
EXHIBIT C
ADDENDUM TO THE LEASE AGREEMENT BETWEEN
SECOND AND SENECA LIMITED PARTNERSHIP ("LANDLORD")
AND
IMMUNEX CORPORATION ("TENANT")
DATED DECEMBER 24, 1992
1. Rent
Rent shall be payable monthly on or before the first day of each month. Rent
for each of the 5 years of the initial Lease term shall be 1/12 of the annual
Rent calculated by multiplying the dollar amounts set forth below times the
number of rentable square feed then included within the Premises. Tenant shall
also pay Additional Rent as provided in Sections 9-10 o f the Lease.
Time Period $ per Square Foot per Year
Year 1 4-1-93 $16.00
Year 2 4-1-94 $17.00
Year 3 4-1-95 $18.00
Year 4 4-1-96 $19.00
Year 5 4-1-97 $19.00
2. Parking
Tenant shall have the right to lease from time to time (a) one parking stall in
the Building garage accessed from Seneca and Spring Streets ("Seneca Street
Garage"), on an unassigned,, self-park or, for no additional fee, Executive
Valet basis, at landlord's sole discretion, for every 1,000 rentable square fee
of space then included in the Premises, and (b) one parking stall in the
Building garage accessed from First avenue ("First Avenue Garage"), on an
unassigned self-park or, for no additional fee, Executive Valet basis at
Landlords sole discretion, for every 2,000 rentable square feet of space then
included in the Premises. The number of rentable square feet of space included
in the Space pocket (defined below) at any given time will not be considered for
purposes of calculating the number of parking spaces to which Tenant is entitled
at such time. Tenant shall lease each such space at market rate ( which is
currently $140 per month per stall), except that the rate for the First Avenue
Garage stalls leased by Tenant shall be $120 per month per stall for the first
2 years of the Lease term, and market rate thereafter.
for purposes of this Item 2, "market rate" shall mean the average rate then
charged for comparable parking stalls within a 3-block radius of the Building.
3. Relocation Allowance
In addition to the Tenant Improvement Allowance, Landlord shall provide Tenant
an allowance of $4.00 per rentable spare foot of space included in the Premises
to assist Tenant with the relocation costs of network cabling, physical
relocation and architectural drawings and design fees ("Relocation Allowance").
The Relocation Allowance for each rentable square foot of space initially
occupied by Tenant shall be paid to tenant on the Commencement Date an the
Relocation Allowance for each rentable square foot o space included in the Space
Pocket (defined below) or any Expansion Space shall be paid to Tenant on the
date that Tenant becomes obligated to begin paying Rent and Additional Rent for
such rentable square foot of space. If Landlord fails to pay the Relocation
Allowance, or any portion thereof within 60 days of the due date, Tenant shall
be entitled, upon written notice to Landlord, to deduct the unpaid amount from
the Rent and Additional Rent Tenant is obligated to pay landlord hereunder.
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4. Space Pockets
Tenant intends to occupy on the Commencement date only the portion of the
Premises that located on 10th floor of the Building. Tenant shall not be
required to occupy the portion of the Premises that is located on the 11th floor
on the Building until Tenant elects to do so. (The portion of the Premises
that is located on the 11th floor of the building that Tenant is not occupying
at the given time is referred to as the "Space Pocket"). Notwithstanding
anything in this lease to the contrary, Tenant shall have no obligation to pay
Rent or Additional Rent with respect to a particular rentable square foot of
space included within the Space Pocket until Tenant occupies such rentable
square foot of space for Permitted uses. Specifically, Tenant shall have no
obligation to pay Rent or Additional Rent with respect to a particular rentable
square foot of space included within the Space Pocket rentable square foot of
space included with the Space Pocket (a) while Tenant is doing its Tenant
improvement work in such rentable square foot of space or (b) if Tenant is
using such rentable square foot of space for storage purposes only. Tenant may
occupy the space pocket all at once or in portions but, if tenant elects to
occupy any portion of the space pocket before the first day of the 13th month of
the Lease term, such portion shall consist of at least 9,128 contiguous rentable
square feet of space. Prior to occupying any portion of the Space Pocket,
Tenant shall give Landlord written notice of the location of the portion it
intends to occupy.
Notwithstanding the foregoing (a on the first day of the 13th month of the lease
term, Tenant shall be obligated to pay rent and additional rent for 9,129 net
rentable square feet of space on the 11th floor of the Building, whether or not
Tenant then occupies it for Permitted uses; and (b) on the first day of the
25th month of the Lease term, Tenant shall be obligated to pay rent and
additional rent for the entire 11th floor of the building, whether or not tenant
then occupies it for permitted uses. The rent for each rentable square foot of
space on the 11th floor of the Building shall be as set forth in Item 1 of this
Addendum. The base Year for Additional rent for the 11th floor of the building
shall be 1993.
Tenant shall do its improvement work in the space pocket in accordance with
Exhibit B to this Lease. Such improvement work shall be completed by Tenant by
the first anniversary of the Commencement Date, or earlier if required by
tenant.
5. Options to Expand
Provided that Tenant is not in default of any term or condition of this lease at
the time it exercises its option under this Item 5, Landlord shall provide
Tenant the following option to lease additional space on the 12th floor of the
building (any space that tenant leases under this Item 5 is referred to as
"Expansion Space"):
A. Expansion option during the First 24 Months
During the first 24 months of the initial lease term, (a) Landlord shall not
lease any space on the 12th floor of the Building to any third-Party prospective
tenant ("Prospective Tenant") so long as there is sufficient space available to
meet the needs of such Prospective Tenant on other floors of the building and
(b) tenant shall have the option to lease all or at lease on half of the 12th
floor of the building as follows: If tenant desires to exercise its option to
lease any such space, Tenant shall deliver to landlord written notice of its
election to do so, which shall (I) describe the space that Tenant desires to
lease, and (ii) state the date upon which Tenant desires to else it ("requested
Possession date"), which date shall be no earlier than one full calendar month
after the date of such notice and no later than 2 full calendar months after the
date of such notice.
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B. Right of first Refusal
If (a) during the first 24 months of the lease term a Prospective Tenant offers
to lease space on the 12th floor of the Building and there is insufficient space
on other floors of the Building to met the needs of such Prospective Tenant or
(b) during the remainder of the lease term and any Extended Term (defined in
Item 6 of this Exhibit C) a Prospective Tenant offers to lease space on the 12th
floor of the building, Landlord shall first offer in writing to lease such space
to Tenant and shall give Tenant copy of any offer to lease such space that
Landlord receives from such Prospective Tenant. Tenant shall have (I) 10
working day s after the date that tenant received the copy of such offer, if
such offer is received within the first 24 month of the lease term, or (ii) 3
working days after the date Tenant receives a copy of such offer, is such offer
is received during the remainder of the Lease term or during any Extended term,
to notify Landlord in writing of its decision to lease the space on the 12th
floor of the Building that is the subject of such offer plus any other space
that is available on the 12th floor that Tenant then desires to lease. If
Tenant fails to notify Landlord in writing of its intent to lease such 12th
floor space that is subject of the prospective Tenant's offer. If Tenant elects
not to lease such space or if Tenant is deemed to have elected not to lease such
space, Landlord may lease such space to such Prospective Tenant without further
notice to Tenant. If landlord fails to enter into a binding lease for such
space such prospective tenant within 120 days after the applicable notification
period, Tenants option to lease such space shall continue in full force and
effect.
C. Incorporation of Expansion Space
If tenant leases expansion Space under this Item 5, tenant shall be delivered
possession of such space with improvements provided by landlord completed
pursuant to Section I of Exhibit B of this lease, and such space shall become
incorporated into the Premises (a) on the requested Possession date, if leased
under Item 5(A), or (b) if leased under Item 5 (B), on the commencement date
that was proposed in the Prospective Tenants offer, or, if no commencement date
was set forth in such offer on a date selected by Tenant which date shall be no
earlier than one full calendar month after the date Tenant notifies Landlord of
its electing to lease such expansion space and no later than 2 full months after
the date of such notice ("Expansion Space Commencement Date"). Such leasing
shall be upon all the term sand conditions of this lease that then apply to the
portion of the Premises previously leased by Enact (e.g., the rental rate shall
be Tenant's then current rental rate for the portion of the Premises previously
leased by Tenant and subject OT the same increases as apply to the portion of
the Premises previously leased by Tenant; the Base Year shall be the same as the
Base Year that is applicable to the portion of the Premises previously leased by
Tenant; and Tenant shall be entitled to additional parking spaces, as provided
in Item 2 of this Exhibit C) except that (I) Tenant shall be entitled to a
Tenant Improvement Allowance for the Expansion Space totaling 62.50CENTS per
rentable square foot of Expansion Space multiplied by the number of months
remaining in the initial Lease term and Extended Term for which Tenant has
previously exercised its option under Item 6 of this Exhibit C (computed as of
the Expansion Space Commencement Date), but the Tenant Improvement Allowance
for the Expansion space shall in no case be greater than $30.00 per rentable
square foot of the Expansion Space (Landlord shall apply the Tenant Improvement
Allowance for the Expansion Space in Accordance with Item VI (B) of Exhibit B);
(ii) Tenant shall be entitled to a Relocation Allowance for the Expansion Space
totaling 8.33CENTS per rentable square foot of Expansion Space multiplied by the
number of months remaining in the initial lease term and any Extended Term for
which Tenant has previously exercised its option under Item 6 of this Exhibit C
(computed as of the Expansion Space Commencement Date), but the Relocation
Allowance for the Expansion Space shall in no case be greater than $4.00 per
rentable square foot of Expansion Space (Landlord shall pay the relocation
allowance for the expansion space of the date that tenant becomes obligated to
begin paying rent and additional rent for such rentable square foot of space in
accordance with Item 2 of this Exhibit C); (ii) Tenant shall have no obligation
to pay rent or addition rent for he period commencing on the expansion space
commencement date and expiring on the earlier of (A) the date that tenant
occupies such space for Permitted uses or (b) the 90th day following the
expansion space commencement date (except that tenant shall be obligated to pay
Additional rent for utilities and insurance while it is doing its improvement
work in the Expansion Space and (iv) tenant shall not have the right to
designate any portion of the expansion space as a space pocket.
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D. Space Available Notice Following the First 24 months
On September 1, January 1, and May 1 of each year for the balance of the lease
term following the 24th month, Landlord shall notify Tenant in writing of the
space then available on the 12th floor. Tenant shall have 10 working days to
accept in writing to lease such 12th floor space. Should Tenant fail to notify
Landlord in writing of its intent to lease such 12th floor space within the 10-
working-days notification period, Tenant shall be deemed to have elected not to
lease such space at such time. However, if prior to the next notification date,
landlord received an offer to lease any space on the 12th floor from a
prospective tenant, landlord shall again notify Tenant as described in 5 (B)
"right of First Refusal" Section 5 (B) of this Exhibit C.
E. Personal to Tenant
The options provided for in this Item 5 are personal to Tenant and my be
exercised only by Tenant.
6. Option to Extend the Term of the Lease
Provided tenant is not in default of an term of condition of this lease at the
time its exercises it option under this Item 6, tenant shall have options to
extend the term of this lease for up to 3 additional periods of 2 years each
(which shall be called the "First Extended Term", the "Second extended Term",
and the "Third Extended Term", respectively.) The first extended term shall
commence on the day after the expiration date specified in section 1 (f) of this
Lease; the second extended term shall commence on the day after the first extend
term expires; and the third extended term shall commenced on the day after the
second extended term expires. The options provided for in this Item 6 are
personal to Tenant and my be exercised only by tenant. In order to exercise its
option to renew this lease for a particular extended term, tenant shall deliver
to landlord written notice no later than 10 months prior to the end of the
previous Term. during each extended term, all the terms and conditions as are
contained this lease shall apply except that:
(a) Rent as set forth in Section 1 (g) above shall be 95% of the Fair
Market Rate (defined below);
(b) The Base Year for such Extended Term shall be the calendar year in
which the Extended Term commences; and
(c) No further Space Pockets shall be defined.
"Fair market Rate" shall mean the projected fully serviced fair market
rental rate at the commencement of the Extended Term for space in the Building
and in comparable first-class office buildings of similar size and stature in
downtown Seattle, Washington, for a comparable term and with a comparable base
year.
landlord and Tenant shall seek to agree as to the Fair Market Rate within
30 days after Tenant gives landlord notice of its election to renew this Lease.
If landlord and Tenant shall not agree as to the FMR within such 30-day period
the FMR shall be determined by appraisal as follows: Within 5 days after the
expiration of the above mentioned 30-days waiting period an arbitrator shall be
mutually selected who is an MAI-designated appraiser in the City of Seattle with
at least 10 years' experience in appraising commercial office buildings in the
Seattle central business district. The arbitration shall be conducted as a
"baseball" arbitration whereby landlord and tenant shall each submit to the
arbitrator a specific fair market rate, and the arbitrator shall be obligated
select from he two rates submitted by the parties the one rate most closely
related to FMR (and the arbitrator shall not be allowed to compromise or
otherwise determine different amount). The arbitration shall be completed
within 10 business days following selection of an arbitrator. If the parties
are unable to agree upon a mutually acceptable arbitrator, then either party may
request that the president of the Seattle Chapter of the Appraisal Institute (or
its successor) designate a qualified arbitrator to so serve. The costs of nay
arbitrator shall be evenly split between Landlord and Tenant. The arbitrators
decision shall be delivered in writing and Landlord and Tenant and shall be
binding upon Landlord and Tenant, not subject to appeal.
70
7. Building Security
Landlord shall provide Tenant access to the Premises 24 hours per day, 365 days
per ear, via the Building's security access system. Landlord shall provide each
of Tenant's employees (including those hired after the term of this lease
commences) with one door key to the Premises and one access card at no
additional cost to Tenant.
8. Real Estate Commission
Landlord shall pay a real estate commission to Tenant's agent, ▇▇▇▇▇▇▇ Partners,
of $128,628.50 ($3.5 per rentable square foot leased by Tenant). One-half of
such commission shall be paid to ▇▇▇▇▇▇▇ Partners upon the completed execution
of this Lease, one-quarter of such commission shall be paid to ▇▇▇▇▇▇▇ Partners
upon Tenant's occupancy of the portion of the Premises located on the 10th floor
of the building and the balance of such commission shall be paid to ▇▇▇▇▇▇▇
Partners upon Tenant's occupancy of 9,125 net rentable square feet of the
Premises located on the 11th floor of the Building. In addition Landlord shall
pay a commission to ▇▇▇▇▇▇▇ Partners for any Expansion Space that becomes
incorporated into the Premises during the first 24 months of the Lease term.
The commission for Expansion Space shall be 3% of the gross rent payable for
such expansion space during the initial lease term. Landlord shall pay such
commission to ▇▇▇▇▇▇▇ Partners upon the tae that Tenant occupies such Expansion
Space. If landlord fails to pay any such commission to ▇▇▇▇▇▇▇ Partners within
days of the due date, Tenant shall be entitled to pay it, and upon written
notice to Landlord Tenant shall be entitled to deduct the amount pied from the
Rent and Additional Rent that Tenant is obligated to pay Landlord under this
Lease.
9. Cap on Operating Costs
Notwithstanding anything in this Lease to the contrary, for any year during the
initial Term of this Lease, Tenant shall not be obligated to pay to Landlord
Additional Rent for Operating Costs (excluding real estate taxes and utility
costs) in an amount that is greater than Tenant's pro rata share of the amount
by which the following amounts exceed the share of the amount by which the
following amounts exceed the actual base amount (defined in Section 10 (a)) of
the preprinted Lease form): (a) for the second calendar year of the Lease Term
106% of such base amount; (b) for the third calendar year of the Lease Term,
112% of such base amount; (c) for the fourth calendar year of the Lease Term,
118% of such base amount; and (d) for the fifth calendar year of the Lease Term,
124% of such base amount.
10. Tenant's Deck
Without any additional charge to Tenant hereunder, Tenant shall have private and
exclusive use of the deck that is located adjacent to the Premises on the 10th
floor of the Building. Landlord and Tenant acknowledge that any improvements
whatsoever to be made to made to such deck must have Landlord's prior written
approval, which shall not be unreasonably withheld or delayed, and shall be
considered given if not denied in writing within 19 business days tenant's
request. The area comprising the deck shall not be included in the calculation
of the rentable square-foot area of the Premises for any purpose.
11. Real Estate Taxes; Operating Costs Arbitration
Notwithstanding anything in this Lease to the contrary, "taxes" shall not
include any net income, excise, business and occupation, franchise, corporate,
estate or inheritance tax of payable b the Tenant under this Lease that is in
the nature of a net income tax or business and occupation tax. In addition
notwithstanding anything in this lease to the contrary , the following costs,
charges and expenses of landlord shall not be included among the " operating
costs" for which Tenant is responsible under this Lease:
(a) leasing commissions and other costs of seeking to rent space;
(b) managing agents' fees or commissions in excess of the rates then
customarily charged for property management for buildings of like class and
character to the Building;
71
(c) executives' salaries above the grade of property manager;
(d) amounts received by landlord through proceeds of insurance to the
extent such proceeds are compensation for expenses that were previously included
in the Operating costs hereunder;
(e) cost of repairs or replacements incurred by reason of fire or other
casualty to the extent Landlord is compensated therefor though proceeds of
insurance , or caused by the exercise of the right of eminent domain.
(f) consulting fees (unless the consulting services involved benefit all
tenants of the Building), marketing fees, advertising and promotional
expenditures;
(g) legal fees for disputes with tenants and legal and auditing fees,
other than legal and auditing fees reasonably incurred in connection with the
maintenance and operation of the Premises or in connection with the preparation
of statements required pursuant to additional rent or lease escalation
provisions;
(h) costs incurred in performing work or furnishing services for
individual tenants (including Tenant) at such tenant's expense to the extent
that such work or service is in excess of any work or service Landlord at its
expense is obligated to furnish to Tenant; costs of performing work or
furnishing services for tenants other than Tenant at Landlord's expense to the
extent that such work or services are in excess of any work or service landlord
is obligated to furnish to Tenant at landlord's expense;
(I) principal and interest payments on loans secured by mortgages or deed
of trust on, or assignments of rent from, all or any portion of the Building;
(j) depreciation;
(k) penalties due to any violation of law by landlord or other tenants;
(l) costs of preparing tenant space for tenant occupancy;
(m) costs of any utilities, services or capital improvements relating to
all or any portion of the Premises that were paid directly by Tenant or any
other tenant;
(n) costs allocable to properties other than the building in which the
Premises are located in which Landlord has an interest;
(o) structural repairs or replacements; and
(p) rent payable in connection with any ground or underlying lease.
The statements furnished to Tenant by landlord, which Tenant shall keep
confidential and which shall be itemized and contain such supporting
documentation as Tenant may reasonable request, shall constitute a final
determination as between landlord and Tenant of Operating costs for the period
represented thereby, unless Tenant,, within 10 working days after they are
furnished, shall give a notice to Landlord that it disputes their accuracy or
their appropriateness, which notice shall specify the particular respects in
which the statement is inaccurate or inappropriate. If landlord and Tenant are
unable to resolve Tenant's dispute with 10 working days, any such dispute shall
be resolved by arbitration s follows an arbitrator shall be mutually selected
who is an MA(designated appraiser in the City of Seattle with at least 10 years'
experience in appraising commercial office buildings in the Seattle central
business district. The arbitration shall be conducted as a "baseball"
arbitration whereby Landlord and Tenant shall each submit to
72
the arbitrator its determination of operating costs, and the arbitrator shall be
obligated to select from the two determinations submitted by the parties the one
most closely related to operating costs which in accordance with generally
accepted accounting and management practices would be considered the expenses of
maintaining, operating, or repairing the Building (and the arbitrator shall not
be allowed to compromise or otherwise make a different determination). The
arbitration shall be completed within 10 business days following selection of an
arbitrator. If the parties are unable to agree upon a mutually acceptable
arbitrator, then either party may request that the president of the Seattle
Chapter of the Appraisal Institute (or its successor) designate a qualified
arbitrator to so serve. The costs of any arbitrator shall be evenly split
between Landlord and Tenant. The arbitrator's decision shall be delivered in
writing to Landlord and Tenant and shall be binding upon resolution of such
dispute, Tenant shall pay additional rent to landlord in the amounts as landlord
outlined in the statement that is the subject of such dispute. Within 30 days
after the resolution of such dispute, landlord shall pay to tenant any overage
in additional rent found by the arbitrator.
12. Assignment and Subletting
Notwithstanding anything in this lease to the contrary, Landlord hereby consents
to an assignment of this Lease, or a sublease of all or part of the Premises to
the parent of Tenant or to a wholly-owned subsidiary of Tenant or of such
parent, or to any corporation into or with which Tenant may be merged or
consolidated, or to any joint venture or partnership Tenant may enter into in
connection with the business to be operated on the Premises; provided that, in
the case of a merger or consolidation, the net worth of the resulting
corporation is at least equal to the greater of (a) the net worth of Tenant on
the ate hereof or (b) the net worth of Tenant immediately prior to such merger
or consolidation; provided, further, any such assignment of Lease shall contain
an assumption of all of the terms, covenants and conditions of this Lease to be
performed, and any subtenant shall agree to perform all applicable provisions of
this lease to be performed by Tenant. Tenant agrees that no such assignment or
subletting shall be effective unless and until Tenant gives landlord written
notice thereof, together with a true copy of the assignment or of the sublease.
13. Hazardous Wastes
Landlord represents and warrants to Tenant that neither the Premises nor any
portion of the Building nor the real property upon which the building is located
contains hazardous wastes or hazardous materials in violation of the legal
limitations imposed by laws applicable to the Building as of the date of this
lease. Landlord agrees to indemnify an hold Tenant harmless from and against
any and all loss damage, claims,, penalties, liability, suits, costs and
expenses (including, without limitation, reasonable attorneys' fees) and also
including, without limitation, costs of remedial action or cleanup, suffered or
incurred by Tenant arising out of or related to any release or presence of
hazardous wastes or materials on, under or in the Premises, the Building or the
real property upon which the Building is located, unless such release or
presence is due to the acts or omissions of Tenant, its agents and employees.
The term "hazardous wastes or materials" means any substance, waste or material
defined as hazardous, toxic or dangerous by any federal , state or local
statute, rule, ordinance or regulation now in effect and shall specifically
include asbestos containing materials, PCB's and petroleum or hydrocarbon
products.
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