OFFICE LEASE AGREEMENT
Exhibit 10.2
OFFICE
LEASE AGREEMENT
Between
CARILLON
PROPERTIES (LANDLORD)
and AIRLINE INTELLIGENCE SYSTEMS INC.
(TENANT)
Table of
Contents
SECTION | PAGE | ||
1. | Lease Data and Exhibits | 1 | |
(a) | Development, Building, Premises | 1 | |
(b) | Tenant's Pro Rata Share of the Building | 1 | |
(c) | Tenant's Pro Rata Share of Development Common Areas | 1 | |
(d) | Term, Commencement and Expiration Dates | 1 | |
(e) | Basic Rent | 1 | |
(f) | Letter of Credit | 2 | |
(g) | Exhibits | 2 | |
2. | Premises | 3 | |
3. | Rent | 3 | |
4. | Construction of Tenant Improvements | 3 | |
5. | Uses | 3 | |
(a) | General Use | 3 | |
6. | Hazardous Materials | 3 | |
(a) | Landlord's Right to Cure | 4 | |
(b) | Landlord's Release | 4 | |
(c) | Third Parties | 4 | |
(d) | Complete Agreement | 4 | |
7. | Additional Rent | 4 | |
(a) | Tenant Payment | 4 | |
(b) | Definitions | 4 | |
(c) | Manner of Payment | 7 | |
(d) | Proration | 7 | |
(e) | Landlord's Records | 7 | |
8. | Personal Property Taxes | 7 | |
9. | Taxes on Rent | 7 | |
10. | Maintenance and Other Services by Landlord | 8 | |
11. | Assignment and Subletting | 8 | |
(a) | Prior Written Consent | 8 | |
(b) | Approval Process | 8 | |
(c) | Limitation of Landlord's Withholding Consent | 9 | |
(d) | Requirements | 9 | |
(e) | Processing Fee | 9 | |
(f) | Subleasing Profits | 9 | |
(g) | Recapture | 9 | |
12. | Care of Premises | 10 | |
13. | Surrender of Possession | 10 | |
14. | Alterations | 10 | |
15. | Entry and Inspection | 11 | |
16. | Damage or Destruction | 11 | |
(a) | Damage and Repair | 11 | |
(b) | Business Interruption | 11 | |
(c) | Tenant Improvements | 11 | |
17. | Indemnification | 12 | |
18. | Insurance | 12 | |
(a) | Liability Insurance | 12 | |
(b) | Property Insurance | 12 | |
(c) | Insurance Policy Requirements | 12 | |
(d) | Waiver of Subrogation | 12 | |
(e) | Landlord's Insurance | 12 |
19. | Advertising and Signs | 13 | |
20. | Insolvency and Liens | 13 | |
(a) | Insolvency | 13 | |
(b) | Liens | 13 | |
21. | Condemnation | 13 | |
(a) | Entire Taking | 13 | |
(b) | Partial Taking | 14 | |
(c) | Awards and Damages | 14 | |
22. | Default | 14 | |
(a) | Cumulative Remedies | 14 | |
(b) | Tenant's Right to Cure | 14 | |
(c) | Vacation and Abandonment | 14 | |
(d) | Landlord's Re-entry | 14 | |
(e) | Reletting the Premises | 14 | |
(f) | Right to Perform | 15 | |
(g) | Late Payments | 15 | |
23. | Subordination to Mortgage | 15 | |
24. | Mortgagee Protection | 15 | |
25. | Holdover | 15 | |
26. | Agent | 15 | |
27. | Notices | 15 | |
28. | Costs and Attorneys' Fees | 16 | |
29. | Estoppel Certificates | 16 | |
30. | Limitation of Liability | 16 | |
31. | Transfer of Landlord's Interest | 16 | |
32. | Nonwaiver | 16 | |
33. | Quiet Possession | 16 | |
34. | Letter of Credit | 16 | |
35. | Landlord Default | 17 | |
36. | General | 17 |
(a) | Headings | 17 | |
(b) | Heirs and Assigns | 17 | |
(c) | No Brokers | 17 | |
(d) | Identification of Tenant | 17 | |
(e) | Entire Agreement | 18 | |
(f) | Severability | 18 | |
(g) | Force Majeure | 18 | |
(h) | Changes to Building | 18 | |
(i) | Building Directory | 18 | |
(j) | Governing Law | 18 | |
(k) | Corporate Authority | 18 | |
(1) | Notice Addresses | 18 | |
(m) | Recordation | 18 | |
Notary | 20 | ||
Exhibit A-l | Legal and Development Description | 21 | |
Exhibit A-2 | Site Layout | 22 | |
Exhibit B | Floor Plan | 23 | |
Exhibit C | INTENTIONALLY OMITTED | 24 | |
Exhibit D | Additional Provisions | 25 | |
Exhibit E | Parking Agreement | 27 | |
Exhibit F | Subordination, Non-Disturbance & Attornment Agrmt | 29 | |
Exhibit G | Form of Tenant Estoppel Certificate | 33 | |
Exhibit H | Fomr of Letter of Credit Acceptable to Landlord | 34 |
Office
Lease Agreement
THIS
LEASE AGREEMENT ("Lease") is dated the_______________________ day
of ____________, 2007, by and between
CARILLON
PROPERTIES, a Washington general partnership ("Landlord"), and AIRLINE
INTELLIGENCE SYSTEMS INC., a Delaware corporation ('Tenant").
Landlord
and Tenant agree as follows:
1. Lease Data and
Exhibits. The following terms shall have the meanings provided in this
Section I unless otherwise specifically modified herein:
(a) Development, Building and
Premises. "Development" as used in this Lease means all of the buildings,
grounds, streets, parking areas and other improvements comprising the multi-use
development known as Carillon Point and located in Kirkland, Washington, legally
described on Exhibit
A-1 and shown on Exhibit A-2.
'"Building" as used in this Lease means Building 3000 in the Development; the
Building is comprised of approximately 120,929 rentable square feet. "Premises"
as used in this Lease means that space consisting of approximately 15,166
rentable square feet on the fifth (5th)
floor of the Building, as outlined on the floor plan attached hereto as Exhibit B. The
address of the Premises is 0000 Xxxxxxxx Xxxxx, Xxxxxxxx, XX 00000.
(b) Tenant's Pro Rata
Share. Tenant's Pro Rata Share of the Building is 12.54% calculated by
dividing the rentable square feet of the Premises by the rentable square feet of
the Building, as each may be reasonably determined from time to time by
Landlord, in accordance with BOMA International Standard Method for Xxxxxxxxx
Xxxxx Xxxx xx Xxxxxx Xxxxxxxxx, XXXX X00.0-0000 ("XXXX International
Standards").
(c) Building's Pro Rata Share of
the Development Common Areas. The Building's Pro Rata Share of the
Development is 20.49% calculated by dividing the rentable square feet of the
Building by the rentable square feet of all buildings in the Development (and
Landlord shall include a reasonable portion of rentable square feet for the
hotel and marina), as each may be reasonably determined from time to time by
Landlord, in accordance with BOMA International Standards.
(d) Term. Commencement and
Expiration Dates. The term of this Lease (the 'Term") shall commence on
the later of (i) July 15, 2007, and (ii) the date that Landlord delivers the
Premises (the "Commencement Date"), and shall expire on the date that is
sixty-three (63) months after the Commencement Date (the "Expiration Date"),
unless earlier terminated as provided herein. Landlord shall use commercially
reasonable efforts to deliver possession of the Premises to Tenant on or before
July 15, 2007. If the Commencement Date has not occurred by July 15, 2007 due to
the failure of an existing tenant to vacate the Premises, Tenant agrees that
Landlord shall not be liable to Tenant for any loss or damage resulting there
from and this Lease shall not be void or voidable, and Landlord shall diligently
proceed with eviction proceedings against such holdover tenant(s), at Landlord
cost and expense. Notwithstanding the foregoing, (i) Tenant shall have no
obligation to pay Basic Rent or any other rent or charges payable under this
Lease until the Premises has been delivered to Tenant, and (ii) if the
Commencement Date has not occurred by October 15, 2007, Tenant shall be entitled
to terminate this Lease by delivering written notice to Landlord of such
termination, in which event neither Landlord nor Tenant shall have any further
obligations hereunder and Landlord will promptly return the Letter of Credit
(defined in Section
1(f)) and any prepaid rent or other charges paid by Tenant to Landlord.
When the Commencement Date has been ascertained, the parties hereto agree
promptly to execute a memorandum confirming the Commencement Date and scheduled
Expiration Date.
(e) Basic Rent. Tenant
shall pay Basic Rent as follows:
(i) On
or about the date of mutual execution of this Lease, Tenant shall pay the
sum of
Fifty Thousand One
Hundred Twenty-Three and 64/100 Dollars ($50.123.64), representing
monthly Basic
Rent of Sixteen
Thousand Seven Hundred Seven and 88/100 Dollars ($16.707.88) per month,
for the 3-month
period from July 15, 2007 through October 14, 2007, based upon $13.22 per
rentable square foot of the Premises.
(ii) From
October 15, 2007 to October 14, 2008, Tenant shall pay monthly Basic
Rent of Forty Eight
Thousand Eight Hundred Nine and 24/100 Dollars ($48.809.24) per month
based upon
$38.62 per rentable square foot of the Premises.
1
(iii) From
October 15, 2008 to October 14. 2009, Tenant shall pay monthly Basic
Rent of Fifty Thousand
Seventy Three and 08/100 Dollars ($50.073.08) per month based upon $39.62
per rentable
square foot of the Premises.
(iv) From
October 15, 2009 to October 14, 2010, Tenant shall pay monthly Basic Rent of
Fifty One Thousand
Three Hundred Thirty Six and 91/100 Dollars ($51.336.91) per month based
upon $40.62 per rentable square foot of the Premises.
(v) From
October 15, 2010 to October 14, 2011. Tenant shall pay monthly Basic
Rent of Fifty Two
Thousand Six Hundred and 74/100 Dollars ($52.600.74) per month based upon
$41.62 per
rentable square foot of the Premises.
(vi) From
October 15. 2011 to October 14, 2012, Tenant shall pay monthly Basic
Rent of Fifty Three
Thousand Eight Hundred Sixty Four and 58/100 Dollars ($53.864.58) per
month based
upon $42.62 per rentable square foot of the Premises.
Notwithstanding
the foregoing, if the Commencement Date occurs later than July 15, 2007, the
dates listed above will be adjusted such that Tenant's obligation to pay Basic
Rent will commence on the Commencement Date (with the first adjustment occurring
on the date which is three (3) months after the Commencement Date and thereafter
each adjustment occurring every twelve (12) months).
During
the initial Lease Term, Landlord and Tenant hereby agree to be bound by the
rentable area and usable area measurement of the Premises set forth on Exhibit B attached
hereto, notwithstanding the fact that measuring the Premises using different
methods, means, devices and/or personnel might yield different results. If
Tenant elects to extend the Lease Term, the measurement of the Premises may be
revised based on the then current measurement.
Basic
Rent includes the Base Amount, which shall be the Actual Expenses (as defined in
Section 7
below) for the 2007 calendar year
(the "Base Year")- In addition to Basic Rent, to the extent that the Actual
Expenses for each succeeding Operating Year exceed the Base Amount, Tenant shall
pay its Pro Rata Share of such excess as Additional Rent in the manner described
in Section 7
below. "Rent" as used in this Lease shall mean Basic Rent and Additional
Rent.
Tenant
has deposited with Landlord, and Landlord hereby acknowledges receipt of, the
sum of Forty Eight
Thousand Eight Hundred Nine and 25/100 Dollars ($48.809.25) to be applied
to the Basic Rent for the fourth month under this Lease.
(f) Letter of Credit. No
later than the scheduled Commencement Date (unless delayed by Landlord's acts or
omissions), Tenant shall deposit with Landlord an unconditional and irrevocable
standby letter of credit in the amount of Five Hundred Ten Thousand
and 00/100 Dollars ($510.000.00) ("Letter of Credit"), as security for
the full and faithful performance of every provision of the Lease to be
performed by Tenant pursuant to the terms and conditions set forth in Section 34 hereof.
The Letter of Credit shall be made in favor of Landlord and shall: (i) be in
form and substance acceptable to Landlord in Landlord's reasonable discretion;
(ii) be issued by a national banking association maintaining offices in the
United States of America acceptable to Landlord in Landlord's reasonable
discretion (the "Bank"); (iii) be
available for draw by Landlord at an office of the Bank located in the Seattle
area in the State of Washington; (iv) be governed by the Internationa] Standby
Practices set by the International Chamber of Commerce; (v) permit partial
drawings; and (vi) automatically renew on the same terms and conditions so that
the Letter of Credit continuously remains in full force and effect for the Term.
Landlord confirms that [Bank of America] is acceptable as the Bank and that the
form of Letter of Credit attached hereto as Exhibit H is
acceptable in form and substance to Landlord, provided, however, Tenant may also
use another Bank or form of Letter of Credit that meets Landlord's criteria set
forth above.
In the
event Tenant's operations generate positive cash flow as of each of the dates
outlined below (each, an "Adjustment Date"), as evidenced by audited financial
statements for the twelve (12) month period prior to the applicable Adjustment
Date, then Landlord and Tenant agree to amend the Letter of Credit to decrease
the amount of the Letter of Credit to the amount as outlined below:
Adjustment
Date
|
Principal
Amount
|
|||
First
day of Month 28
|
$ | 306,000.00 | ||
First
day of Month 52
|
$ | 102,000.00 |
2
(g) Exhibits. Landlord
and Tenant agree that this Lease is further subject to the provisions of the
attached Exhibits which are listed below. The provisions of the Exhibits are
understood to be an integral portion of this Lease.
Exhibit
A-l
- Legal
and Development Description
Exhibit
A-2
- Site
Layout
Exhibit
B
- Premises
Floor Plan
Exhibit
C
- Intentionally
Omitted
Exhibit
D - Additional
Provisions
Exhibit
E
- Parking
Agreement
Exhibit F Exhibit G Exhibit
H
Subordination,
Non Disturbance and Attornment Agreement Landlord's Mortgagee's form of Tenant
Estoppel Certificate Landlord accepted form of Letter of Credit
2. Premises. Landlord
hereby leases to Tenant and Tenant hereby leases from Landlord upon the terms
and conditions herein set forth herein, the Premises together with the
non-exclusive rights of ingress and egress over the Building Common Areas and
the Development Common Areas, all as shown on Exhibit A-2 below.
3
3. Rent. Tenant shall
pay Landlord without notice the Rent, and any other payments due hereunder, from
and after the Commencement Date, without deduction or offset (except as
specifically set forth herein) in lawful money of the United States of America
in advance on or before the first day of each month (or at other dates specified
in this Lease) during the Term at Landlord's Notice Address set forth on the
signature page, or to such other party or at such other place as Landlord may
hereafter from time to time designate in writing. Rent for any partial month at
the beginning or end of the Term shall be prorated.
4. Construction of
Improvements. Subject to Landlord's obligation to perform the
improvements set forth in this Section 4, and except as specifically provided in
this Lease, Landlord shall provide the Premises to Tenant "As Is Where Is."
Prior to the Commencement Date, Landlord shall (i) provide new paint, (ii) clean
carpets throughout the Premises, (iii) repair all damaged ceiling tiles and
window blinds as necessary, and (iv) ensure all Building systems are functioning
properly. Any alterations to the Premises shall be made pursuant to Section 14 of the
Lease and with the prior consent of Landlord.
5. Uses.
(a) General Use. The
Premises shall be used only for general office and ancillary purposes which are
consistent with applicable zoning and the operation of a first class building
(the "Permitted Use") and for no other business or other purpose without the
prior written consent of Landlord, which consent may be withheld in Landlord's
sole discretion. Neither Tenant, nor its agents, employees or contractors, shall
use the Premises, the Building Common Areas or the Development Common Areas to
conduct unlawful activities or in any other manner that is unlawful or that will
increase the Landlord's then existing rate of insurance, unless Tenant pays all
of such increases. Tenant shall not commit, or knowingly allow to be committed,
any waste upon the Premises, or any public or private nuisance or other act or
thing that disturbs the quiet enjoyment of any other tenant in the Building.
Tenant shall not, without written consent of Landlord, use any apparatus,
machinery or device in or about the Premises that will cause any substantia]
noise, vibration or fumes or disturb the quiet enjoyment of any other tenant in
the Building. Tenant shall observe such rules and regulations concerning
Tenant's use, operations, or occupancy of the Premises, the Building Common
Areas, or the Development Common Areas, as may be adopted by Landlord from time
to time and made available to Tenant by written notice, so long as the same are
not inconsistent with this Lease and do not materially increase Tenant's
obligations or costs hereunder. Tenant, at its own expense, shall comply with
all laws, rules, orders, regulations and requirements of any federal, state,
county or local governmental authority (collectively, "Requirements") which
impose any duty on Landlord or Tenant with respect to Tenant's use, operations,
or occupancy of the Premises, including the Requirements of the Americans with
Disabilities Act ("ADA"). Tenant shall indemnify, defend and hold Landlord
harmless from any liabilities, damages, obligations, losses, claims, actions,
costs or expenses, including attorneys' and other professional fees, arising
from any violation of the Requirements that is Tenant's responsibility under
this Lease.
6. Hazardous Materials.
Tenant, its officers, partners, members, employees, contractors, or agents
shall not
cause or permit the escape, disposal or release of any hazardous substances or
materials on or in the Development,
the Building or the Premises. Tenant, its officers, partners, members,
employees, contractors, or agents
shall not store or use such hazardous substances or materials in any manner not
sanctioned by law or by the
highest standards prevailing in the industry for the storage and use of such
hazardous substances or materials,
nor bring into the Development any such hazardous substances or materials,
except in amounts which are not
subject to regulation. Without limitation, hazardous substances or materials
shall include those described
in the Comprehensive Environmental Response. Compensation and Liability Act of
1980, as amended,
42 U.S.C. Section 9601 et seq., any applicable state or local laws and the
regulations adopted under these
acts. Notwithstanding the foregoing, Tenant shall be entitled to use hazardous
substances at the Premises which are
incidental to general office use, such as photocopier toner and cleaning
supplies, so long as such use is in
compliance with laws and prudent business practices. If any lender or
governmental agency shall ever require
testing to ascertain whether or not there has been any release of hazardous
substances or materials, then the
reasonable costs thereof shall be reimbursed by Tenant to Landlord upon demand
if such requirement applies to the
Premises. In addition. Tenant shall execute affidavits or certifications from
time to time at Landlord's request
concerning Tenant's actual knowledge and belief regarding the presence of
hazardous substances or materials
on the Premises, (other than customary office supplies as referenced above). In
all events, Tenant shall
indemnify Landlord in the manner elsewhere provided in this Lease from any
escape, disposal or release by Tenant,
its officers, partners, members, employees, contractors, or agents of hazardous
substances or materials on the
Premises, the Building or the Development. The covenants and indemnities
contained in this Section 6 shall
survive the expiration or earlier termination of the Term.
4
(a) Landlord's Right to
Cure. After notice to Tenant and a reasonable opportunity for Tenant to
effect such compliance, Landlord may, but is not obligated to, enter upon the
Premises and take such actions and incur such costs and expenses to effect such
compliance as it deems advisable to protect its interest in the Premises and the
Building. However, Landlord shall not be obligated to give Tenant notice and an
opportunity to effect compliance if: (i) such delay might result in material
adverse harm to Landlord or the Premises, Building or Development, or (ii) an
emergency exists. If it has been determined that a release of hazardous
substances or materials on the Premises, the Building or Development was caused
or otherwise resulted from Tenant's use, operations or occupancy of the Premises
(regardless of whether Tenant knew about such release), Tenant shall reimburse
Landlord for the full amount of all costs and expenses incurred by Landlord in
connection with such compliance activities, and such obligation shall continue
even after the expiration or earlier termination of this Lease. Tenant shall
notify Landlord immediately of any emission, disposal or release of any
hazardous substances or materials on the Premises.
(b) Landlord's Release.
Tenant shall not be liable for. and Landlord hereby releases Tenant, its
officers, partners, members and employees from all losses, costs, claims,
liabilities and damages (including attorneys' and consultants' fees) of every
type and nature, arising out of or in connection with any hazardous substances
or materials present on or before the Commencement Date on or about the
Premises, the Building or the Development, or the violation of any Requirements
relating to such hazardous substances or materials, except to the extent that
any of the forgoing results from the release or emission of hazardous substances
or materials by Tenant its officers, partners, members, employees, contractors,
or agents. Landlord confirms, to Landlord's actual knowledge as of the date
hereof without any duty of investigation or injury, that Landlord has received
no written notice of violations of hazardous substances laws that exist at the
Premises, the Building or the Development.
c) Third Parties. If any
hazardous substances or materials are used, disposed of or otherwise occurs
within the Premises, the Building, or the Development due to an act or omission
of a third party (i.e., a party other than described in the Tenant and Landlord
indemnifications set forth above), then all costs of cleanup, repair,
remediation and litigation shall be treated as an operating expense for which
Tenant shall pay its Pro Rata Share, but there shall be a credit against such
operating expenses to the extent Landlord receives compensation or insurance
from the third party or insurer for such loss or damage.
(d) Complete Agreement.
This Section 6
constitutes the entire agreement of Landlord and Tenant regarding hazardous
substances and materials. No other provisions of the Lease shall apply
thereto.
7. Additional
Rent.
(a) Tenant Payment. From
and after January 1, 2008, to the extent that the Actual Expenses
for a calendar year exceeds the Base Amount, Tenant shall pay its Pro Rata Share
of such excess as Additional
Rent in the manner described below.
(b) Definitions.
(1) "Actual
Expenses" shall mean the actual expenses paid or incurred by Landlord
during any Operating Year for the Building Operating Expenses, the Building's
Pro Rata Share of the Development
Common Area Expenses, and Real Property Taxes.
(2) "Base
Amount" shall mean the Actual Expenses for the Base Year.
(3)
"Building Operating Expenses" shall mean all expenses paid or incurred by
Landlord
for maintaining, operating and repairing the Building and the personal property
used in conjunction therewith,
including, without limitation: the costs of refuse collection, water, sewer,
electricity, gas and other utilities;
supplies; janitorial and cleaning services; interior and exterior window
washing; plant maintenance; services
of independent contractors for maintenance and operations; compensation
(including employment taxes and
fringe benefits) of all persons who perform duties in connection with the
operation, maintenance and repair of the
Building; insurance deductibles and premiums on insurance as Landlord in its
sole discretion decides to carry;
licenses, permits and inspection fees; management fees; legal and accounting
expenses; the amortized amount of
capital improvements constructed after completion of the Building, which capital
expenditures will be amortized
by dividing the capital improvement costs by the useful life of the capital
improvements as reasonably determined
by Landlord in accordance with generally accepted accounting and management
practices; Maintenance
Reserves, costs arising from any Requirements requiring changes to the Building,
including, without
limitation, the ADA; and any other expense or charge whether or not hereinabove
described, which in accordance
with generally accepted accounting and management practices would be considered
an expense of maintaining,
operating or repairing the Building, excluding:
(A) costs
to replace the foundation and structural portions of the exterior walls and roof
of the Building, or to comply with any Requirement applicable to the Building or
the Development Common Areas prior to the Commencement Date;
(B) payments
of principal and interest charges incurred on debt, or depreciation
expenses;
(C) the wages
and benefits of any employee who does not devote substantially all of his or her
time to the Development unless such wages and benefits are appropriately
prorated;
5
(D)
costs of
any items for which Landlord is entitled to receive an unqualified reimbursement
from insurance proceeds, from a tenant, or from any third party;
(E) legal
fees and costs, settlements, judgments or awards arising out of negotiations
or disputes with any other tenant or potential tenant of the
Building;
(F) marketing
costs, brokerage fees, leasing commissions, legal fees, advertising
and promotional expenses specifically designed for marketing and letting space
within the Building;
(G) costs
of electrical, heating, cooling and combined utility services to th extent
that such services are separately metered to a premises and paid directly by
such tenant;
(H) any
item of expense included in the Development Common Area Expenses
or Real Property Taxes;
(I) expenses
resulting from the negligence or willful misconduct of Landlord
or its employees, contractors, or agents;
(J) any
amount paid to any person, firm or corporation related to or otherwise
affiliated with Landlord or any genera! partner, officer or director of
Landlord, or any of its general partners to the extent that they exceed arms
length competitive prices in the Kirkland, Washington area for the services or
goods provided;
(K)
Landlord's general corporate overhead and general and administrative expenses,
including amounts paid to any partners, shareholders, officers and/or directors
of Landlord for salary or other compensation to the extent any such amounts do
not apply to the management and operation of the Building or Development, and
including costs relating to maintaining Landlord's existence as a legal
entity;
(L)
fines, penalties, or interest incurred due to Landlord's delinquent payment
of obligations; and
(M) the
expense of extraordinary services provided to other tenants in the Building or
Development or provided selectively to one or more tenant or occupants (other
than Tenant), including without limitation, any special or excessive use of
utilities, such as HVAC or electricity, by such other tenants.
(4) "Development
Common Areas" shall mean the areas in the Development other than the buildings,
the parking garages, the hotel and the marina.
(5) "Development
Common Area Expenses'" shall mean all expenses paid or incurred by Landlord for
maintaining, operating and repairing the Development Common Areas and the
personal property used in conjunction therewith, including, without limitation:
the cost of maintaining the asphalt drives and parking areas; refuse collection,
water, sewer, electricity, gas and other utilities; supplies; janitorial and
cleaning services; landscape maintenance; services of independent contractors;
compensation (including employment taxes and fringe benefits) of all persons who
perform duties in connection with the operation, maintenance and repair of the
Development Common Areas; insurance deductibles and premiums on insurance which
Landlord in its sole discretion decides to carry; licenses, permits and
inspection fees; management fees; legal and accounting expenses; the amortized
amount of capital improvements constructed after completion of the Development
determined by dividing the capital improvement costs by the useful life of the
capital improvements as reasonably determined by Landlord in accordance with
generally accepted accounting and management practices; costs arising from any
Requirements requiring changes in the Development or rearrangements of the
Development Common Areas, including, without limitation, costs of compliance
with the ADA; and any other expense or charge whether or not hereinafter
described, which is in accordance with generally accepted accounting and
management practices would be considered an expense of maintaining, operating or
repairing the Development Common Areas, excluding:
(A) costs
to replace the foundation and structural portions of the exterior walls and
roof of a building in the Development, or to comply with any Requirement
applicable to the Development
prior to the Commencement Date;
(B)
payments of principal and interest charges incurred on debt, or depreciation
expenses;
(C) the wages
and benefits of any employee who does not devote substantially all of his or her
time to the Development unless such wages and benefits are appropriately
prorated;
(D) costs of
any items for which Landlord is entitled to receive an unqualified reimbursement
from insurance proceeds, from a tenant, or from any third party;
(E) legal
fees and costs, settlements, judgments or awards arising out of negotiations
or disputes with any other tenant or potential tenant of the
Development;
(F) marketing
costs, brokerage fees, leasing commissions, legal fees, advertising
and promotional expenses specifically designed for marketing and letting space
within the Development;
(G) costs
of electrical, heating, cooling and combined utility services to the
extent
that such services are separately metered and paid directly;
(H) Any
item of expense included in Building Operating Expenses or Real Property
Taxes;
(I) expenses
resulting from the negligence or willful misconduct of Landlord
or its employees, contractors, or agents;
6
(J) any
amount paid to any person, firm or corporation related to or otherwise
affiliated with Landlord or any general partner, officer or director of
Landlord, or any of its general partners to the extent that they exceed arms
length competitive prices in the Kirkland, Washington area for the services or
goods provided;
(K)
Landlord's general corporate overhead and general and administrative expenses,
including amounts paid to any partners, shareholders, officers and/or directors
of Landlord for salary or other compensation to the extent any such amounts do
not apply to the management and operation of the Building or Development, and
including costs relating to maintaining Landlord's existence as a legal
entity;
(L)
fines, penalties, or interest incurred due to Landlord's delinquent payment
of obligations; and
(M) the
expense of extraordinary services provided to other tenants in the Building or
Development or provided selectively to one or more tenant or occupants (other
than Tenant), including without limitation, any special or excessive use of
utilities, such as HVAC or electricity, by such other tenants.
(6) "Estimated
Expenses" shall mean Landlord's estimate of Actual Expenses for a Operating Year
minus the Base Amount multiplied by Tenant's Pro Rata Share, to be given by
Landlord to Tenant pursuant to Section 7(c)
below.
(7) "Maintenance
Reserves" shall mean an amount established for the purpose of paying for
repairs, maintenance and replacements to the Building systems in the Building or
the Premises incurred on a periodic, but less frequent than annual,
basis.
(8) "Occupancy
Adjustment" shall mean that in the event the average occupancy level of the
Building for any Operating Year, including the Base Year, was or is not one
hundred percent (100%) of full occupancy, then the Actual Expenses for such year
shall be proportionately adjusted by Landlord to reflect those costs which would
have occurred had the Building been one hundred percent (100%) occupied during
such year.
(9) "Operating
Year" shall mean January 1 through December 31 of each calendar
year of the Term.
(10)
"Real Property Taxes" shall mean: (i) the total amount of all real and
personal
property taxes, assessments, including omit tax, and other governmental
impositions and charges of every
kind and nature, now or hereafter imposed, including surcharges with respect to
the Development (excluding
the hotel and the marina) or the use, occupancy or possession thereof; and (ii)
taxes on Tenant's Personal
Property (as defined in Section 13), which
have not been paid by Tenant directly to the taxing authority,
as well as any taxes levied or assessed in addition to, in lieu of, or as a
substitute for, in whole or part, taxes now
levied or assessed or any other tax upon owning, leasing or rents receivable by
Landlord from the Development
(excluding the hotel and marina), but not including any federal or state or
local income tax or inheritance,
transfer, gift, succession or franchise taxes imposed on Landlord, all
determined with respect to the period
for which such taxes are (or would have been if timely levied) due and payable.
The Real Property Taxes for the
Development (excluding the hotel and marina) shall be allocated amongst the
buildings in the Development
(excluding the hotel and marina) on a per rentable square foot basis. All
assessments shall be paid by
Landlord and charged to Tenant in installments over the longest permitted
term.
7
(c) Manner of Payment.
Tenant's payment of Additional Rent shall be made as follows:
(1) Within
ninety (90) days of the commencement of each Operating Year following the Base
Year, Landlord shall furnish Tenant a written statement of the Estimated
Expenses for such Operating Year and a calculation of the twelve (12) monthly
installments of Additional Rent to be paid by Tenant and the deficit, if any,
for the first three (3) months of such Operating Year. If at any time or times
during a Operating Year it reasonably appears to Landlord that the amount of
Actual Expenses will vary from the Estimated Expenses by more than three percent
(3%) on an annual basis, then Landlord by written notice to Tenant may revise
the Estimated Expenses for such Operating Year and the monthly installments of
Additional Rent made by Tenant for the balance of such Operating Year shall be
thereafter based on such revised Estimated Expenses.
(2) Within
ninety (90) days after the end of each Operating Year, or as soon thereafter as
practicable, Landlord shall provide a statement (the "Statement") to Tenant
showing: (a) the amount of Actual Expenses, with a listing of amounts of Actual
Expenses in the major categories of Building Operating Expenses, Development
Common Area Expenses and Real Property Taxes, (b) any amount paid by Tenant
toward such Additional Rent during such Operating Year on an estimated basis,
and (c) any revised estimate of Tenant's obligations for Additional Rent for the
current Operating Year.
(3) If the
Statement shows Tenant's estimated payments were less than Tenant's Actual
Expenses, less the Base Amount, then Tenant shall pay the difference. If the
Statement shows an increase from Tenant's Estimated Expenses, then Tenant shall
pay the difference between the new and former estimates, for the period from
January 1 of the current Operating Year through the month in which the Statement
is sent. Tenant shall make such payments within thirty (30) days after Landlord
sends the Statement.
(4) If the
Statement shows the Tenant's Estimated Expense payments exceeded Tenant's Actual
Expenses, less the Base Amount, then Tenant shall receive a credit for the
difference against payments of Rent next due. If the Term shall have expired and
no further Rent shall be due, Tenant shall receive a refund of such difference,
within thirty (30) days after Landlord sends the Statement.
(5) So long
as Tenant's obligations hereunder are not materially adversely affected thereby,
Landlord reserves the right to reasonably change, from time to time, the manner
or timing of the foregoing payments. In lieu of providing one (1) Statement
covering Building Operating Expenses, Real Property Taxes, and Development
Common Area Expenses, Landlord may provide separate statements, at the same or
different times. No delay by Landlord in providing the Statement (or separate
statements) shall be deemed a default by Landlord or a waiver of Landlord's
right to require payment of Tenant's obligations for actual or estimated
Building Operating Expenses, Real Property Taxes, or Development Common Area
Expenses.
(d) Pro Ration. If the
Term ends other than on December 31, Tenant's obligations to pay Estimated
Expenses and actual amounts towards Additional Rent for such final Operating
Year shall be prorated to reflect the portion of such year included in the Term.
Such pro ration shall be made by multiplying (i) the Base Amount (as stated on
an annual basis) and (ii) the total estimated or actual Additional Rent for such
Operating Year, by a fraction wherein the numerator is the number of days of the
Term during such Operating Year and the denominator is 365 days.
8
(e) Landlord's Records.
The determination of Additional Rent shall be made by Landlord. Landlord or its
agents shall keep records for three (3) years after delivery of a Statement, in
reasonable detail, showing all expenditures made or items enumerated in the
Statement (the "Expense
Information"). Such records shall be available for inspection by or on
behalf of Tenant, at Tenant's cost, at Landlord's office during regular business
hours and after reasonable notice, but in any event prior to the expiration of
the Term. If any such inspection shows Landlord overstated Tenant's share of
Additional Rent for the subject Lease Year by more than five percent (5%) of the
actual amount payable by Tenant, Landlord shall reimburse Tenant for the
reasonable costs and expenses of the inspection (not to exceed $
1,000).
8. Personal Property
Taxes. Tenant shall pay, prior to delinquency, all personal property
taxes payable with respect to all of Tenant's Personal Property as defined in
Section 13 below, located on the Premises or in the Building and promptly upon
request of Landlord shall provide written proof of such payment. "Personal
Property Taxes" shall include all property taxes assessed against Tenant's
Personal Property, whether assessed as real or personal property.
9. Taxes on Rent. The
Rent stated herein and any payment provided for in this Lease is exclusive of
any sales, business and occupation or other tax or charge upon, based upon or
measured by rents payable to Landlord hereunder, the number of employees of
Tenant, or any other tax which is not currently in effect. If during the Term
any such tax or other charge becomes payable by Landlord to any governmental
authority, the Rent hereunder shall be deemed increased by such amount upon
twenty (20) days' written notice by Landlord to Tenant. The foregoing does not
apply to federal, state, or local income, inheritance, gift, succession or
franchise taxes payable by Landlord.
10. Maintenance and Other
Services Provided by Landlord. Landlord will maintain and repair the
foundation,
exterior walls and structural portions of the roof of the Building, the other
buildings in the Development
in a manner customary for Class A office buildings in the Greater Seattle area.
In addition, Landlord
will provide, maintain, replace the Building systems, including without
limitation: electricity for lighting
and standard power usage office machines; water and sewer; security system; and
mechanical, cooling heating,
and ventilation, at such times as the Landlord normally furnishes this service
to other tenants of the Building,
but in no event less than normal business hours, and at such temperatures and in
such amounts as are reasonably
standard for Class A office buildings in the Greater Seattle area. All services
including elevator, Building
access through the security system, water, and parking, but not including the
cooling, heating, and ventilation
systems, shall be available at all times. Normal business hours shall be from
7:00 a.m. to 6:00 p.m. on
weekdays, and 8:00 a.m. to noon on Saturdays, excluding legal holidays. Landlord
shall also provide daily (i.e.,
five days per week) janitorial service, lamp replacement for building standard
lighting, toilet room supplies and
perimeter window washing (at least twice annually), all with reasonable
frequency customary to Class A office
buildings in the Greater Seattle area. Unless charged to individual tenants
(including the Tenant) as hereinafter
provided, the costs of such Landlord services shall be included as "Building
Operating Expenses" or "Development
Common Area Expenses", as applicable, and paid as Additional Rent pursuant to
Section 7.
Landlord
shall not be liable for any loss or damage caused by or resulting from any
variation, interruption or failure
of such services due to any cause whatsoever, and no temporary interruption or
failure of such services incident
to the making of repairs, alterations or improvements or due to accident or
strike conditions shall be deemed as
an eviction of Tenant or relieve Tenant from any of Tenant's obligations
hereunder. For those services
within Landlord's reasonable control, Landlord will take commercially reasonable
steps to correct any interruption
of services as soon as practicable; provided, however, in the event there is an
interruption of utilities or
services which materially affects Tenant's use of the Premises for more than ten
(10) business days caused by the gross
negligence or willful misconduct of Landlord, as Tenant's sole and exclusive
remedy unless Section
35 of the
Lease shall apply, in which case Tenant shall be entitled to the rights and
remedies set forth therein, Tenant's
Rent shall be abated until such time as the utilities or services are restored.
Landlord shall provide mechanical,
cooling, heating, and ventilation at times other than normal business hours upon
Tenant's written request
and reasonable notice to Landlord, and Tenant shall pay the reasonable cost
thereof (which is currently equal to
$30.00 per hour for each half of each floor in the Building. Landlord shall
provide a security system (and
issue cards, keys, or other appropriate access devices) which will allow Tenant
access to the Premises at all times.
9
If Tenant
has special mechanical, cooling, heating, ventilation, electrical or other
requirements, Landlord shall have the right to approve any modifications or
additions to the existing Building systems, in Landlord's sole discretion. The
cost of furnishing, installing, operating and maintaining such additional
equipment and appurtenances to satisfy these requirements, including separate
meters if requested by Landlord, shall be borne by Tenant, with Tenant either
paying directly to the utility if separately metered or paying to Landlord as
Additional Rent, the reasonable cost of providing such additional
services.
11. Assignment and
Subletting.
(a) Prior Written
Consent. Without Landlord's prior written consent. Tenant shall not cause
or permit, directly or indirectly, voluntarily or involuntarily, any of the
following events (or any amendment to the instrument affecting the same): (i)
sale, assignment, hypothecation, mortgage, encumbrance, conveyance or other
transfer of the Lease (or any interest therein); (ii) a sublease of the Premises
or any portion thereof; or (iii) the use and/or occupancy of the Premises or any
portion thereof by anyone other than Tenant (individually referred to as a
"Transfer"). Notwithstanding the foregoing, and subject to subsection (d) below.
Tenant's subleasing of the Premises to an affiliated entity, or the assignment
this Lease to an affiliated entity or a successor entity related to Tenant by a
purchase of substantially all of the Tenant's assets, a merger or consolidation,
non-bankruptcy reorganization, or government action (individually referred to as
an "'Allowed Transfer"), shall not constitute a "Transfer" for the purpose of
this Lease. As used herein, an "affiliated entity" means an entity which
controls, is controlled by or is under common control with Tenant.
(b) Approval Process. If
Tenant desires the consent of Landlord to a Transfer, Tenant shall submit to
Landlord the following items:
(1) A copy of
the proposed sublease, assignment, or other transfer agreement at least fifteen
(15) days (but no more than 180 days) prior to the proposed effective date of
such instrument. As a condition precedent to any Transfer being effective, the
instrument (with this Lease as an Exhibit thereto) shall provide that the
sublessee or assignee (the "Transferee") is bound by all of the provisions,
terms, covenants, and conditions of this Lease (other than, in the case of a
sublease, payment of Rent or provisions relating to spaces not covered by the
sublease), that Tenant (and all guarantors) shall continue to be and remain
liable hereunder jointly and severally with the Transferee, and that Landlord's
consent to the Transfer shall not be deemed a consent to any subsequent
Transfer;
(2) A copy of
all material changes to or modifications of the proposed sublease, assignment or
other transfer agreement promptly if and when made;
(3) An
original or a copy of the final sublease, assignment or other transfer
agreement, duly executed and acknowledged by the Tenant and the proposed
Transferee, at least five (5) business days prior to the proposed effective date
of such assignment, sublease, or other transfer agreement; and
(4) Any other
items or information Landlord may reasonably request, including, without
limitation, sufficient information to permit Landlord to determine acceptability
of the financial wherewithal and character of the proposed
Transferee.
(c) Limitation of Landlord's
Withholding of Consent. Landlord shall not unreasonably withhold
or delay its consent to or approval of any proposed Transfer if all of the
following conditions are fully satisfied:
(1) Tenant is
not in default of its obligations under this Lease at the time of Tenant's
request, unless curing such default is a condition to the effectiveness of the
proposed Transfer;
(2) The use
and occupancy of the Premises by the Transferee is consistent with applicable
zoning, the applicable Requirements, and is consistent with the nature of
Development as a Class A mixed-use office, hotel and retail
complex;
(3) The
proposed assignment or sublease does not conflict with or cause Landlord to be
in default under any provision of any other lease for any other part of the
Development;
(4) The
Transferee (and its guarantors, if any,) has or have the financial wherewithal
to fully perform the obligations with respect to the proposed assignment,
sublease or transfer agreement, taking into consideration all relevant factors;
and
10
(5) The form
and substance of all proposed assignments, subleases, and transfer documents are
consistent with the terms of this Lease, and provide that Landlord's consent to
the Transfer shall not be deemed a consent to any subsequent
Transfer.
(d) Allowed Transfer
Requirements. For an Allowed Transfer to be valid and effective,
the
following conditions must be fully satisfied:
(1) Tenant
is not in default of its obligations under this Lease at the time of the
Allowed
Transfer;
(2) Landlord
must have received written notice of Tenant's exercise of its right to enter
into an Allowed Transfer, including the name and address of the Transferee, or
the related or successor entity;
(3) Tenant
shall have provided Landlord with a copy of the proposed sublease, assignment or
transfer agreement which states the effective date of the Allowed Transfer;
and
(4) Tenant
shall have received no monetary consideration for the Lease; and
(5) If
Tenant has subleased or assigned this Lease to a parent, subsidiary or
affiliate
of Tenant, evidence that the Transferee or the related successor entity has the
same or better financial position
as the Tenant had of the date that it executed this Lease.
(e) Processing Fee.
Tenant shall pay Landlord a reasonable fee to review the Transfer or an Allowed
Transfer documentation submitted to Landlord not to exceed $2,500.00. Such fee
shall cover the direct and indirect costs and expenses incurred by Landlord in
connection with such review, including, but not limited to the following: wages,
salaries, and benefits of Landlord's employees, fees for services rendered and
costs advanced by architects, engineers, space planners, landscape architects,
construction managers, attorneys, real estate consultants, and other
professionals; copying and messenger fees; general and administrative
expenses.
(f) Subleasing Profits.
Except in the case of an Allowed Transfer, fifty percent (50%) of any rent,
additional rent, fee or charge collected by Assignee in excess of the Rent due
under the Lease as described in Sections 3 and 7.
shall be payable to Landlord as it is collected by Tenant.
(g) Recapture.
(1) If Tenant
wishes to assign the Lease in its entirety to an unaffiliated third party (an
"Assignment"), such Assignment shall be subject to Landlord's right to
recapture.
(2) If
Landlord intends to exercise its right to recapture, Landlord will give notice
of such intent within thirty (30) days after Landlord becomes aware that Tenant
has notified Landlord that Tenant
intends to enter into an Assignment, or within thirty (30) days after Tenant has
requested Landlord's consent to a proposed Assignment, whichever occurs
last.
(3) If
Landlord exercises its right to recapture, Tenant's right to occupy and/or use
the Premises shall terminate on the proposed effective date of the Assignment
(the "Recapture Date").
(4) If
Landlord exercises its right to recapture, Tenant's obligation to pay Rent for
the Recaptured Space shall terminate on the earlier of: the Recapture Date; or
ninety (90) days after Landlord exercises its right to recapture.
12. Care of Premises.
Tenant shall keep the Premises in a reasonably neat, clean and sanitary
condition and shall at all times preserve them in the same condition as when
received, ordinary wear and tear or damage due to casualty or condemnation
excepted. If Tenant shall fail to do so, and after expiration of Tenant's cure
period, Landlord may at its option place the Premises into said condition and
state of repair, and in such case, the Tenant shall pay the costs thereof within
thirty (30) days of Landlord's written demand (with reasonable accompanying
documentation). Tenant shall reimburse Landlord for the cost of replacing all
broken interior or exterior glass with glass of same or similar quality, subject
to Section
18(d). Tenant shall have no responsibility to perform, repair, maintain
or improve any Building system serving the Premises which is located outside the
demising walls of the Premises or does not exclusively serve the Premises.
Landlord shall perform such work and the cost of such work shall be included in
Building Operating Expenses and/or Development Common Area Expenses, as
applicable.
11
13. Surrender of
Possession. Subject to the terms of Section 16 relating
to damage and destruction, and Section 21 relating
to condemnation, upon expiration or termination of the Term of this Lease,
whether by lapse of time or otherwise (including any holdover period), Tenant at
its expense shall: (1) remove Tenant's personal property that (A) was installed
by Tenant and (B) is not attached to the Premises or the removal of which will
not damage the Premises, including, but not limited to: wires, data and voice
cabling and appurtenant installations related thereto including, without
limitation plenums and/or risers (the "Wires"'); furniture; equipment;
inventory, and all other personal property located on the Premises
(collectively, 'Tenant's Personal Property"); (2) repair and restore the
Premises to a condition as good as received by Tenant from Landlord or as
thereafter improved, reasonable wear and tear excepted; and (3) promptly and
peacefully surrender the Premises (including surrender of all Tenant
Improvements and/or other alterations, additions or improvements installed in
the Premises, except Tenant's Personal Property that does not become part of the
Building). Any of Tenant's Personal Property left on the Premises after the
expiration or termination of the Term shall be deemed to have been abandoned and
the property of Landlord to dispose of as Landlord deems expedient, and Tenant
shall be liable for all costs associated with the disposal of such Tenant's
Personal Property. Notwithstanding the forgoing: (1) Landlord shall have the
right, within thirty (30) days prior to the expiration or termination of the
Term of this Lease, to notify Tenant that it intends to reuse all or any portion
of the Wires, and in such event such Wires shall remain in the Premises upon
surrender; and (2) if the Premises have been improved with Nonstandard
Items (and Tenant has been notified that of such Non-Standard Items, as set
forth below), Tenant shall reimburse Landlord for its actual and reasonable
costs to replace all such Non-Standard Items with Building Standard Items, as
defined in Section
14 of this Lease, within thirty (30) days of receipt of an invoice
therefor.
14. Alterations. Tenant
shall make no additions, changes, alterations or improvements (collectively,
"Alterations") to the Premises which exceed the cost of $ 1.00 per foot over the
Term, without the prior written consent of Landlord, which shall not be
unreasonably withheld or delayed. In addition, Tenant shall make no Alternations
to the Premises which include Non-Standard Items, as defined below, which impact
or involve any structural components or the exterior design of the Building, or
which require modification of the electrical or mechanical systems pertaining to
the Building or the Premises, without the prior written consent of Landlord,
which consent may be withheld in Landlord's reasonable discretion.
(a) All
Alterations shall be consistent with building standard: ceiling suspension
systems and ceilings; fluorescent light fixtures; mechanical cooling, heating
and ventilation unit covers; millwork detail; doors and door xxxxx; hardware;
hard surface floor tile; and base trim and all materials used shall be of a
quality comparable to those in the Premises and Building ("Building Standard
Items"). Tenant shall submit to Landlord no later than thirty (30) days before
commencing construction of an Alteration Tenant's plans and/or specifications.
To the extent any proposed item of an Alteration is not consistent with Building
Standard Items. Landlord shall advise Tenant in writing concurrently with
Landlord's consent to the proposed Alterations and in any event prior to the
date that Tenant commences construction of such Alterations (collectively,
"Non-Standard Items").
(b) Tenant
shall pay Landlord a reasonable fee to review Tenant's plans and specifications,
to inspect the Alterations, and (if Landlord requires that the Alterations be
performed under Landlord's supervision) to supervise the Alterations; such
amount shall be no less than the amount necessary to cover all direct and
indirect costs and expenses incurred by Landlord in connection with such review,
inspection, and supervision, including, but not limited to the following: wages,
salaries, and benefits of Landlord's employees; fees for services rendered and
costs advanced by architects, engineers, space planners, landscape architects,
construction managers, attorneys, real estate consultants, and other
professionals; copying and
messenger
fees; and general and administrative expenses; etc. All Alterations shall be
performed in a good and workmanlike manner and shall be in accordance with plans
and specifications approved by Landlord, and Landlord may require that all such
Alterations be performed under Landlord's supervision. If Landlord consents to
and/or supervises any such Alterations by Tenant, the same shall not be deemed a
warranty as to the adequacy of the design, workmanship or quality of materials,
and Landlord hereby expressly disclaims any responsibility or liability for the
same, except for Landlord's negligent supervision. Landlord shall under no
circumstances have any obligation to repair, maintain or replace any portion of
the Alterations.
(c) During
the construction of Alterations, Tenant shall maintain a safe working
environment, including the continuation of all fire and security protection
devices, if any, previously installed in the Premises by Landlord.
12
15. Entry and Inspection.
Landlord, after not less than 24 hours notice and at reasonable times may
enter the
Premises for the purpose of inspecting, altering or improving the Premises or
the Building subject to Tenant's
reasonable security measures; provided, however, in the event of an emergency,
Landlord may immediately
enter the Premises, without notice. Nothing in this Section shall impose
upon Landlord any obligation
not expressly imposed elsewhere in this Lease. Landlord shall have the right at
reasonable times to enter the
Premises for the purpose of showing the Premises to prospective purchasers and
lenders and to prospective
tenants during the period beginning one hundred and eighty (180) days prior to a
the expiration or sooner
termination of this Lease.
16. Damage or
Destruction.
(a) Damage and Repair. In
case of damage to the Premises or the Building by fire or other
casualty, Tenant immediately shall notify Landlord.
(i) If
the cost of restoration as estimated by Landlord shall amount to less than
twenty-five
percent (25%) of said replacement value of the Building and insurance proceeds
sufficient for restoration
(including the amount of any deductibles and coinsurance amounts collected by
Landlord as Building Operating
Expenses) are available, then Landlord shall restore the Building and the
Premises to the extent that the
improvements to the Premises were either originally provided by Landlord or
insured by Landlord, with reasonable
promptness, subject to Force Majeure delays and to delays in the making of
insurance adjustments, and
Tenant shall have no right to terminate this Lease.
(ii) If
the Building is damaged by fire or any other cause to such extent that
thecost of
restoration, as reasonably estimated by Landlord, will equal or exceed twenty
five percent (25%) of the replacement
value of the Building, or if insurance proceeds sufficient for full restoration
(including the amount of any
deductibles and coinsurance amounts collected by Landlord as Building Operating
Expenses) are unavailable
for any reason, then Landlord, no later than the sixty (60) days following the
date of the damage, shall
give Tenant a notice of election to either terminate this Lease or to restore
the Building to the extent that the
improvements were either originally provided by Landlord or insured by Landlord
(which notice will include Landlord's
reasonable estimate of the time to complete such repairs or restoration), in
which case this Lease shall
remain in full force and effect.
(iii) Notwithstanding
subsection (i) and (ii) above, in the event the Building is damaged
such that it in Landlord's reasonable opinion it would take more than three
hundred and sixty-five (365)
days from the date of such damage to restore the Building, then either Landlord
or Tenant may elect to terminate
this Lease in the manner provided herein. Landlord shall notify Tenant no later
than sixty (60) days following
the date of the damage if Landlord concludes the time to complete restoration of
the Building will exceed
365 days. Landlord may include in such notice that it desires to terminate the
Lease; provided, however, if the
Landlord's notice does not include a termination, Tenant may terminate the
Lease, by giving written notice to the
Landlord within ten (10) days thereafter. In the event either party elects to
terminate the Lease. Tenant shall
surrender possession of the Premises within a reasonable time thereafter, and
the Rent shall be apportioned as of the
date of Tenant's surrender and any Rent paid for any period beyond such date
shall be repaid to Tenant.
(b) Rent Abatement; Business
Interruption. In the event of repair, reconstruction and restoration by
or through Landlord as herein provided, the Basic Rent, Additional Rent and any
other charges (including, without limitation, parking charges) payable under the
Lease shall be abated proportionately to the degree to which Tenant's use of the
Premises is materially impaired during the period of such repair, reconstruction
or restoration. Except for such rent abatement, no damages, compensation 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. Landlord shall use commercially reasonable efforts to affect
such repair promptly.
(c) Tenant Improvements -
Alterations - Tenant's Personal Property. Landlord will carry insurance
on the improvements constructed in the Premises. Landlord shall not carry, and
Tenant shall be responsible for insurance coverage for any Alterations and
Tenant's Personal Property. Landlord shall not be obligated, and Tenant shall
repair any damage thereto or replace the same.
17. Indemnification.
Tenant shall indemnify, hold harmless and defend Landlord from and against all
liabilities,
damages, obligations, losses, claims, actions, costs, or expenses, including
attorneys' and other professional
fees, in conjunction with loss of life, personal injury and/or property damage
arising out of the occupancy
or use by Tenant of any part of the Premises, the Building or the Development,
occasioned wholly or in part
by any act or omission of Tenant or its officers, partners, members,
contractors, licensees, agents, servants,
employees, guests, invitees or visitors, except to the extent caused by or
resulting from the negligence or
willful misconduct of Landlord or its employees or agents. The foregoing
provisions shall not be construed to make
Tenant responsible for loss, damage, liability or expense resulting from
injuries to third parties caused by the
gross negligence or willful misconduct of Landlord, its agents or employees or
other tenants of the Building.
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 neglect of any tenant or
occupant of the Building or the
Development or any other third parties as set forth herein.
18.
Insurance.
(a) Liability Insurance.
Throughout the term of this Lease and any renewal or extension hereof, Tenant at
its own expense, shall keep and maintain in full force and effect, a policy of
commercial general liability insurance on an occurrence form including a
contractual liability endorsement covering Tenant's obligations under Section 17. insuring
Tenant's activities upon, in or about the Premises, the Building or the
Development against claims of bodily injury or death or property damage or loss
with a limit of not less than Two Million Dollars ($2,000,000) combined single
limit per occurrence and in the aggregate (per policy year) which shall be
primary and noncontributory. General Aggregate shall apply on a per location
basis. In addition, Tenant shall maintain statutory workers' compensation
insurance and employer's liability insurance with statutory limits as required
in the state and commercial automobile liability insurance in a form providing
coverage not less than the standard commercial automobile liability ISO form CA
00 01 06 92 (or its equivalent) covering all owned, non-owned, borrowed and
hired automobiles in a limit of no less than $1,000,000 per
occurrence.
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(b) Property Insurance.
Throughout the term of this Lease and any renewal hereof, Tenant at its own
expense, shall keep and maintain in full force and effect what is commonly
referred to as "all risk" coverage insurance or its equivalent (but excluding
earthquake and flood) on Tenant's Alterations and Tenant's Personal Property, in
an amount not less than the current 100% replacement value thereof.
(c) Insurance Policy
Requirements. All insurance required under this Section shall be with
companies rated AX or better in Best's Insurance Guide. No insurance policy
required under this Section shall be canceled or reduced in coverage and each
insurance policy shall provide that it is not subject to cancellation or a
reduction in coverage except after thirty (30) days prior written notice to
Landlord. Tenant shall deliver to Landlord prior to its entry into the Premises,
or the Commencement Date, whichever occurs first, and from time to time
thereafter, copies of policies of such insurance or certificates evidencing the
existence and amounts of same and naming Landlord and Landlord's Mortgagee (if
such Mortgagee is identified to Tenant) as an additional insureds thereunder.
The limits of any required insurance policy shall not limit the liability of
Tenant under this Lease.
(d) Waiver of
Subrogation. Notwithstanding any other provision to the contrary herein,
Landlord and Tenant release each other, their agents and employees from
liability and waive all right of recovery against each other for any property
loss from perils insured against under their respective policies for damages
caused by fire or other perils that are covered by insurance (or should have
been covered if Tenant carried the insurance required to be carried by this
Lease and Landlord carried the insurance that is typically carried by reasonably
prudent owners of buildings or developments similar in size, type, location and
quality as the Building and Development), regardless of any fault or negligence.
Deductibles under any such policies shall be deemed to be self insured and shall
be included within such waiver of subrogation. Each party shall use reasonable
efforts to cause its insurance carriers to consent to the foregoing waiver of
rights of subrogation against the other party and shall promptly inform the
other if its insurance company refuses to do so. Notwithstanding the foregoing,
no such release shall be effective unless and to the extent the aforesaid
insurance policy or policies expressly permit such release or contain a waiver
of the carrier's right to be subrogated.
(e) Landlord's Insurance.
Landlord agrees to maintain such property insurance on the Building which is
required by Landlord's first mortgage lender (which currently is carried at 100%
replacement cost on a blanket basis with Landlord's other properties), or if no
such loan exists, such casualty insurance and all-risk property damage insurance
as is determined by Landlord as appropriate to protect against casualty loss and
property damage, which shall be consistent with the property insurance typically
carried by reasonably prudent owners of buildings or developments similar in
size, type, location and quality as the Building and Development. In addition,
Landlord shall carry commercial liability insurance in commercially reasonable
amounts, consistent with what that is typically carried by reasonably prudent
owners of buildings or developments similar in size, type, location and quality
as the Building and Development. The cost of such insurance and any other form
of insurance carried by Landlord with respect to the Building or the Development
shall be included as either part of the Building Operating Expenses or the
Development Common Area Expenses.
19. Advertising and
Signs. Tenant shall not place on the exterior of the Premises or the
Building, or any
exterior door or wall or the exterior or interior of any window thereof, or any
part of the interior of the Premises
visible from the exterior thereof, any sign or advertising matter and shall not
place any decoration, letter or
other thing of any kind on the glass of any window or door of the Premises,
without the prior written consent
of Landlord. With respect to any sign or advertising matter or decoration
approved by Landlord, Tenant at its
sole cost and expense shall maintain the same in good condition and repair at
all times. Landlord hereby reserves
the exclusive right to use for any purpose whatsoever the roof and exterior of
the walls of the Premises or the
Building. Landlord reserves the right to temporarily remove Tenant's sign during
any period when Landlord
repairs, restores, constructs or renovates the Premises or Building. Landlord
shall have the right to prohibit
any advertising by Tenant that, in Landlord's reasonable opinion, tends to
impair the reputation of the Building
as a Class A office building. Upon the expiration or sooner termination of this
Lease, Tenant at Landlord's
request shall remove all signs, advertising matters or decorations at its sole
cost and expense and repair
any resulting damage to the Premises.
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20. Insolvency and
Liens.
(a) Insolvency. If Tenant
becomes insolvent, or voluntarily or involuntarily bankrupt, or if a receiver,
assignee or other liquidating officer is appointed for the business of Tenant,
and any of the foregoing is not dismissed within sixty (60) days thereafter.
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 rights or privileges
hereunder be an asset of Tenant in any bankruptcy, insolvency or reorganization
proceeding. In the event of an assumption or assignment by operation of law
under the federal Bankruptcy Code or any state bankruptcy or insolvency law and
Landlord elects (or is otherwise prevented from electing) not to terminate this
Lease, the trustee in assuming this Lease or any assignee thereof shall (a)
remedy the Tenant's prior default under this Lease, (b) be bound by and assume
all of the terms and conditions of this Lease, (c) provide adequate assurances
of future performance of all the terms, conditions and covenants of this Lease,
which shall include making the following express covenants to the Landlord; (1)
there is sufficient capital to pay all Rent due under the Lease for the entire
Term, (2) assumption of the Lease by any assignee will not cause Landlord to be
in violation or breach of any provision of any existing lease, finance
agreement, or operating agreement concerning or in the Development, and (3) such
assumption or assignment by the assignee will not substantially disrupt or
impair any existing tenant mix or development plans for the Building or
Development.
(b) Liens. Tenant shall
not permit any lien to be filed against the Development or the Building by
reason of obligations incurred by or on behalf of Tenant. Tenant hereby
indemnifies and holds Landlord harmless from any liability from any such lien.
If any lien is filed against the Development, or the Building by any person
claiming by. through or under Tenant, Tenant shall upon request of Landlord, at
Tenant's expense, immediately furnish to Landlord a bond in form and amount and
issued by a surety satisfactory to Landlord, indemnifying Landlord against all
liability, costs and expenses, including 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 Development or
the Building rising from work done or materials provided to and for Tenant, if,
and only if, such proceedings suspend the collection thereof from Landlord and
neither the Development or the Building nor any part thereof or interest therein
is or will be in any danger of being sold, forfeited or lost.
21. Condemnation.
(a) Entire Taking. If
fifty-one percent (51 %) or more of the Premises is taken by eminent domain,
this Lease shall automatically terminate as of the date title vests in the
condemning authority and all Rent and other payments shall be paid to that
date.
(b) Partial Taking. In
the event of a taking of fifty percent (50%) or less of the Premises, or a
portion of the Building or the Development Common Areas not required for the
reasonable use of the Premises, this Lease shall continue in full force and
effect, and to the extent applicable, Basic Rent shall be equitably reduced
based on the proportion by which the floor area of the Premises is reduced, and
Additional Rent shall be adjusted based on a recalculation of the Building's Pro
Rata Share. Rent adjustment shall be effective as of the date title to such
portion vests in the condemning authority. In the event of a taking of a portion
of the Building or the Development Common Areas required for the reasonable use
of the Premises, which cannot be restored or reconstructed except as to
materially alter the use of the Premises, either Landlord or Tenant may
terminate this Lease by notifying the other party of such termination within
sixty (60) days prior to the anticipated date of vesting of title; and this
Lease shall expire on the date vesting of title and the Rent hereunder shall be
apportioned as of such date.
(c) Awards and Damages.
Landlord reserves all rights to damages to the Premises, the Building or the
Development for any partial or entire taking by eminent domain, and Tenant
hereby assigns to Landlord any right Tenant may have to such damages or award
(except for Tenant's Personal Property and moving expenses Tenant is entitled to
as a separate award under state law), and Tenant shall make no claim against
Landlord or the condemning authority for damages for termination of the
leasehold interest. Tenant shall
have the right, however, to claim and recover from the condemning authority
compensation for any loss to which Tenant may be put but only to the extent that
such loss is awarded separately in the eminent domain proceedings and not out of
or as part of damages recoverable by Landlord.
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22.
Default.
(a) Cumulative Remedies.
All rights and remedies of Landlord herein enumerated shall be cumulative, and
none shall exclude any other right or remedy allowed by law. Notwithstanding the
foregoing, Landlord hereby waives any statutory lien rights Landlord may have as
to Tenant's client files, records or legal documents.
(b) Tenant's Right to
Cure. Tenant shall have a period of five (5) days from the date of
written notice from Landlord to Tenant that such payment is past due within
which to cure any default in the payment of Rent, and other sums due hereunder.
Tenant shall have a period of thirty (30) days from the date of written notice
from Landlord to Tenant within which to cure any other default hereunder, but
with respect to any such default that cannot reasonably be cured within thirty
(30) days, the default shall not be deemed to be uncured if Tenant commences to
cure within a reasonable time not to exceed thirty (30) days and for so long as
Tenant is diligently prosecuting the cure thereof.
(c) Vacation and
Abandonment Vacation shall mean a prolonged absence from the Premises
without continued payment of Rent. Abandonment shall mean an absence from the
Premises of five (5) days or more while Tenant is in default. Any vacation or
abandonment by Tenant shall be considered a default with no right to cure,
allowing Landlord to re-enter the Premises under this Section 22.
(d) Landlord's Re-entry.
Upon a default by Tenant and the expiration of the applicable cure period.
Landlord, besides other rights or remedies it may have, at its option, may
terminate Tenant's right to possession of the Premises without terminating this
Lease and may enter the Premises or any part thereof, either with or without
process of law, and expel, remove or put out Tenant or any other persons who may
be thereon, together with all personal property found therein 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, renovate, remodel,
redecorate, alter and change the Premises, Tenant remaining liable for any
deficiency computed as hereinafter set forth; or Landlord may terminate this
Lease and relet the Premises for the Tenant's account. In the case of any
termination or re-entry and/or disposition by summary proceedings or otherwise,
all Rent shall become due thereupon and be paid up to the time of such
termination, re-entry or dispossession together with such expenses as Landlord
may incur for reasonable attorneys' fees, advertising expense, 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 22(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 first to the payment of any indebtedness from Tenant
to Landlord other than Rent; second, to the payment of any 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, renovations,
remodeling, redecoration. alterations and changes in the Premises: third, to the
payment of Rent due and to become due hereunder, and. if after so applying said
rents there is any deficiency in the 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 months shall not prejudice in any way the right of Landlord
to collect the deficiency for any subsequent month. Landlord shall take
reasonable steps to relet the Premises as required by law. The failure or
refusal of Landlord to relet 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 relet, or in the event of reletting, for failure to collect 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
re-entry 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 remedies it may have,
it may recover from Tenant the present value of the amount of Rent reserved by
this Lease for the balance of the Term, as it may have extended, over the then
fair market rental value of the Premises for the same period, plus all expenses,
including court costs and attorneys* fees incurred by Landlord in the collection
of the same discounted to present value.
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(f) Right to Perform. If
Tenant shall fail to pay any sum of money, required to be paid by Tenant to a
person or entity other than Landlord or shall fail to perform any other act to
be performed by Tenant hereunder, and such failure shall continue for ten (10)
days after notice thereof by Landlord, Landlord may, but shall not be obligated
so to do, and without waiving or releasing Tenant from any obligations of
Tenant, make any such payment or perform any such other act on Tenant's part to
be made or performed as provided in this Lease. Notwithstanding any other
provision hereof. Landlord may undertake repairs in an emergency or to prevent
further damage to the Building or Premises without delivery of notice and
expiration of the cure
period. 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 as in the
case of default by Tenant in the payment of Rent.
(g) Late Payments. All
Rent or other payments that have not been paid within three (3) days of the due
date shall bear interest from the date due at twelve percent (12%) per annum or
the maximum permitted by law whichever is less. In addition to any interest that
may be charged hereunder, if Tenant has been late in any payment more than three
(3) times in any twelve (12) month period, then Landlord, at its option, may
collect from Tenant a service charge for the collection of any subsequent
payment during that twelve (12) month period which is not made within five (5)
days of the due date in the amount equal to four percent (4%) of the amount
due.
23. Subordination to
Mortgage. This Lease shall be subordinate to any mortgage or deed of
trust placed at any time on the Building or the Development by 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'*), but Tenant's rights under this Lease and Tenant's possession of the
Premises shall not be disturbed so long as Tenant performs all its obligations
under this Lease. At the request of the holder of a Landlord's Mortgage (the
"Holder"), Tenant agrees to execute the Holder's standard form of subordination,
attornment, and nondisturbance agreement (the "SNDA") acceptable to Tenant, and
Tenant's agreement to subordinate to any future Landlord's Mortgage is
conditioned upon the Holder's execution of such SNDA. Landlord and Tenant
acknowledge that the current Holder's form of SNDA is attached hereto as Exhibit F. If the
Holder wishes to have this Lease as a prior lien to the Landlord's Mortgage, it
shall be so deemed upon the Holder so notifying Tenant. Tenant in any event
shall not terminate this Lease on account of a foreclosure of Landlord's
Mortgage or exercise of power of sale under Landlord's Mortgage or deed in lieu
of foreclosure, and Tenant shall attorn to the transferee of the Building or
Development upon such foreclosure, exercise of power, sale or deed in lieu of
foreclosure upon the request of that transferee, so long as such transferee
recognizes Tenant's rights under this Lease and right to possess the Premises,
so long as Tenant is not in default under this Lease beyond any applicable
notice and cure periods. Tenant shall properly execute and deliver within ten
(10) days of written notice any documents (in form and substance reasonably
acceptable to Tenant) Landlord or Holder may reasonably require to carry out the
provisions of this Section 23.
Notwithstanding anything to the contrary in this Section 23, or Exhibit F. in no
event will Tenant be required to execute any documents referenced in this
Section 23, including without limitation, the SNDA attached hereto as Exhibit F. without a
reasonable opportunity to negotiate commercially reasonable modifications to
such documents with the applicable Holder or other party to such documents,
provided that. Tenant shall provide such Holder or other party with any proposed
modifications promptly (and in any event within the ten (10) day period
referenced above). Tenant will cooperate with Landlord and such Holder or other
party to finalize any such documents as soon as reasonably practicable, using
all commercially reasonable diligent efforts.
24. Mortgagee Protection.
Tenant agree to give any Holder, by registered mail, a copy of any notice of
default served upon the Landlord, provided that prior to such notice Tenant has
been notified in writing (by way notice of assignment of rents and leases, or
otherwise) of the address of such Holder. If Landlord shall have failed to cure
such default within thirty (30) days the Holder shall have an additional thirty
(30) days within which to cure such default or if such default cannot be cured
within that time, then, such additional time as necessary to cure such default
(including the time necessary to foreclose or otherwise terminate its
Encumbrance, if necessary to effect such cure), and this Lease shall not be
terminated so long as such remedies are being diligently pursued.
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25. Holdover. Tenant is
not authorized to hold over beyond the expiration or earlier termination of the
Lease Term. If Landlord consents to a holdover and no other agreement is reached
between Tenant and Landlord concerning the duration and terms of the Holdover,
Tenant's holdover shall be a month-to-month tenancy. During such tenancy, Tenant
shall pay to Landlord One Hundred Fifty Percent (150%) of the rate of Basic Rent
in effect on the expiration or termination of the Term plus all Additional Rent
and other sums payable under this Lease, and shall be bound by all of the other
covenants and conditions specified in this Lease, so far as applicable. If
Landlord does not consent to the Tenant's remaining in possession, Landlord
shall have all the rights and remedies provided for by law and this Lease,
including the right to recover consequential damages suffered by Landlord in the
event of Tenant's wrongful refusal to relinquish possession of the Premises. The
Basic Rent applicable for the period that Tenant wrongfully remains in
possession shall be increased to twice the rate of Basic Rent in effect on the
expiration or termination of the Lease Term
26. Agent. Landlord has
appointed Xxxxxxx Development Company ("SDC") as its agent in all matters
concerning this Lease, and the Tenant, until notified in writing to the
contrary, shall pay all rent and give any notices hereunder to SDC at the
address listed below. As long as such agency shall exist, each and every term
and provision of this Lease that is in any way beneficial to Landlord, including
any limitation of liability, shall inure to the benefit of SDC and its agents
and shall be applicable to SDC and its agents in the same manner as fully and
with the same effect as Landlord. Tenant may rely without further inquiry upon
the authority of Xxxxxxx Development Company.
27. Notices. All notices
under this Lease shall be in writing and delivered in person or sent by air
courier or registered or certified mail, return receipt requested, postage
prepaid, to Landlord and to Tenant at the addresses
listed below, and to the holder of any first mortgage or deed of trust at such
place as such holder shall specify to Tenant in writing; or such other addresses
as may from time to time be designated by any such party in writing. Notices
mailed as aforesaid shall be deemed given at the earlier of three (3) business
days after the date of such mailing, one (1) business day after being sent by
air courier or upon the date of receipt.
28. Costs and Attorneys'
Fees. If Tenant or Landlord shall bring any action arising out of this
Lease, 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 commencement of such action.
29. Estoppel
Certificates. Tenant shall, from time to time, upon written request of
Landlord, execute, acknowledge and deliver to Landlord or its designee a written
statement stating (or modified as appropriate to be factually correct): (i) the
date this Lease was executed and the date it expires; (ii) the date the Term
commenced and the date Tenant accepted the Premises; (iii) the amount of Rent
and date of which such Rent has been paid (iv) to Tenant's knowledge this Lease
is in full force and effect and has not been assigned, ratified, supplemented or
amended in any way (or specifying the date and terms of any agreement so
affecting this Lease); (v) this Lease represents the entire agreement between
the parties as to the Premises; (vi) all conditions under this Lease to be
performed by the Landlord have been satisfied, including, without limitation,
all cotenancy requirements, if any; (vii) all required contributions by
Landlord to Tenant on account of Tenant's improvements have been received;
(viii) that as of the date of such request there are no existing claims,
defenses or offsets which the Tenant has against the enforcement of this Lease
by the Landlord; (ix) no Rent has been paid more than one month in advance; (x)
the amount of the security deposit held by Landlord; and (xi) any other
information or items reasonably requested by the Holder of Landlord's Mortgage.
Landlord's existing Holder currently requests the form attached hereto as Exhibit G. It is
intended that any such statement delivered pursuant to this Section 29 may be
relied upon by a prospective purchaser of Landlord's interest, a prospective
Holder, or assignee 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 Holder.
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30. Limitation of
Liability. Notwithstanding any other Lease provision, all covenants,
undertakings and agreements 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 Development as described on Exhibit A-l. but are
made and intended for the purpose of binding only the Landlord's interest in the
Development described on Exhibit A-1, 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, shareholders, directors and officers or their
respective heirs, legal representatives, successors or assigns on account of the
Lease or on account of any covenant, undertaking or agreement of Landlord in
this Lease contained.
31. Transfer of Landlord's
Interest. In the event of any transfer or transfers of Landlord's
interest in the Development, other than a transfer for security purposes only,
the transferee shall be deemed to have assumed the obligations and liabilities
of Landlord as of the date of such transfer and 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, so long as such transferee assumes and agrees to perform ail
obligations of Landlord to be performed from and after the date of
transfer.
32. Nonwaiver. 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 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 so accepted, regardless of Landlord's knowledge of
such preceding breach at the time of acceptance of such Rent.
33. Quiet Possession.
Landlord warrants that so long as Tenant is not in default under this Lease
beyond any applicable cure period, Tenant's quiet possession of the Premises
shall not be disturbed by Landlord or others claiming through
Landlord.
34. Letter of Credit. As
security for the full and faithful performance of every covenant and condition
of this Lease to be performed by Tenant, Tenant shall deliver to Landlord the
Letter of Credit specified in Section 1.
Landlord
shall be entitled to draw upon the Letter of Credit upon demand, without prior
notice to Tenant, at any time or from time to time on or after (1) the
occurrence of any default by Tenant beyond any applicable notice and cure period
with respect to any covenant or condition of this Lease, including but not
limited to the payment of Rent, (2) if Tenant, or anyone in possession of the
Premises through Tenant, holds over after the expiration or earlier termination
of this Lease without Landlord's prior written consent, (3) Landlord is given
notice by the issuer of the Letter of Credit that it is terminating the Letter
of Credit, (4) a
confirming
bank gives notice to Landlord that it will cease to act in that capacity, or (5)
the Letter of Credit expires on a specified date by its terms and is not renewed
or replaced at least sixty (60) days in advance of its expiration date or (6) to
the extent permitted by law, in the event any bankruptcy, insolvency,
reorganization or any other debtor creditor proceeding is instituted by or
against Tenant.
Landlord
may apply the proceeds drawn on the Letter of Credit to the payment of any sum
in default or any sum which Landlord may be required to spend or incur by reason
of Tenant's default or any other sum which Landlord may in its reasonable
discretion deem necessary to spend or incur by reason of Tenant's default, in
such order and priority as Landlord elects in its absolute discretion. If any of
the proceeds drawn on the Letter of Credit are not applied immediately to sums
owing to Landlord under this Lease, Landlord may retain any such excess proceeds
as a cash Lease Security Deposit for application, at Landlord's election, to
future sums owing to Landlord under this Lease, in such order and priority as
Landlord elects in its absolute discretion. Tenant shall, within fifteen (15)
days after Landlord's demand, restore the amount of the Letter of Credit drawn
to the extent necessary so that the sum of any Security Deposit held by Landlord
(that was not applied to amounts payable under the Lease) and the Letter of
Credit is equal to the original amount of the Letter of Credit. If Tenant does
not restore the Letter of Credit to its original amount within the required time
period, such non-restoration shall be considered an Event of
Default.
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If Tenant
shall have fully complied with all of the covenants and conditions of this
Lease, the Letter of Credit shall be returned to Tenant or, if Landlord has
drawn on the Letter of Credit, the remaining proceeds of the Letter of Credit
which are in excess of sums due the Landlord shall be repaid to Tenant, without
interest, within thirty (30) days after the expiration or termination of the
Lease Term and delivery of possession of the Premises to Landlord in accordance
with this Lease.
In the
event of a sale or transfer of Landlord's estate or interest in the Land and
Building, Landlord shall have the right to transfer the Letter of Credit to the
vendee or the transferee, Tenant shall pay any transfer fees charged by the
issuing bank and Landlord shall thereafter be considered released by Tenant from
all liability for the return of the Letter of Credit. Tenant shall cooperate in
effecting such transfer.
In the
event of Tenant's default beyond any applicable notice and cure period.
Landlord's rights to draw on the Letter of Credit shall be deemed to be in
addition to any and all other rights and remedies at law or in equity available
to Landlord for Tenant's default under this Lease.
35.
Landlord
Default. If Landlord fails to perform any of its obligations under this
Lease within a commercially
reasonable period of time under the circumstances after receipt of written
notice from Tenant specifying
Landlord's deficiency, Landlord shall be in default under this Lease; provided,
however, that if the nature of
Landlord's obligation is such that in excess of thirty (30) days are reasonably
required for its performance,
then Landlord shall not be in default if Landlord commences such performance
within thirty
(30) days
and thereafter diligently pursues the same to completion. Upon any such uncured
default by Landlord, Tenant may exercise any of its rights provided in law or at
equity, except those rights that Tenant specifically waives
hereunder.
36. General.
(a) Headings. Titles to
Sections of this Lease are not a part of this Lease and shall have no effect
upon the construction or interpretation of any part hereof.
(b) Heirs and Assigns.
All of the covenants, agreements, terms and conditions contained in this Lease
shall inure to and be binding upon Landlord and Tenant and their respective
heirs executors, administrators, successors and assigns.
(c) No Brokers. Except
for Colliers International, Tenant represents and warrants to Landlord that it
has not engaged any broker, finder or other person who would be entitled to any
commission or fees from Landlord in respect of the negotiation, execution or
delivery of this Lease and shall indemnify and hold harmless Landlord against
any loss, cost, liability or expense incurred by Landlord as a result of any
claim asserted by any such broker, finder or other person on the basis of any
arrangements or agreements made or alleged to have been made by or on behalf of
Tenant. Except for The Xxxxxxxxx Group, Landlord represents and warrants to
Tenant that it has not engaged any broker, finder or other person who would be
entitled to any commission or fees from Tenant in respect of the negotiation,
execution or delivery of this Lease and shall indemnify and hold harmless Tenant
against any loss, cost, liability or expense incurred by Tenant as a result of
any claim asserted by any such broker, finder or other person on the basis of
any arrangements or agreements made or alleged to have been made by or on behalf
of Landlord. The provision of this paragraph shall not apply to brokers with
whom Landlord has an express written brokerage agreement.
20
(d) Identification of
Tenant. If more than one person executes this Lease as Tenant, (i) each
of them is jointly and severally liable for the keeping, observing and
performance of all of the terms, covenants, conditions, provisions and
agreements of this Lease to be kept, observed and performed by Tenant, and (ii)
the term "Tenant" as used in this Lease shall mean and include each of them
jointly and severally. The act of or notice from, or notice of refund to, or the
signature of any one or more of them, with respect to the tenancy
of this Lease, including, but not limited to any renewal, extension, expiration,
termination or modification of this Lease, shall be binding upon each and all of
the persons executing this Lease as Tenant with the same force and effect as if
each and all of them had so acted or so given or received such notice or refund
or so signed.
(e) Entire Agreement.
This Lease contains all covenants and agreements between Landlord and Tenant
relating in any manner to the leasing, use and occupancy of the Premises and
Tenant's use of the Building and other matters set forth in this Lease, except
for any parking, storage, lease take-over, or marina agreements which may be
separately executed by the parties. No prior agreements or understanding
pertaining to the same shall be valid or of any force or effect and the
covenants and agreements of this Lease shall not be altered, modified or added
to except in writing signed by Landlord and Tenant.
(f) Severability. Any
provision of this Lease that shall prove to be invalid, void or illegal shall in
no way affect, impair or invalidate any other provision hereof and the remaining
provisions hereof shall nevertheless remain in full force and
effect.
(g) Force Majeure. Time
periods for Landlord's performance under any provisions of this Lease shall be
extended for periods of time during which Landlord's performance is prevented
due to circumstances beyond Landlord's control, including without limitation,
terrorist attacks, strikes, embargoes, shortages of labor or materials,
governmental regulations, acts of God, war or other strife.
(h) Changes to Building.
Landlord shall have the right, from time to time, without thereby
creating an actual or constructive eviction or incurring any liability to
Tenant, to change the arrangement or
location of the Building Common Areas or the Development Common Areas or any
part thereof, including, without
limitation, entrances, passageways, doors and doorways, corridors, stairs,
toilets, and other similar public
service areas. Nevertheless, in no event shall Landlord change the arrangement
or location of the elevators
serving the Premises, make any other change which alters the character of the
Building from a Class A building.
Landlord may change the name of the Building at any time.
(i) Building Directory.
Landlord shall maintain in the Lobby of the Building at Landlord's
sole cost and expense, a directory which shall include the name of Tenant and
any other names reasonably
requested by Tenant in proportion to the number of listings given to comparable
tenants of the Building.
(j)
Governing Law.
This Lease shall be governed by and construed in accordance with the laws of the
State of Washington.
(k) Authority. Tenant
shall, concurrently with execution of this Lease, deliver to Landlord a
certified copy of a resolution of the executive committee or other governing
authority of Tenant authorizing or ratifying the execution of this Lease and
granting or confirming the authority of the person executing this Lease on
behalf of Tenant or provide other evidence of such authority reasonably
satisfactory to Landlord.
(1) Notice Addresses. All
notices given under this Lease shall be sent to the addresses set forth on the
signature page of this Lease, or to such other address as either party from time
to time may provide the other in writing.
21
(m) Recordation. Tenant
shall not record or file this Lease or any assignment or security document
pertaining to this Lease on or with respect to any or all part of Tenant's
interest therein without the prior written consent of Landlord, which consent
may be subject to conditions as Landlord shall deem appropriate and which may be
withheld in Landlord's sole discretion. Upon request of Landlord, however,
Tenant shall execute a memorandum or "short form" of this Lease for the purpose
of recordation in a form customarily used for such purpose. Such memorandum or
short form of this Lease shall describe the parties, the Premises and the term
hereof and may, at the Landlord's option, incorporate this Lease by
reference.
(n) Time is of the
Essence. Time is of the essence as to the dates and timeframes set forth
in this Lease.
IN
WITNESS WFJEREOF. the Landlord and the Tenant have signed their name and affixed
their seals the day and year first above written.
TENANT: | LANDLORD: | |
AIRLINE
INTELLIGENCE SYSTEMS INC.,
a
Delaware corporation
|
CARILLON
PROPERTIES,
a
Washington general partnership
|
|
By
XXXXXXX DEVELOPMENT COMPANY, a
Washington
corporation
Its:
Managing General Partner
|
||
By: ____________________________________ | By: _________________________________________ | |
Its: ____________________________________ | Xxxxxxx Xxxxxx | |
Its Vice President & General Manager | ||
Address: | Address: | |
0000
Xxxxxxxx
Xxxxx
Xxxxxxxx,
XX 00000
|
c/x
Xxxxxxx Development Company
0000
Xxxxxxxx Xxxxx
Xxxxxxxx,
XX 00000
|
|
And
To:
00
Xxxxxxxxxx Xxx., Xxxxx 000
Xxxxxxx,
XX X0X 0X0
Exhibit
A-l
|
Legal
and Development Description
|
Exhibit
A-2
|
Site
Layout
|
Exhibit
B
|
Premises
Floor Plan
|
Exhibit
C
|
Intentionally
Omitted
|
Exhibit
D
|
Additional
Provisions
|
Exhibit
E
|
Parking
Agreement
|
Exhibit
F
|
Subordination,
Non Disturbance and Attornment Agreement
|
Exhibit
G
|
Landlord's
Mortgagee's form of Tenant Estoppel Certificate
|
Exhibit
H
|
Landlord
accepted form of Letter of Credit
|
22
Notary
AIRLINE
INTELLIGENCE SYSTEMS, INC.
STATE
OF
)
)
ss.
COUNTY
OF )
On
this________day of __________, 2007, before me, a Notary Public in and for
the State of ___________ ,
personally appeared____________________, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person who
executed this instrument, on oath stated that __________was authorized to execute the instrument, and acknowledged it as the
__________of_____________to
be the free and voluntary act and deed of said
corporation for the uses and purposes mentioned in the instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and official seal the day and year
first above written.
Signature of Notary Public | ||
(Print Name) | ||
NOTARY
PUBLIC in and for the State
of ______,
residing at___________
My
appointment
expires ____________________
|
Carillon
Properties
STATE OF
WASHINGTON
)
) ss.
COUNTY
OF
KING
)
On
this__________day of ____________, 2007, before me, a Notary Public in and
for the State of
Washington, personally appeared Xxxxxxx Xxx and,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person who executed this instrument, on oath stated that she was
authorized to execute the instrument, and acknowledged it as Vice President & General
Manager of Xxxxxxx Development
Company, the Managing General Partner of
Carillon Properties, to be the free and voluntary act and deed of said
corporation for the uses and purposes mentioned in the instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and official seal the day and year
first above written.
Signature of Notary Public | ||
(Print Name) | ||
NOTARY
PUBLIC in and for the State
of
Washington, residing
at ________________
My
appointment expires __________________
|
||
Type
of Document: ________________
Document
Date:__________________
Number
of Pages:_________________
|
23
EXHIBIT A-1
LEGAL AND
DEVELOPMENT DESCRIPTION For Lease Agreement
Between CARILON
PROPERTIES ("Landlord")
and AIRLINE
INTELLIGENCE SYSTEMS INC. (Tenant")
Description of
Development
The
Development is a mixed-use project to consist of buildings and uses up to the
following sizes: a 100-room hotel; 20,000 square feet of retail space; 20,000
square feet of restaurant space; 430,000 square feet of Class A office building
space; a 200-slip marina; and Development Common Areas. The real property is
legally described on Exhibit A-1 and the
Development, the Development Common Areas and the Building are shown on Exhibit
A-2.
Legal
Description
that
portion of government lots 1 and 2 in the northwest 1/4 of section 17. township
25 north, range 5 east x.x.;
together
with blocks "f' and "g" of the second supplemental plat of lake washington
shorelands;
and
together with second class shorelands as conveyed by the state of washington,
situate in front of. adjacent to, or abutting thereon, described as
follows:
beginning
at the meander corner on the north line of said section, said corner being a
brass cap monument:
thence
south 88 36'25" east (bearing refer to the k.c.a.s. meridian), along the north
line of said section, 48.76 feet;
thence
south 01 23'35" west 842.60 feet to the intersection of the south line of the
north 842.60 feet of said government lot 1 with the westerly right-of-way line
of lake washington blvd. northeast (sr 908) and the true point of
beginning;
thence
north 88 36'25" west, along said south line, 562.00 feet to the inner harbor
line as defined by the state of washington in 1920 and 1921;
thence
south 01 09'29" west. along said inner harbor line. 1531.93 feet;
thence
continue along said inner harbor line south 13°i0"38" east 84.06 feet to the
intersection of a line that is parallel with the north line of the south 1/2 of
the south 1/2 of said government lot 2 extended westerly is 75.00 feet south of
the intersection of said north line with said westerly right-of-way line of lake
washington blvd. northeast (sr 908) as measured along said right-of-way
line:
thence
south 88 51 '33" east, along said line. 889.31 feet to the westerly right-of-way
line of said xxxx xxxxxxxxxx xxxx. xxxxxxxxx (xx 000);
thence
north 03 09' 13" west, along said westerly right-of-way line, 462.20
feet;
thence
continue along said right-of-way line north 86°50'47" east 10.40
feet;
thence
continue along said westerly right-of-way line north 03 09' 13" west 313.01
feet:
thence
continue along said westerly right-of-way line on a tangent curve to the left
in
a
northwesterly direction. having a radius of 542.96 feet, through a central angle
of 32
42-07"
an arc distance of 309.90 feet:
thence
continue along the southwesterly right-of-way line of said lake washington blvd.
northeast (sr 908) north 35°51 "20" west 67.87 feet;
thence
continue along said right-of-way line on a tangent curve to the right in a
northwesterly and northerly direction, having a radius of 602.96 feet. through a
central angle of 27 42' 10" an arc distance of 291.53 feet;
thence
continue along said westerly right-of-way line north 08 09' 11" west 234.43 feet
to the true point of beginning;
except
that portion hereof lying north of the south line of the north 1,076.80 feet of
said government lot 1 and its westerly prolongation;
and
except that portion thereof conveyed to the city of xxxxxxxx for road proposes
by deed recorded under recording no. 8907281497;
situated
in the city of xxxxxxxx, county of king, state of washington.
Landlord's Intials | Tenant's Intials |
24
EXHIBIT A-2
SITE LAYOUT For
Lease Agreement
Between CARILON
PROPERTIES ("Landlord")
and AIRLINE
INTELLIGENCE SYSTEMS INC. (Tenant")
Landlord's Intials | Tenant's Intials |
25
EXHIBIT B
FLOOR PLAN For Lease Agreement
Between CARILON PROPERTIES ("Landlord")
and AIRLINE INTELLIGENCE SYSTEMS INC.
(Tenant")
PREMISES
LOCATION
BUILDING
3000
Floor: 5'"
Approximately
15,166 Rentable Square Feet
Approximately
13,413 Usable Square Feet
Floor
Plan
Tenant
hereby acknowledges and agrees that Tenant has had and adequate opportunity to
measure the Premises and to verify the figures set forth in this Lease for
Rentable Square Feet and Usable Square Feet, using whatever methods, means,
devices and/or personnel Tenant might have desired. Landlord and Tenant hereby
agree to be bound by such figures under the terms of this Lease, notwithstanding
the fact that measuring the Premises using different methods, means, devices,
and/or personnel might yield different results.
(Area
represents approximate Premises)
Landlord's Intials | Tenant's Intials |
26
EXHIBIT
C
INTENTIONALLY
OMITTED
Landlord's Intials | Tenant's Intials |
27
EXHIBIT D
ADDITIONAL
PROVISION For Lease Agreement
Between CARILON
PROPERTIES ("Landlord")
and AIRLINE
INTELLIGENCE SYSTEMS INC. (Tenant")
D
l. Option to Extend
Term.
(a) Exercise of Option to Extend
Term. If Tenant has not been in default beyond any applicable cure period
in any of its obligations under this Lease during the Lease Term, and Tenant is
not in default of its obligations under this Lease beyond any applicable notice
and cure periods at the time of Tenant's exercise, then Tenant shall have the
option and right to extend the Term (the "Option") for a three (3) year period
(the "Extended Term") upon compliance with this Section. Tenant shall
exercise its Option by delivering written notice to Landlord of such exercise
not less than ten (10) months prior to the end of the Term. If Tenant fails to
give its written notice by said time, then the Option shall immediately lapse
and terminate without any further notice or action by Landlord. The period of
the exercised Option shall be included within the meaning of "Term." All terms
and conditions of this Lease shall apply during the entire Term as extended by
Tenant's exercised Option, except Basic Rent shall be established as provided in
Subsection (b) or
(c) below and any obligation of Landlord as to improvements to the
Premises set forth in Section 4 of the Lease shall not apply. The Option is
granted specifically to the named Tenant entity and any successor pursuant to an
Allowed Transfer, and no other assignee, subtenant or successor through a
Transfer shall hold the Option to extend the Term unless Landlord expressly
grants such Option to the assignee, subtenant or successor.
(b) Basic Rent During Extended
Term. The annual Basic Rent to be paid in each year of the Extended Term
shall be equal to the annual fair market rental (the "AFMR") for recent lease
renewals of comparable office space in the Development (comparable office space
being a comparable size, with similar views, grade of the tenant improvements,
and concessions given), taking into consideration the additional rent then being
charged to other tenants in the Development and other relevant factors, but in
no event shall the Rent during any year of the Extended Term be less than the
Rent being paid to Landlord in the past twelve (12) months of the original Lease
Term. Tenant may request not earlier than twelve (12) months prior to the
expiration of the original Term Landlord's opinion as to the amount of AFMR and
Basic Rent due and payable by Tenant during each year of the applicable Extended
Term. Landlord shall provide to Tenant such opinion within thirty (30) days
thereafter. After receiving Landlord's determination of AFMR and Basic Rent,
Tenant shall have the right any time prior to the expiration of the Option to
notify Landlord in writing that it is exercising its Option and: (i) that Tenant
accepts Landlord's determination of AFMR and annual Basic Rent during the
Extended Term, in which event Landlord and Tenant shall enter into an amendment
to this Lease so specifying the annual Basic Rent; or (ii) notify Landlord that
Tenant disagrees with Landlord's determination of the AFMR and wishes to utilize
the appraisal process pursuant to Subsection (c)
below.
(c) Appraisal Process. If
Tenant does not agree as the Landlord's determination of AFMR, then the AFMR
shall be established by a rental study by appraisers as provided herein. The
appraisal determination shall be completed on or before sixty (60) days after
Tenant exercises its Option (the "Exercise Date"). The parties shall use their
best efforts to designate a single licensed M.A.I. appraiser, but if the parties
are unable to agree upon a single appraiser within ten (10) days after the
Exercise Date, then Landlord and Tenant each shall immediately designate an
M.A.I, appraiser having at least five (5) years experience appraising office
rental property in the greater Seattle metropolitan area. The two appraisers
designated shall then immediately designate a third appraiser similarly
qualified. Within thirty (30) days of being chosen, the appraiser(s) shall
promptly conduct an independent rental study and narrative comparison of the
AFMR for each lease year of the Extended Term taking into account recent lease
renewals of comparable office space in the Development (comparable office space
being a comparable size, with similar views, grade of the tenant improvements,
and concessions given), the additional rent then being charged to other tenants
in the Development, and other relevant factors such facts as are appropriate and
customary in establishing an AFMR. In the case of a single appraiser, the
appraiser shall deliver his or her opinion directly to the Landlord and Tenant.
In the case of three appraiser, as soon as the studies are complete, the
appraisers shall meet and attempt to reach agreement upon the AFMR for the
Premises. If the appraisers are unable to agree, then the two rates closest in
amount for each year of the Extended Term shall be mathematically averaged and
that average shall be the AFMR for determining Basic Rent for the Premises.
Notwithstanding the foregoing, in no event shall the Rent during any year of the
Extended Term be less than the Rent being paid to Landlord in the last twelve
(12) months of the original Lease Term. Each party shall pay the cost of its own
appraiser and shall pay one-half the costs of the third appraiser. If the
appraisal determination is not completed within sixty (60) days after the
Exercise Date, and as extended by one day for each day Landlord delays naming
its appraiser after then tenth (10th) day following the Exercise Date, Tenant
agree to accept the Basic Rent for each lease year at the Basic Rent determined
by Landlord.
D2. Moorage. Subject to
availability, Tenant shall have the right to rent during the Term, at Landlord's
prevailing market rate as it may be adjusted from time to time, one slip in
Landlord's marina. This right shall be exercised by Tenant's notifying
Landlord's of its election to lease a slip, and if such slip is available.
Tenant's contemporaneous execution of a separate Marina Lease, with marina rent
commencing upon the
execution of the Marina Lease. If a slip is not available, Tenant shall have a
priority on the marina waiting list to rent a slip. Tenant's priority shall be
subject to any priorities granted by Landlord to other tenants or marina tenants
or condominium purchasers within the Development.
28
D3. Rules and Regulations for
Development Common Areas. Tenant, including, without limitation, its
officers, partners, members, agents, employees and independent contractors,
shall comply with the rules and regulations that Landlord may from time to time
promulgate and/or modify which are not inconsistent with the terms of this
Lease, do not materially increase Tenant's obligations under the Lease or
decrease Tenant's rights under the Lease and do not discriminate against Tenant.
The rules and regulations shall be binding upon Tenant upon delivery of a copy
of them to Tenant, so long as the rules and regulations apply to all office
tenants in the Development. Landlord shall use reasonable efforts to insure
performance of the rules and regulations, and Tenant shall notify Landlord of
any nonperformance by any tenant of which Tenant is aware, but Landlord shall
not be liable to Tenant for any damages due to any nonperformance of the rules
and regulations.
D4. Sorting and Separation of
Refuse and Trash. Tenant covenants and agrees, at its sole cost and
expense, to comply with all present and future laws, orders, and regulations of
all state, federal, municipal, and local governments, departments, commissions,
and boards regarding the collection, sorting, separation, and recycling of waste
products, garbage, refuse, and trash. Tenant shall sort and separate such waste
products, garbage, refuse, and trash into such categories as provided by law.
Each separately sorted category of waste products, garbage, refuse, and trash
shall be placed in separate receptacles reasonably approved by Landlord. Such
separate receptacles may, at Landlord's option, be removed from the demised
Premises in accordance with a collection schedule prescribed by
law.
Landlord
reserves the right to refuse to collect or accept from Tenant any waste
products, garbage, refuse, or trash that is not separated and sorted as required
by law, and to require Tenant to arrange for such collection at Tenant's sole
cost and expense, utilizing a contractor satisfactory to Landlord. Tenant shall
pay all costs, expenses, fines, penalties, or damages that may be imposed on
Landlord or Tenant by reason of Tenant's failure to comply with the provisions
of this article, and, at Tenant's sole cost and expense, shall indemnify,
defend, and hold Landlord harmless (including legal fees and expenses) from and
against any actions, claims, and suits arising from such noncompliance,
utilizing counsel reasonably satisfactory to Landlord.
D5. Right of First Offer.
If Tenant has not been in default beyond any applicable notice or cure periods
in any of its obligations under this Lease more than once per year during the
Lease Term, and Tenant is not in default of its obligations under this Lease
beyond any applicable notice and cure periods at the time of Tenant's exercise,
during the original Term, Tenant shall have the one-time Right of First Offer
("ROFO") to lease any space that is located on the fifth (5th)
floor (the "ROFO Space") when it becomes available, subject to the prior rights
of tenants existing as of the date of this Lease. When Landlord is notified that
space will be available, prior to marketing the space for lease. Landlord shall
notify Tenant in writing of the size, location, Landlord's reasonable
determination of the annual fair market rental (the "AFMR") for recent leases of
comparable office space in the Development, taking into consideration the
additional rent then being charged to other tenants in the Development and other
relevant factors, date of availability, length of term and other material
business terms. Tenant shall then have ten (10) business days to exercise its
ROFO, during which, if requested by Tenant, Landlord agrees to meet with Tenant
to discuss in good faith any modifications to the AFMR that Tenant may request,
provided, that, Landlord shall have no obligation whatsoever to agree to any
such modifications pursuant thereto. If Tenant does not notify Landlord in
writing that it elects to lease the ROFO Space within the ten (10) business day
period, then Landlord thereafter may lease the ROFO Space to a third party
without any further notice to or right of Tenant and the ROFO shall
terminate.
If Tenant
exercises its ROFO within such 10-day period. Landlord and Tenant shall enter
into a Lease Amendment stating the Basic Rent and Base Year as determined by the
AFMR (as it may have been modified pursuant to discussions between Landlord and
Tenant during the 10-business day exercise period), the Tenant's Pro Rata Share
adjusted to reflect the additional rentable square feet, and otherwise, Tenant
shall let the ROFO Space on the same terms and conditions as this Lease, except
that the provisions of Section 4 of the Lease shall not apply.
D6. Conflict. In the
event of any conflict between the terms of this Exhibit D and any
other provision of the Lease, the provisions of Exhibit D shall
prevail.
Landlord's Intials | Tenant's Intials |
29
EXHIBIT E
PARKING AGREEMENT For Lease Agreement
Between CARILON PROPERTIES ("Landlord")
and AIRLINE INTELLIGENCE SYSTEMS INC.
(Tenant")
El.
Landlord hereby grants Tenant and persons designated by Tenant a license to use
the P-3500 Parking Garage located at Xxxxxxxx Xxxxx, Xxxxxxxx, XX 00000. The
term of this license shall be the same duration as the Lease Term. Tenant shall
have the right to use up to 3.75 parking permits per 1,000 usable square feet of
the Premises. Therefore, from the Commencement Date, Tenant shall have the
license to use up to fifty (50) parking stalls. Tenant shall pay in advance, on
or before the first day of each month, a parking charge equal to the use of each
of the stalls Tenant elects to license for such month based upon the rate
schedule below.
For the
first 12 months after the Commencement Date, Tenant shall pay $100.00 per
parking stall per month plus Washington State Sales Tax.
Thereafter
through the Expiration of the Lease Term, Tenant shall the monthly charges
established from time to time by Landlord for parking in the Garage, per stall
per month, plus Washington State Sales Tax. Adjustments to the monthly parking
charge for each parking stall shall only be made after twenty (20) days written
notice by Landlord.
No
deductions from the monthly charge shall be made for days on which the Garage is
not used by Tenant. However. Tenant may reduce the number of parking stalls
which Tenant is using, at any time, by providing at least twenty (20) days
advance written notice to Landlord, accompanied by any Key-card, sticker or
other identification or entrance system provided by Landlord or its parking
contractor.
E2.
Tenant shall pay Landlord's monthly charges established from time to time by
Landlord for VIP parking stalls in the Garage if requested by Tenant, on a per
stall per month basis, plus Washington State Sales Tax. Such VIP permits shall
be provided and used on the terms and conditions of this Parking
Agreement.
E3.
Tenant may from time to time, request additional parking permits, over and above
their allotment, and Landlord shall provide the same, subject to then current
availability, as determined by Landlord and such monthly parking charges shall
be one and one-half (1-1/2) times the market rate as determined by Landlord as
Landlord shall establish from time to time. For any parking stalls provided over
the allotted amount above, the charge for said stalls over the allotment. Such
additional parking permits shall be provided and used on the terms and
conditions of this Parking Agreement.
E4.
Tenants shall at all times comply with all applicable ordinances, rules,
regulations, codes, laws, statutes and requirements of all federal, state,
county and municipal governmental bodies or their subdivisions respecting the
use of the Garage. Landlord reserves the right to adopt, modify and enforce
reasonable Parking Rules governing the use of the Garage from time to time,
including any key-card, sticker or other identification or entrance system and
hours of operation. The Rules set forth hereinafter as Schedule 1 are
currently in effect. Tenant agrees to acquaint with these Rules all person to
whom Tenant assigns a parking stall. Landlord may refuse to permit any person
who violates such Rules to park in the Garage, and any violation of the Rules
shall subject the car to removal from the Garage.
E5.
Tenant may validate visitor parking by such reasonable methods as the Landlord
may approve, at the validation rate from time to time generally applicable to
visitor parking. The parking stalls hereunder shall be provided on an unreserved
"first-come, first-served" basis. Except for gross negligence on the Part of
Landlord, Landlord shall have no liability whatsoever for any damage to property
or any other items located in the Garage or for any personal injuries or death
arising out of any matter relating to the Garage (a "Garage Claim"). In all
events, Tenant hereby agrees releases, indemnifies and agrees to hold Landlord
harmless from a Garage Claim and agrees to look to its liability and property
insurance carrier for payment of any losses sustained in connection with
Tenant's, its employees, agents or invitees use of the Garage, and Tenant hereby
waives on behalf of its liability and property insurance carriers all rights of
subrogation against Landlord.
E6.
Landlord reserves the right to assign specific stalls and to reserve stalls for
visitors cars, handicapped persons and for other tenants, guests for tenants or
other parties, and Tenant and persons designated by Tenant hereunder shall not
park in any such assigned or reserved stalls. Landlord also reserves the right
to close all or any portion of the Garage in order to make repairs or perform
maintenance services, or to alter, modify, re-stripe or renovate the Garage, or
if required by Force Majeure or other reason beyond Landlord's reasonable
control. In such event, Landlord shall refund any prepaid parking rent
hereunder, prorated on a per diem basis. If, for any other reason, Tenant or
persons properly designated by Tenant, shall be denied access to the Garage, and
Tenant or such persons shall have complied with the Agreement and this Agreement
shall be in effect, Landlord's liability shall be limited to such parking
charges (excluding tickets for parking violations) incurred by Tenant or such
persons in utilizing alternative parking which amount Landlord shall pay upon
presentation of documentation supporting Tenant's claims in connection
therewith.
30
E7. If
Tenant shall default under the Lease or this Parking Agreement, Landlord shall
have the right to remove from the Garage any vehicles hereunder which shall have
been involved or shall have been owned or driven by parties involved in causing
such default, without liability therefor whatsoever. In addition, if Tenant
shall default under this Parking Agreement, Landlord shall have the right to
cancel this Parking Agreement on ten (10) days written notice, unless within
such ten (10) day period Tenant cures such default. If Tenant defaults with
respect to the same term or condition under this Parking Agreement more than
three times (3x) during any twelve (12) month period, the next default of such
term or condition during the succeeding twelve month period, shall, at Landlords
election constitute an incurable default. Such cancellation right shall be
cumulative and in addition to any other rights or remedies available to Landlord
at law or equity, or provided under the Lease (all of which rights and remedies
under the Lease are hereby incorporated herein, as though fully set forth). Any
default by Tenant under the Lease shall constitute a default under this
Agreement, and any default under the Parking Agreement shall be a default under
the Lease.
CARRILON POINT
Schedule 1
Parking Garage
Rules
A.
|
Attended
Garage hours shall be 7am to 7pm, Monday through
Friday.
|
B.
|
Cars
must be parked entirely within the stall lines painted on the floor, and
only small cars may be parked in
areas reserved for small
cars.
|
C.
|
All
directional signs and arrows must be
observed.
|
D.
|
The
speed limit shall be 5 miles per
hour.
|
E.
|
Stalls
reserved for handicapped parking must be used only by vehicles properly
designated.
|
F.
|
Parking
is prohibited in all areas not expressly designated for parking, including
without limitation: (i)
areas
not striped for parking; (ii) aisles; (iii) where ''no parking" signs are
posted; (iv) ramps; and (v)
loading
zones.
|
G.
|
Monthly
parkers must park their vehicles in the Parking Garage specified in the
Parking Agreement.
|
H.
|
Tenant
must complete a card-key application form prior to receiving a parking
permit.
|
I.
|
Parking
permits or any other devices or forms of identification or entry supplied
by Landlord shall remain the
property of Landlord. The serial number of the parking identification
device may not be obliterated. Devices
are not transferable and any device in the possession of an unauthorized
holder will be
void.
|
J.
|
Garage
managers or attendants are not authorized to make or allow any exception
to these Rules.
|
K.
|
Every
xxxxxx is required to park and lock his own
car.
|
L.
|
Loss
or theft of parking identification, key cards or other such devices must
be reported to Landlord or any garage manager immediately. Any parking
devices reported lost or stolen found on any unauthorized car will be
confiscated and the illegal holder will be subject to prosecution. Lost or
stolen devices found by Tenant or its employees must be reported to the
Tenant Service Center.
|
M.
|
Washing,
waxing, cleaning or servicing of any vehicle by the customer and/or his
agents is prohibited. Parking stalls may be used only for parking
automobile
|
Landlord's Intials | Tenant's Intials |
31
EXHIBIT F
SUBORDINATION NON DISTURBANCE AND ATTORNMENT AGREEMENT
For Lease Agreement
Between CARILON PROPERTIES ("Landlord")
and AIRLINE INTELLIGENCE SYSTEMS INC.
(Tenant")
GRANTOR/TENANT:
__________________________________
GRANTEE/LENDER: TEACHERS
INSURANCE AND ANNUITY ASSOCIATION OF
AMERICA
Legal
Description:
Abbreviated
Form: PORTION OF GOVERNMENT LOTS 1
AND 2 IN THE
NORTHWEST 1/4
OF SECTION
17,
TOWNSHIP 25 NORTH, RANGE
5 EAST, X.X.
Additional
legal is on Exhibit A to document.
Assessor's
Tax Parcel ID
#:
172505-9058-09 & 172505-9120-03
THIS
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT (this "Agreement" is made by
and between TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA, a New York
corporation with offices at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000
("Lender")
and _______________________________with its principal place of business at
________________________ ("Tenant").
RECITALS:
A.
Lender has made a loan (together with all advances and increases, the "Loan") to Carillon Properties, a
Washington general partnership ("Borrower").
B. Borrower,
as landlord, and Tenant have entered into a lease dated_________________as
amended
by amendment(s) dated ____________ (The "Lease") which leased
to Tenant Suite No. 3500 located
in the Property (defined below).
C. The
Loan is or will be secured by the (Open-End) Mortgage, Assignment of Leases and
Rents,
Fixture Filing Statement and Security Agreement recorded or to be recorded in
the official records of the County of
King, State or
Commonwealth of Washington (together
with all advances, increases, amendments or consolidations,
the "Mortgage")
and the Assignment of Leases and Rents recorded or to be recorded in such
official
records (together with all amendments or consolidations, the "Assignment"),
assigning to Lender thLease and
all rent, additional rent and other sums payable by Tenant under the Lease (the
"Rent").
D. The
Mortgage encumbers the real property, improvements and fixtures located at 1000-7000
Carillon Point in the
City of Xxxxxxxx, County of
King, State or
Commonwealth of Washington, commonly
known as
Carillon Point,
and described on Exhibit "A" (the
"Property").
IN
CONSIDERATION of the mutual agreements contained in this Agreement. Lender and
Tenant agree as follows:
1. Subject
to the terms and conditions hereof, the lease and all of Tenant's rights under
the Lease are and will remain subject and subordinate to the lien of the
Mortgage and all of Lender's rights under the Mortgage and Tenant will not
subordinate the Lease to any other lien against the Property without Lender's
prior consent.
2. This
Agreement constitutes notice to Tenant of the Mortgage and the Assignment and,
upon receipt of notice from Lender, Tenant will pay the Rent as and when due
under the Lease to Lender and the payments will be credited against the Rent due
under the Lease.
3. Tenant
does not have and will not acquire any right or option to purchase any portion
of or interest in the Property.
4. Tenant
and Lender agree that if Lender exercises its remedies under the Mortgage or the
Assignment and if Tenant is not then in default under this Agreement and if
Tenant is not then in default beyond any applicable grace and cure periods under
the Lease:
32
(a) Lender
will not name Tenant as a party to any judicial or non-judicial foreclosure or
other proceeding to enforce the Mortgage unless joinder is required under
applicable law but in such case Lender will not seek affirmative relief against
Tenant, the Lease will not be terminated and Tenant's possession of the Leased
Space will not be disturbed;
(b) If Lender
or any other entity (a "Successor Landlord")
acquires the Property through foreclosure, by other proceeding to enforce the
Mortgage or by deed-in-lieu of foreclosure (a "Foreclosure"),
Tenant's possession of the Leased Space will not be disturbed and the Lease will
continue in full force and effect between Successor Landlord and Tenant;
and
(c) If,
notwithstanding the foregoing, the Lease is terminated as a result of
Foreclosure, a lease between Successor Landlord and Tenant will be deemed
created on the same terms as the Lease except that the term of the replacement
lease will be the then unexpired term of the Lease. Successor Landlord and
Tenant will execute a replacement lease at the request of either.
5. Upon
Foreclosure, Tenant will recognize and attorn to Successor Landlord as the
landlord under the
Lease for the balance of the term. Tenant's attornment will be self-operative
with no further instrument
required to effectuate the attornment except that at Successor Landlord's
request. Tenant will execute instruments
reasonably satisfactory to Successor Landlord confirming the
attornment.
6. Successor
Landlord will not be:
(a) liable
for any act or omission of any prior landlord under the Lease occurring before
the date of the Foreclosure except for repair and maintenance obligations of a
continuing nature imposed on the landlord under the Lease;
(b) required
to credit Tenant with any Rent paid more than one month in advance or for any
security deposit unless such Rent or security deposit has been received by
Successor Landlord;
(c) bound by
any amendment, renewal, or extension of the Lease that is inconsistent with the
terms of this Agreement or is not in writing and signed by both Tenant and
Landlord;
(d) bound by
any reduction of the Rent unless the reduction is in connection with an
extension or renewal of the Lease at prevailing market terms or was made with
Lender's prior consent;
(e) bound by
any reduction of the term of the Lease or any termination, cancellation or
surrender of the Lease unless the reduction, termination, cancellation or
surrender occurred during the last 6 months of the term, or was made with
Lender's prior consent;
(f) bound by
any amendment, renewal or extension of the Lease entered into without Lender's
prior consent if the Leased Space represents 50% or more of the net rentable
area of the building in which the Leased Space is located;
(g) subject
to any credits, offsets, claims, counterclaims or defenses that Tenant may have
that arose prior to the date of the Foreclosure or liable for any damages Tenant
may suffer as a result of any misrepresentation, breach of warranty or any act
of or failure to act by any party other than Successor Landlord;
(h) bound
by any obligation to make improvements to the Property, including the Leased
Space, to
make any payment or give any credit or allowance to Tenant provided for in the
Lease or to pay any leasing
commissions arising out of the Lease, except that Successor Landlord will
be:
(i)
|
bound
by any such obligations provided for in the Lender-approved form
lease;
|
|
(ii)
|
bound
by any such obligations if the overall economic terms of the Lease
(including the
economic terms of any renewal options) represented market terms for
similar space
in properties comparable to the Property when the Lease was executed;
and
|
(iii)
|
bound
to comply with the casualty and condemnation restoration provisions
included in
the Lease provided that Successor Landlord receives the insurance or condemnation
proceeds;
or
|
(j)
liable for obligations under the Lease with respect to any off-site property or
facilities for the use of Tenant (such as off-site leased space or parking)
unless Successor Landlord acquires right, title or interest to the off-site
property.
7. Lender
will have the right, but not the obligation, to cure any default by Borrower, as
landlord, under the Lease. Tenant will notify Lender of any default that would
entitle Tenant to terminate the Lease or xxxxx the Rent and any notice of
termination or abatement will not be effective unless Tenant has so
notified
___________________________
For
purposes of this subparagraph "the term of the Lease" includes any renewal term
after the right to renew has been exercised.
33
Lender of
the default and Lender has had a 30-day cure period (or such longer period as
may be necessary, if the default is not susceptible to cure within 30 days)
commencing on the latest to occur of the date on which (i) the cure period under
the Lease expires; (ii) Lender receives the notice required by this paragraph;
and (iii) Successor Landlord obtains possession of the Property if the default
is not susceptible to cure without possession.
8. All
notices, requests or consents required or permitted to be given under this
Agreement must be in writing and sent by certified mail, return receipt
requested or by nationally recognized overnight delivery service providing
evidence of the date of delivery, with all charges prepaid, addressed to the
appropriate party at the address set forth above.
9. Any claim
by Tenant against Successor Landlord under the Lease or this Agreement will be
satisfied solely out of Successor Landlord's interest in the Property and Tenant
will not seek recovery against or out of any other assets of Successor Landlord.
Successor Landlord will have no liability or responsibility for any obligations
under the Lease that arise subsequent to any transfer of the Property by
Successor Landlord.
10. This
Agreement is governed by and will be construed in accordance with the laws of
the state or commonwealth in which the Property is located.
11. Lender
and Tenant waive trial by jury in any proceeding brought by. or counterclaim
asserted by. Lender or Tenant relating to this Agreement
12
If there is a conflict between the terms of the Lease and this Agreement
will prevail as between Successor Landlord and Tenant.
13. This Agreement binds and anures to the benefit of Lender and
Tenant and their respective successros, assignees, heirs, administrators,
executors, agents and representatives.
14. This
Agreement contains the entire agreement between Lender and Tenant with respect
to the subject
matter of this Agreement, may be executed in counterparts that together
constitute a single document and may be
amended only by a writing signed by Lender and Tenant.
IN
WITNESS WHEREOF, Lender and Tenant have executed and delivered this
Agreement as of _________,
20____.
LENDER: | TENANT: | |
TEACHERS INSURANCE AND ANNUTY | ||
ASSOCIATION
OF AMERICA,
a
New York corporation
|
By: ________________________________ | By: ________________________________ | |
Name: ______________________________ | Name: ______________________________ | |
Title:________________________________
|
Title:________________________________
|
34
Notary
STATE
OF
)
)
ss.
COUNTY
OF )
On
this________day of __________, 2007, before me, a Notary Public in and for
the State of ___________ ,
personally appeared____________________, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person who
executed this instrument, on oath stated that __________was authorized to execute the instrument, and acknowledged it as the
__________of_____________to
be the free and voluntary act and deed of said
corporation for the uses and purposes mentioned in the instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and official seal the day and year
first above written.
Signature of Notary Public | ||
(Print Name) | ||
NOTARY
PUBLIC in and for the State
of ______,
residing at___________
My
appointment
expires ____________________
|
STATE
OF
)
)
ss.
COUNTY
OF )
On
this________day of __________, 2007, before me, a Notary Public in and for
the State of ___________ ,
personally appeared____________________, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person who
executed this instrument, on oath stated that __________was authorized to execute the instrument, and acknowledged it as the
__________of_____________to
be the free and voluntary act and deed of said
corporation for the uses and purposes mentioned in the instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and official seal the day and year
first above written.
Signature of Notary Public | ||
(Print Name) | ||
NOTARY
PUBLIC in and for the State
of ______,
residing at___________
My
appointment
expires ____________________
|
Landlord's Initials | Tenant's Initials |
35
EXHIBIT G
FORM OF
TENANT ESTOPPEL CERTIFICATE
For
Lease Agreement Between CARILLON PROPERTIES ("Landlord")
and
AIRLINE INTELLIGENCE SYSTEMS INC. ("Tenant")
Date:
Teachers
Insurance and Annuity
Association
of America
000 Xxxxx
Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attn: Xx.
Xxxxxx Xxxxxxx
RE:
|
X0XX
Xxxx. #000387801
Carillon
Point
0000-0000
Xxxxxxxx Xxxxx
Xxxxxxxx,
XX 00000
|
It is our
understanding that you have committed to place a mortgage upon the subject
premises and as a condition precedent thereof have required this certification
of the undersigned.
The
undersigned, as lessee, under that certain lease dated
_______________with
CARILLON PROPERTIES, as lessor, hereby ratifies said lease and
certifiesthat, as of the date hereof:
1.
the "Commencement Date" of said lease was___________________ with the
extended term
commencing on ________________: and
2. the undersigned is presently solvent and free from
reorganization and/or bankruptcy and is in occupancy; open ; and conducting
business with the public in the premises; and
3. the operation and use of the premises do not involve the
generation, treatment, storage, disposal or release of a hazardous substance or
a solidswaste in the environment other that to the extent necessary to conduct
its ordinary courses of businsss in the premises and in accordance with all
applicable environmental laws, and that the premises are being operared in
accordance with all applicable environmental laws, zoning ordinances and
building codes; and
4. as of ___________________, base and rental payable
pursuant to the terms of said lease is $_______________ per annum; and further;
additional rental pursuant to said lease is payable as follows; and
5. said lease is in full force and effect and has not been
assigned, modified, supplemented or amended in any (except in Agreement dated)
dated _______________, and to Tenant's knowledge, neither party thereto is in
default thereunder ; and
6. the lease described above represents the entire agreement
between the parties as to the leasing of the premises; and
7. the term of the said lease expries on____________; and
8. all conditions under said lease to be performed by the lessor
have been satisfied, including, without limitation, all co-tenacy requirements
thereunder, if any, except _____________; and
9. all required contributions by lessor to lessee on account of
lessee's improvements have been received except_______________; and
10. on this date there is no existing defenses or offsets, claims
or counterclaims which the undersigned has against the enforcement of said lease
by the lessor except______________;
11.
no rental
has been paid in advance and no security (except the security deposit in the
amount of $_________ as been deposited with lessor; and
12. lessee's
floor area as set forth in the Lease is______________square feet;
and
36
13. the
most recent payment of current basic rental was for the payment due on
20___________,
and all basic rental and additional rental payable pursuant to the terms of the
lease have been paid up
to said date; and
14. the
undersigned acknowledges notice that lessor's interest under the lease and the
rent and all other sums due thereunder will be assigned to you as part of the
security for a mortgage loan by you to lessor. In the event that Teachers
Insurance and Annuity Association of America, as lender, notifies the
undersigned of a default under the mortgage and demands that the undersigned pay
its rent and all other sums due under the lease to lender, lessee agrees that it
shall pay its rent and all such other sums to lender.
Landlord's Initials | Tenant's Initials |
37
38
39
40