EXHIBIT 10.1
------------
LEASE
RAZORE LAND COMPANY, LANDLORD
PHAGE THERAPEUTICS INTERNATIONAL, INC., TENANT
DATED OCTOBER 27, 2000
LEASE
TABLE OF CONTENTS
Page
1...BASIC LEASE TERMS
2............PREMISES
3................TERM
3.1................................................Commence
3.2..................................................Expire
4...TENANT IMPROVEMENTS; EARLY POSSESSION; DELAYED DELIVERY
OF POSSESSION
4.1.....................................Tenant Improvements
4.2.........................................Early Occupancy
4.3..........................................Landlord Delay
4.4............................................Tenant Delay
5...RENT
5.1....................................................Rent
5.2.......................................Manner of Payment
5.3 ......................................Rent Commencement
6...PREPAID RENT AND SECURITY DEPOSIT
6.1.................................................Deposit
6.2..................................Use of Deposit to Cure
6.3..............................Return of Security Deposit
6.4...........................Treatment as Security Deposit
6.5.................Landlord's Obligation Regarding Deposit
7...USE OF PREMISES
7.1.....................................................Use
7.2.........................................Prohibited Uses
7.3.............................................No Nuisance
7.4............................Telecommunications Providers
8...ADDITIONAL RENT FOR OPERATING EXPENSES
8.1..........................................Tenant Payment
8.2..........................................Tenant's Share
8.3.............................................Definitions
8.4.....................Determination of Operating Expenses
8.5...... ...................................Reconciliation
8.6..................................Upon Lease Termination
8.7.........................................Landlord Rights
9...MAINTENANCE AND REPAIR RESPONSIBILITY
9.1.................................Maintenance Obligations
9.2............................No Obligation For Alteration
9.3...........................................Tenant Waiver
10...COMMON AREAS
10.1....................................Use of Common Areas
10.2.............................Definition of Common Areas
11...UTILITIES AND SERVICES
11.1...................Furnishing of Utilities and Services
11.2....................................Additional Services
11.3............................................After Hours
11.4........................................Separate Meters
11.5................................................Failure
12...LIMITS ON LANDLORD'S LIABILITY
12.1...........................Circumstances Beyond Control
12.2.........................Unreasonable Period of Failure
12.3..........................................Tenant Caused
12.4...................................No Abatement of Rent
12.5........................................No Interference
13...ALTERATIONS AND ADDITIONS BY TENANT; LIENS AND INSOLVENCY
13.1....................Alterations and Additions by Tenant
13.2...................................Liens and Insolvency
14...INSURANCE; INDEMNITY
14.1..........................................Tenant Waiver
14.2..............................................Indemnity
14.3..............................Landlord's Responsibility
14.4.....................................Tenant's Insurance
14.5...............................................Policies
14.6...................................Landlord's Insurance
14.7...............................................Proceeds
14.8..................................Waiver of Subrogation
14.9..............................Notification of Accidents
15...DESTRUCTION
15.1....................................Election to Restore
15.2.........................................Rent Abatement
15.3........................Repairs to Tenant Installations
15.4........................................No Compensation
16...CONDEMNATION
16.1...................................Termination of Lease
16.2................................Election of Termination
16.3......................................Reduction of Rent
16.4..................................................Award
16.5.....................................Landlord Authority
17...ASSIGNMENT AND SUBLETTING
17.1..............................Landlord Consent Required
17.2......................................Deemed Assignment
17.3..............................................Recapture
17.4................................Additional Requirements
17.5.............................Assignment with Bankruptcy
17.6...................................................Sale
17.7................................................Binding
18...DEFAULT
18.1..................................Definition of Default
18.2....................................Tenant Notification
18.3.......................................Landlord Default
18.4......................................Rental Concession
19...REMEDIES IN DEFAULT
19.1......................................Landlord Remedies
19.2................................Tenant Payment of Costs
19.3............................................Termination
19.4.........................................No Termination
19.5..............Landlord Election to Make Tenant Advances
20...ACCESS
21...SURRENDER OF PREMISES; HOLD-OVER TENANCY
21.1..................................Surrender of Premises
21.2......................................Hold-Over Tenancy
22...COMPLIANCE WITH LAW
23...RULES AND REGULATIONS
24...PARKING
25...ESTOPPEL CERTIFICATES
26...SUBORDINATION
27...REMOVAL OF PROPERTY
28...PERSONAL PROPERTY TAXES
29...NOTICES
30...CONDITION OF PREMISES
31...HAZARDOUS SUBSTANCES
31.1.....................................Tenant Obligations
31.2.......................................Tenant Indemnity
31.3....................................Landlord Inspection
31.4...............................................Survival
32...SIGNS
33...GENERAL PROVISIONS
33.1........................................Attorneys' Fees
33.2...................................Governing Law; Venue
33.3....................................Cumulative Remedies
33.4......................................Exhibits; Addenda
33.5.........................................Interpretation
33.6.......................................Joint Obligation
33.7...................................................Keys
33.8.................................Late Charges; Interest
33.9...................................Light, Air, and View
33.10..........................................Measurements
33.11..................................................Name
33.12..........................Prior Agreements; Amendments
33.13...........................................Recordation
33.14.............................................Liability
33.15..........................................Severability
33.16..................................................Time
33.17................................................Waiver
33.18..............................................No Waste
33.19.........................................Force Majeure
33.20.......................................Quiet Enjoyment
33.21.....................................Building Planning
34...AUTHORITY OF TENANT
34.1..................................Tenant as Corporation
34.2...........................Tenant as Partnership or LLC
35...FINANCIAL STATEMENTS
36...COMMISSIONS
Exhibits to this Lease:
Exhibit A-1 Premises
Exhibit A-2 Legal Description of Property
LEASE
LEASE, dated OCTOBER 27, 2000, between RAZORE LAND COMPANY, a Washington
corporation ("Landlord"), and Phage Therapeutics International, a Florida
corporation, ("Tenant"). 1. Basic Lease Terms. This Section sets forth certain
basic terms of this Lease for reference purposes. This Section is to be read in
conjunction with the other provisions of this Lease; provided, however, to the
extent of any inconsistency between this Section and the other provisions of
this Lease, this Section shall control.
Leased Premises (Seess.2) Operating Expenses (Seess.8)
Business Park QUADRANT PARKSIDE CENTER Tenant's Share 5.08% of property
Initial Additional Rent
Building Name Building One $1,926.21Month
Address 00000 - 000xx Xxxxxx XX Parking (Seess.24)
Suite 102 2.8/1000 unreserved parking spaces
Xxxxxxx, XX 00000
Brokers (Seess.36)
Rentable Sq. Ft. approximately 5,148 rsf For Tenant Colliers International
For Landlord Colliers International
Rent; Prepaid Rent; Security Deposit
(Seess.5 and 6) Addresses for Notices (Seess.29)
Base Monthly Rent Landlord:
Year 1: $15.50/sf/year ($6,649.50/month)
Year 2: $16.12/sf/year ($6,915.48/month) Razore Land Company
Year 3: $16.77/sf/year ($7,194.33/month) C/o Quadrant/KMS Management Services
Year 4: $17.44/sf/year ($7,481.76/month) 000 000xx Xxxxxx XX, Xxxxx 000
Year 5: $18.13/sf/year ($7,777.77/month) Xxxxxxx, XX 00000
Tel: 000-000-0000
Prepaid Rent $8,575.71 Fax: 000-000-0000
(first month rent & operating expenses) Attn: Xxxxxx X. Xxxx
Security Deposit $75,000 CD
(see 1A2) Tenant:
Term (Seess.3) Phage Therapeutics, Inc.
00000 - 000xx Xxxxxx XX, Xxxxx 000
Commencement Date November 15, 2000 Xxxxxxx, XX 00000
Rent Commencement Date November 15, 2000 Attn: Xxxxxxx Honour
Expiration Date November 30, 2005 Tel: _________________________
Length of Term 60 months, plus Fax: _________________________
Partial month
Permitted Use
General office use, laboratory areas and warehouse Storage.
1A. Special Lease Terms. The following additional Lease terms shall apply. To
the extent of any inconsistency between this Section 1A and the other
provisions of this Lease, this Section 1A shall control.
1A.1.Tenant Improvements. Landlord shall professionally steam clean the carpet
and paint the entire space. Landlord shall also professionally clean the
air ducting system including replacing any in flow or out flow HVAC vents.
In addition, Landlord shall make the grade level roll up door operational
including removing the concrete pillars, which are currently in front of
the door. Finally Landlord shall replace a broken window below the
conference room.
0X.0.Xxxxxxxx Deposit. Tenant shall provide and maintain a cash certificate of
deposit (CD) with a credible financial institution acceptable to Landlord.
The amount of the CD shall be $75,000, which equals 6 months rent,
operating expenses and real estate fees.
1.A.3. Option to Renew. Tenant shall have one (1) five (5) year option to renew
the lease. Tenant shall give Landlord nine (9) months prior written notice
of its intent to renew. In addition, the rental rate for the first year of
the renewal term shall not be less than the final year of the initial lease
term.
2. Premises. Landlord agrees to lease to Tenant and Tenant agrees to lease
from Landlord the Premises described on Exhibit A-1 and consisting of
approximately the square feet designated in Section 1. The Premises are a
part of the Building, located on the real property described on Exhibit A-2
("Property"). The Premises, Building, and Property are part of a business
park described on Exhibit A-3 ("Business Park").
3. Term.
3.1 Commence. The term of this Lease ("Term") shall commence on the
Commencement Date set forth in Section 1, subject to Section 4.
3.2 Expire. The Term shall expire on the Expiration Date set forth in Section
1, unless sooner terminated or extended as provided in this Lease.
4. Tenant Improvements; Early Possession; Delayed Delivery of Possession.
4.1 Tenant Improvements. Landlord shall provide a new demising wall separating
the balance of the space. Please see Exhibit A-1 for a detailed space plan.
4.2 Early Occupancy. If Landlord permits Tenant to occupy the Premises prior to
the Commencement Date set forth in Section 1, the Commencement Date and
Rent Commencement Date shall be such date of occupancy. Tenant's occupancy
prior to the originally scheduled Commencement Date shall be subject to all
the provisions of this Lease and shall not advance the Expiration Date.
4.3 Landlord Delay. If Landlord for any reason cannot deliver possession of the
Premises to Tenant at the Commencement Date, (i) the Commencement Date
shall be the date on which possession of the Premises is delivered to
Tenant, (ii) this Lease shall not be void or voidable, nor shall Landlord
be liable to Tenant for any loss or damage resulting therefrom, (iii) the
Rent Commencement Date shall be delayed to the same extent as the delay in
the Commencement Date, except as provided in Section 4.4, and (iv) the
Expiration Date shall be adjusted so that the length of the Lease Term
remains as provided in Section 1, which shall be confirmed by Landlord's
written notice to Tenant setting forth the adjusted Commencement Date and
Expiration Date.
4.4 Tenant Delay. If Tenant causes any delay in Landlord's completion of the
Premises, thereby delaying Tenant's occupancy of the Premises beyond the
Commencement Date set forth in Section 1, then Landlord may at its option
require Tenant to commence payment of Rent on the Rent Commencement Date
set forth in Section 1 notwithstanding such delay in delivery of
possession.
5. Rent.
5.1 Rent. Tenant shall pay to Landlord the Base Monthly Rent specified in
Section 1 and the Additional Rent as set forth in Section 8 and elsewhere
in this Lease (the Base Monthly Rent and the Additional Rent are
collectively referred to as "Rent"). Rent shall be paid in advance, on or
before the first day of each calendar month of the Lease Term.
5.2 Manner of Payment. Rent shall be paid without prior notice, demand, set
off, counterclaim, deduction or defense and, except as otherwise expressly
provided in this Lease, without abatement or suspension. All Rent shall be
paid to Landlord at the address for notices set forth in Section 1, in
lawful money of the United States of America, or to such other person or at
such other place as Landlord may from time to time designate in writing.
5.3 Rent Commencement. Payment of Rent shall begin on the Rent Commencement
Date set forth in Section 1, subject to Section 4. Rent for any period
during the Lease term that is for less than one month shall be prorated for
the actual number of days in such period.
6. Prepaid Rent and Security Deposit.
6.1 Deposit. Upon execution of this Lease, Tenant shall pay to Landlord the
Prepaid Rent and Security Deposit set forth in Section 1 (the Prepaid Rent
and the Security Deposit collectively, "Deposit").
6.2 Use of Deposit to Cure. Landlord shall have the right to all or any part of
the Deposit to cure any Default by Tenant under this Lease or to compensate
Landlord for any damage sustained by it resulting from such Default. In the
event of any such application of the Deposit, Tenant shall, on demand,
immediately pay to Landlord the amount necessary to replenish the Deposit
to the amount set forth in Section 1.
6.3 Return of Security Deposit. If Tenant is not in Default at the expiration
or termination of this Lease, Landlord shall return the remaining Security
Deposit to Tenant, less any amounts necessary to return the Premises to
their original condition, reasonable wear and tear excepted.
6.4 Treatment as Security Deposit. In the event this Lease is terminated before
the end of the Term for any reason, any Rent paid for any period after the
date of such termination shall be treated as an addition to the Security
Deposit.
6.5 Landlord's Obligation Regarding Deposit. Landlord's obligations with
respect to the Security Deposit are those of a debtor and not a trustee.
Landlord may maintain the security deposit separate from Landlord's general
funds or may commingle the Security Deposit with other funds of Landlord.
No interest shall accrue for Tenant on the Deposit.
7. Use of Premises.
7.1 Use. Tenant shall use the Premises only for the purpose set forth in
Section 1. The Premises may not be used for any other purpose without
Landlord's written consent. Landlord represents to Tenant that the purpose
set forth in Section 1 is permitted as of the date hereof under the
applicable laws, regulations and codes governing zoning, land use and
similar matters affecting the Building and the Property (collectively, the
"Zoning Laws"). Any changes in the Zoning Laws or any changes in Tenant's
use of the Premises that are not permitted under the Zoning Laws will not
be a basis for terminating this Lease, for abating or offsetting Rent or
for otherwise seeking damages.
7.2 Prohibited Uses. Tenant shall not do or permit anything to be done in or
about the Premises or bring or keep anything therein which will in any way
increase the cost of or affect any fire or other insurance upon the
Building or any part thereof or any of its contents, or cause cancellation
of any insurance policy covering the Building or any part thereof or any of
its contents.
7.3 No Nuisance. Tenant shall not do or permit anything to be done in or about
the Premises that will obstruct or interfere with the rights of other
tenants or occupants of the Building or Business Park or injure them or
their property, or use or allow the Premises to be used for any unlawful
purpose or in any way constituting a nuisance. Tenant shall not, without
the prior written consent of Landlord, use any apparatus, machinery or
device in or about the Premises, which will cause any substantial noise or
vibration. Tenant shall not place any boxes, cartons or other rubbish in
the corridors or other Common Areas (defined in Section 10), Building,
Property or Business Park. Tenant shall use due care in the use of the
Premises and of the Common Areas (defined in Section 10), Building Property
or Business Park, and shall not neglect or misuse water fixtures, electric
lights and heating and air-conditioning apparatus.
7.4 Telecommunications Providers. Tenant acknowledges that any provision of
telecommunications, data transmission and office automation services,
equipment and systems by a third party provider, its agents, affiliates and
successors, that has a right, whether exclusive or not, to provide such
services to the Premises, Building or Business Park (each a "Provider") is
entirely separate and distinct from this Lease and that Landlord has no
duty of performance concerning the provision of services by a Provider.
Tenant hereby agrees to look solely to the Provider for any failure in the
provision of services provided by such Provider.
8. Additional Rent for Operating Expenses.
8.1 Tenant Payment. Tenant shall pay, as Additional Rent, Tenant's Share, as
set forth in Section 1, of all Operating Expenses. Tenant's payment of
Additional Rent shall be made in the same manner as Base Monthly Rent.
8.2 Tenant's Share. Tenant's Share shall be the percentage of all Operating
Expenses for the Building set forth in Section 1 as determined by Landlord,
based upon the percentage that the approximate rentable area of the
Premises set forth in Section 1 bears to the approximate rentable area of
the Building.
8.3 Definitions.
8.3.1Definition of Operating Expenses. "Operating Expenses" means all expenses
and charges incurred by Landlord in the operation and maintenance of the
Building, Property and Common Areas (as defined in Section 10), as a
first-class facility, including without limitation the following costs by
way of illustration: (i) all real property taxes, assessments and other
general or special charges levied during the Term by any public,
governmental or quasi-governmental authority against the real or personal
property included in the Building or the Property, including without
limitation Landlord's personal property used in the maintenance, repair or
operation of the Building or the Property, or any other tax on the leasing
of the Building or on the rents from the Building (other than any federal,
state or local income or franchise tax); (ii) any and all assessments
Landlord must pay for the Building or Property pursuant to an applicable
Declaration of Covenants, Conditions, Restrictions and Easements for the
Business Park identified in Section 1 ("CC&Rs"), transportation or any
other improvement monitoring or management plan, or any other covenant,
condition or reciprocal easement agreements; (iii) electricity, gas and
similar energy sources, refuse collection, water, sewer and other utilities
services for the Building and the Property; provided, however, to the
extent that any such services are separately metered to Tenant, Tenant
shall pay the actual separately incurred charges; (iv) annual inspection
fees, property management fees paid to independent or affiliated
contractors or to Landlord, and legal, accounting and other professional
expenses; (v) janitorial, cleaning, window washing and refuse removal; (vi)
all costs of improvements or alterations to the Building, Property and
Common Areas required by Laws, to save labor, or reduce Operating Expenses;
(vii) all premiums and deductibles for liability, property damage,
casualty, automobile, garage keeper's, rental loss compensation or other
insurance maintained by Landlord for the Building or Property; (viii) the
cost of any capital improvements made to the Property, Building or Common
Areas by Landlord for the replacement of any Building equipment needed to
operate the Building or the Common Areas at the same quality levels as
prior to the replacement; (ix) air conditioning, heating, ventilating,
plumbing, electrical system, elevator maintenance supplies, materials,
equipment and tools; (x) the repair of the air conditioning, heating,
ventilating, plumbing, electrical systems and elevators of the Building;
(xi) maintenance costs, including payroll expenses, rental of personal
property used in maintenance and all other upkeep of parking and Common
Areas, including cleaning, snow and ice removal, landscaping and lighting;
(xii) costs and expenses of repairs, resurfacing, repainting, and similar
items, (xiii) costs and expenses associated with security and monitoring;
(xiv) costs incurred in the management of the Building and Property
(including supplies, wages and salaries of employees used in the
management, operation and maintenance thereof and payroll taxes and similar
governmental charges with respect thereto, and Building management office
rental, if any; (xiii) all license and permit fees (xiv) any other expense
or charge whether or not described above that in accordance with generally
accepted accounting and management practices is properly an expense of
maintaining, operating or repairing the Building, Property or Common Areas.
Operating Expenses shall not include depreciation on the Building or
equipment therein, Landlord's executive salaries, real estate brokers'
commissions, and costs or expenses for which Landlord is reimbursed or
indemnified, by an insurer, condemnor, tenant or otherwise. Landlord shall
not collect more than 100% of Operating Expenses and shall not recover any
item of cost more than once. If, in Landlord's reasonable determination,
certain Operating Expenses vary in direct relationship to occupancy of the
Building, Tenant's Share of such Operating Expenses shall be adjusted to
reflect that portion of the whole which the rentable square feet of the
Premises bears to the rentable square footage of the Building, as
applicable, which is actually occupied by tenants.
8.3.2Definition and Treatment of Capital Improvements. As used herein, Capital
Improvement shall mean the replacement of any major component or element of
the Building or Common Areas. The cost of any Capital Improvement included
in Operating Expenses pursuant to this Lease shall be amortized over the
useful life of the Capital Improvement with interest accruing on the
unamortized balance at the prime rate then in effect at the Seattle Head
Office of Bank of America or its successors, or such higher rate as may
have been paid by Landlord on funds borrowed for the purpose of paying for
such Capital Improvement. Subject to Section 12.3, Landlord shall be
responsible at its sole cost and expense for Capital Improvements related
to the repair or replacement of the structural portions of the Building,
which structural portions consist of the foundation, bearing and exterior
walls, subflooring, and roof structure and the cost of such Capital
Improvements shall not be included in Operating Expenses.
8.4 Determination of Operating Expenses. Prior to each January 1 of the Term,
Landlord shall furnish Tenant a written statement of the estimated monthly
Tenant's Share of Operating Expenses for the coming calendar year. The
estimated monthly Tenant's Share of Operating Expenses for the period
before the first January 1 after the Commencement Date is set forth in
Section 1. Landlord may, by written notice to Tenant, revise its estimate
of Tenant's Share of Operating Expenses from time to time.
8.5 Reconciliation. Within 90 days after each January 1 during the Term, or as
soon thereafter as practicable, Landlord shall deliver to Tenant a written
statement setting forth the actual Operating Expenses and Tenant's Share
thereof during the preceding calendar year (or portion of such calendar
year after the Commencement Date). To the extent Tenant's Share of such
actual Operating Expenses exceeded the estimated Tenant's Share thereof
paid by Tenant, Tenant shall pay Additional Rent to Landlord within 30 days
after receipt of such statement by Tenant. To the extent Tenant's Share of
such actual Operating Expenses was less than the estimated Tenant's Share
thereof paid by Tenant, Tenant shall receive a credit against its next
payable Rent or such amount shall otherwise be refunded to Tenant as
Landlord determines in its sole discretion.
8.6 Upon Lease Termination. If this Lease shall expire or otherwise terminate
other than on a December 31, Landlord may in its discretion make a special
determination of Tenant's Share of actual Operating Expenses for the
partial calendar year ending on the date of such expiration or other
termination, or may defer such determination until its usual reconciliation
of Operating Expenses for the Building for the entire calendar year. The
excess actual Tenant's Share for such partial calendar year shall be paid
to Landlord, or the excess estimated Tenant's Share already paid by Tenant,
as the case may be, shall be paid by Tenant to Landlord or Landlord to
Tenant, as the case may be, within 30 days of such determination.
8.7 Landlord Rights. Landlord shall have the same rights with respect to
Tenant's nonpayment of Tenant's Share of Operating Expenses as required
under this Lease as it has with respect to any other nonpayment of Rent
under this Lease.
9. Maintenance and Repair Responsibility.
9.1 Maintenance Obligations. Subject to Sections 7.3, 12.3 and 15, Landlord
shall maintain and keep in good condition and repair throughout the Term
the entire Premises , the Building, and the Common Areas in a manner and at
a level of quality that is consistent with comparable buildings in the area
(the "Maintenance Obligations"). Except as otherwise expressly provided in
this Lease, all cost and expenses incurred by Landlord in performing the
Maintenance Obligations shall be considered Operating Expenses.
9.2 No Obligation For Alteration. Except as specifically provided elsewhere in
this Lease, Landlord shall have no obligation whatsoever to alter, remodel,
improve, repair, decorate, or paint the Premises or any part thereof.
Tenant affirms that Landlord has made no representations to Tenant about
the condition of the Premises or the Building, except as specifically
herein set forth.
9.3 Tenant Waiver. Tenant waives the right to make repairs at Landlord's
expense under any law, statute, or ordinance now or hereafter in effect.
10. Common Areas.
10.1 Use of Common Areas. Provided Tenant is not in Default under the Lease and
subject to the other terms and conditions of this Lease, Tenant shall have
the right to use the Common Areas on a non-exclusive basis with Landlord,
other tenants in the Building and the Business Park and their respective
officers, employees, guests, invitees and agents. Landlord shall have the
right to establish and enforce reasonable rules and regulations applicable
to all tenants concerning the maintenance, management, use, and operation
of the Common Areas; and to make changes to the Common Areas, including
without limitation changes in the location of lobbies, driveways,
entrances, exits, vehicular parking spaces, parking areas, pedestrian and
bicycle trail areas, or the direction of the flow of traffic.
10.2 Definition of Common Areas. In this Lease, "Common Areas," means all parts
of the Building and related land areas and facilities outside the Premises
and the premises leased or available for lease to other tenants, but
constituting a part of Business Park. Common Areas include, without
limitation:
10.2.1 the Building's common entrances, lobbies, restrooms, elevators, stairway
and accessways, loading docks, ramps, drives and platforms and any
passageways and serviceways thereto, and mechanical and electrical systems
for the Building, including without limitation, plumbing, sewage,
electrical systems, pipes conduits, and wires, and appurtenant equipment of
the Building, all to the extent serving the Premises;
10.2.2 the open areas, landscaped areas, sidewalks, pedestrian walkways and
patios, roadways, pedestrian and bicycle trails, driveways, parking areas,
utility systems and facilities, service areas, refuse areas and all other
areas in the Business Park and available for use in common with all
tenants, guests and invitees of the Business Park, located outside the
Premises and the premises leased or available for lease to other tenants in
the Business Park.
11. Utilities and Services.
11.1 Furnishing of Utilities and Services. Provided that Tenant is not in
Default under this Lease, Landlord shall cause to be furnished to the
Premises the following utilities and services, during generally recognized
business hours: (I) electricity for normal lighting and office machines,
(ii) heat and air conditioning required for the comfortable use and
occupation of the Premises.
11.2 Additional Services. The provision and use of such utilities and services
shall be in accordance with any applicable rules and regulations under this
Lease. If Tenant requires or utilizes more water or electrical power than
is considered reasonable or normal by Landlord, Landlord may at its option
require Tenant to pay, as Additional Rent, the cost, as fairly determined
by Landlord, incurred in such extraordinary usage. In addition, Landlord
may install separate meters in accordance with Section 11.4.
11.3 After Hours. At Tenant's request, Landlord shall furnish, at Tenant's
expense, heat and air conditioning outside of generally recognized business
hours, at rates to be established from time to time by Landlord, and to be
paid by Tenant as billed by Landlord.
11.4 Separate Meters. To the extent that the Premises are separately metered or
sub-metered for Tenant's use of any utilities or services, Tenant shall pay
for such use in the same manner as Rent, or shall pay the cost thereof
directly to the service provider, and in either event such charges shall
constitute Additional Rent hereunder.
11.5 Failure. In the event of any failure or interruption of such utilities and
services, Landlord shall diligently attempt to resume service promptly.
Tenant shall not be entitled to any abatement or reduction of Rent by
reason of any failure or interruption of utilities or services, no eviction
of Tenant shall result from any such failure or interruption, and Tenant
shall not be relieved from the performance of any obligation in this Lease
because of such failure or interruption.
12. Limits on Landlord's Liability. Landlord's liability in respect of its
Maintenance Obligations and Service Obligation is subject to the following
limitations:
12.1 Circumstances Beyond Control. Landlord shall not be liable for any failure
of Maintenance Obligations or Service Obligations when such failure is
caused by (i) strikes, lockouts or other labor disturbance or labor dispute
of any character, (ii) governmental regulation, moratorium or other
governmental action, (iii) inability despite the exercise of reasonable
diligence to obtain electricity, water or fuel from the providers thereof,
(iv) acts of God or (v) any other cause beyond Landlord's reasonable
control.
12.2 Unreasonable Period of Failure. Subject to Section 12.1, Landlord shall not
be liable for any failure of Maintenance Obligations or Service
Obligations, unless such failure shall persist for an unreasonable time
after written notice of the need of such repairs or maintenance or of the
interruption of services is given to Landlord by Tenant.
12.3 Tenant Caused. If maintenance and repairs to the Premises, Building or
Common Areas are caused in part or in whole by the act, neglect, fault, or
omission of any duty by Tenant, its agents, servants, employees, or
invitees, Tenant shall pay to Landlord the costs of such maintenance and
repairs.
12.4 No Abatement of Rent. Except as specifically provided in Sections 15 and
16, there shall be no abatement of Rent in any circumstance under this
Lease.
12.5 No Interference. Landlord shall not be liable for any injury to or
interference with Tenant's business arising from the making of any repairs,
alterations, or improvements in or to any portion of the Building, the
Premises, the Property, or the Common Areas, or to fixtures, appurtenances,
and equipment therein, or the failure of Maintenance Obligations or Service
Obligations. Without limiting the generality of this Section 12, in no
event shall Landlord have any liability for consequential damages resulting
from any act or omission of Landlord in respect of its Maintenance
Obligations or Service Obligations, even if Landlord has been advised of
the possibility of such consequential damages.
13. Alterations and Additions by Tenant; Liens and Insolvency.
13.1 Alterations and Additions by Tenant. With the prior written consent of
Landlord, Tenant may make at its expense additional improvements or
alterations to the Premises. Any repairs or new construction by Tenant
shall be done in conformity with plans and specifications approved by
Landlord, by contractors approved by Landlord, (provided, that Landlord may
require that such work be performed by Landlord's employees or
contractor(s) employed by Landlord) and subject to Landlord's reasonable
rules and regulations regarding such construction. All work performed shall
be done lien-free in a workmanlike manner and shall become the property of
Landlord. Landlord may require that Tenant provide to Landlord, at Tenant's
expense, a lien and completion bond in an amount equal to 150% of the
estimated cost of any improvements, additions, or alterations in the
Premises. Landlord shall not unreasonably withhold its consent to Tenant's
proposed alterations or improvements if the conditions of this Section 13
are satisfied. Landlord may require Tenant to remove any improvements or
alterations at the expiration or termination of the Term, such removal to
occur at Tenant's expense; and Tenant shall repair all damage to the
Premises or Building occurring as a result of such removal. In the event
Tenant fails to remove any improvements or alterations as required by
Landlord or repair any damage occurring during such removal, Landlord shall
be entitled to remove any improvements or alterations or make such repairs,
at Tenant's expense, and shall further be entitled to draw upon the
Deposit.
13.2 Liens and Insolvency. Tenant shall keep the Premises, Building and Property
free from any liens arising out of any work performed, materials ordered or
obligations incurred by Tenant. Landlord shall have the right at all
reasonable times to post on the Premises any notices which it deems
necessary for its protection from such liens. If such liens are filed
unless such liens are removed or bonded around to Landlord's satisfaction
within fourteen (14) days of Landlord's notice to Tenant, Landlord may,
without waiving its rights and remedies based on such breach by Tenant and
without releasing Tenant from any of its obligations hereunder, cause such
liens to be released by any means it shall deem proper, including payment
in satisfaction of the claim giving rise to such lien. Tenant shall pay to
Landlord on demand, any reasonable sum paid by Landlord to remove such
liens, together with interest at the rate specified in Section 33.8.
14. Insurance; Indemnity.
14.1 Tenant Waiver. Landlord shall not be liable to Tenant, and Tenant hereby
waives all claims against Landlord, for injury or damage to any person or
property in or about the Premises, Building, Property or Common Areas by or
from any cause whatsoever, including without limitation any acts or
omissions of any other tenants, licensees or invitees of the Building. 14.2
Indemnity. Tenant shall indemnify and defend (using legal counsel
acceptable to Landlord) Landlord and hold Landlord harmless, from and
against any and all loss, cost, damage, liability and expense (including
reasonable attorneys' fees) whatsoever that may arise out of or in
connection with Tenant's occupation, use or improvement of the Premises, or
that of its employees, agents or contractors, or Tenant's breach of its
obligations under this Lease. To the extent necessary to fully indemnify
Landlord from claims made by Tenant or its employees, this indemnity
constitutes a waiver of Tenant's immunity under the Washington Industrial
Insurance Act, RCW Title 51. This indemnity shall survive the expiration or
termination of the Term.
14.3 Landlord's Responsibility. The exculpation, release and indemnity
provisions of Sections 14.1 and 14.2 shall not apply to the extent the
subject claims thereunder were caused by Landlord's gross negligence or
willful misconduct. However, in no event shall Landlord be liable to Tenant
for consequential damages.
14.4 Tenant's Insurance. Tenant shall procure and maintain throughout the Term
at Tenant's expense, the following insurance:
14.4.1 Comprehensive general public liability insurance, insuring Tenant against
liability arising out of the Lease and the use, occupancy, or maintenance
of the Premises and all areas appurtenant thereto. Such insurance shall be
in the amount of not less than $2,000,000 combined single limit for injury
to or death of one or more persons in an occurrence, and for damage to
tangible property (including loss of use) in an occurrence (or in such
amount as Landlord determines in its reasonable discretion). Such policy
shall insure the operations of independent contractors and contractual
liability (covering the indemnity in Section 14.2) and shall: (i) name
Landlord as an additional insured, and (ii) provide that it is primary and
noncontributing with any insurance in force or on behalf of Landlord.
14.4.2 Standard form property insurance insuring against the perils of fire,
extended coverage, vandalism, malicious mischief, special extended coverage
("All-Risk") and sprinkler leakage. This insurance policy shall be upon all
personal property for which Tenant is legally liable or that was installed
at Tenant's expense, and that is located in the Building or Premises,
including without limitation all Tenant's furnishings, fixtures, furniture,
fittings, and equipment and all improvements to the Premises installed by
Tenant, in an amount not less than 90% of the full replacement cost
thereof. In the event of a dispute as to the amount of full replacement
cost, the decision of Landlord or any mortgagees of Landlord shall be
conclusive. Such policy shall also include business interruption coverage,
covering direct and indirect loss of Tenant's earnings attributable to
Tenant's inability to use fully or obtain access to the Premises or
Building, in an amount as will properly reimburse Tenant. Such policy shall
name Landlord and any mortgagees of Landlord as insured parties, as their
respective interests may appear.
14.4.3 Xxxxxxx'x Compensation and Employer's Liability Insurance (as required by
state law).
14.4.4 Any other form or forms of insurance as Tenant or Landlord or any
mortgagees of Landlord may reasonably require from time to time in form, in
amounts and for insurance risks against which a prudent tenant would
protect itself.
14.5 Policies. All policies of insurance to be obtained by Tenant hereunder
shall be in a form satisfactory to Landlord and shall be issued by
insurance companies holding a General Policyholder Rating of "A" and a
Financial Rating of "X" or better in the most current issue of Best's
Insurance Guide. Tenant shall provide Landlord with certificates of such
insurance. No such policy shall be cancelable or reducible in coverage
except after 30 days' prior written notice to Landlord. Tenant shall,
within ten days prior to the expiration of such policies, furnish Landlord
with renewals or "binders" thereof, or Landlord may order such insurance
and charge the cost thereof to Tenant as Additional Rent.
14.6 Landlord's Insurance. Landlord shall maintain liability and casualty
insurance for the Building and Property adequate in Landlord's judgment to
cover (with deductibles deemed appropriate by Landlord) the risks
customarily insured against by owners of properties similar to the
Building.
14.7 Proceeds. The proceeds of any insurance policies maintained by or for the
benefit of Landlord shall belong to and be paid over to Landlord. Any
interest or right of Tenant in any such proceeds shall be subject to
Landlord's interest and right in such proceeds.
14.8 Waiver of Subrogation. Anything in this Lease to the contrary
notwithstanding, Tenant and Landlord each waives its entire right of
recovery, claims, actions, or causes of action against the other for loss
or damage to the Premises, Building, or Property or any personal property
of such party therein that is caused by or incident to the perils covered
by normal extended coverage clauses of standard fire insurance policies
carried by the waiving party and in force at the time of damage or loss.
Tenant and Landlord each waives any right of subrogation it may have
against the other party to the extent of recovery under any such insurance,
and shall cause each insurance policy obtained by it to provide that the
insurance company waives all right to recovery by way of subrogation
against the other party in connection with any such loss or damage. If
either Landlord or Tenant is unable to obtain its insurer's permission to
waive any claim against the other party, such party shall promptly notify
the other party of such inability.
14.9 Notification of Accidents. Tenant shall promptly notify Landlord of any
casualty or accident occurring in or about the Premises.
15. Destruction.
15.1 Election to Restore. If the Premises or the Building is destroyed by fire,
earthquake, or other casualty to the extent that they are untenantable in
whole or in part, then Landlord shall have the right but not the obligation
to proceed with reasonable diligence to rebuild and restore the Premises or
the Building or such part thereof. Landlord shall within 30 days after such
destruction or injury notify Tenant whether Landlord intends to rebuild. If
Landlord fails to notify Tenant within such period, then this Lease shall
terminate as of the end of such period.
15.2 Rent Abatement. During the period from destruction or damage until
restoration (or termination of this Lease), Rent shall be abated in the
same ratio as that portion of the Premises which Landlord determines is
unfit for occupancy shall bear to the whole Premises. If damage is due to
the fault or neglect of Tenant or its agents, employees, invitees, or
licensees, there shall be no abatement of Rent.
15.3 Repairs to Tenant Installations. Landlord shall not be required to repair
any injury or damage by fire or other cause, or to make any repairs or
replacements of any panels, decoration, office fixtures, paintings, floor
covering, or any other improvements to the Premises installed by Tenant.
Instead, if Landlord repairs or rebuilds the Premises under this Section
15, Tenant shall repair or rebuild such Tenant-installed improvements and
other items of property
15.4 No Compensation. Tenant shall not be entitled to any compensation or
damages from Landlord for loss of the use of the whole or any part of the
Premises, the property of Tenant, or any inconvenience or annoyance
occasioned by such damage, repair, reconstruction, or restoration.
16. Condemnation.
16.1 Termination of Lease. If all or part of the Premises are taken under power
of eminent domain, or sold under the threat of the exercise of said power,
this Lease shall terminate as to the part so taken as of the date the
condemning authority takes possession.
16.2 Election of Termination. If more than 25% of the floor area of Premises is
taken by condemnation, Landlord or Tenant may, by written notice to the
other within ten days after notice of such taking, terminate this Lease as
to the remainder of the Premises as of the date the condemning authority
takes possession.
16.3 Reduction of Rent. If Landlord or Tenant does not so terminate, this Lease
shall remain in effect as to such remainder, except that the Rent shall be
reduced in the proportion that the rentable floor area taken bears to the
original rentable total floor area. However, if circumstances make
abatement based on floor area unreasonable, the Rent shall xxxxx by a
reasonable amount to be determined by Landlord. In the event that neither
Landlord nor Tenant elects to terminate this Lease, Landlord's
responsibility to restore the remainder of the Premises shall be limited to
the amount of any condemnation award allocable to the Premises, as
determined by Landlord.
16.4 Award. Any award for the taking of all or part of the Premises under the
power of eminent domain, including payment made under threat of the
exercise of such power, shall be the property of Landlord, whether made as
compensation for diminution in value of the leasehold or for the taking of
the fee or as severance damages. Tenant shall only be entitled to such
compensation as may be separately awarded or recoverable by Tenant in
Tenant's own right for the loss of or damage to improvements to the
Premises installed by Tenant, for Tenant's trade fixtures and removable
personal property and for Tenant's relocation or moving expenses. Landlord
shall not be liable to Tenant for the loss of the use of all or any part of
the Premises taken by condemnation.
16.5 Landlord Authority. Landlord shall have the exclusive authority to grant
possession and use to the condemning authority and to negotiate and settle
all issues of just compensation or, in the alternative, to conduct
litigation concerning such issues; provided, however, that Landlord shall
not enter into any settlement of any separate award that may be made to
Tenant as described in Section 16.4 without Tenant's prior approval of such
settlement, which approval shall not be unreasonably withheld.
17. Assignment and Subletting.
17.1 Landlord Consent Required. Tenant shall not assign this Lease, or sublet
the Premises or any part thereof, either by operation of law or otherwise,
or permit any other party to occupy all or any part of the Premises,
without first obtaining the written consent of Landlord. Tenant shall
propose such assignment or sublease by written notice to Landlord, and such
notice shall specify an effective date which shall be the first day of a
calendar month and shall be not less than 60 days after the date of such
notice. This Lease shall not be assignable by operation of law. Tenant
shall further provide to Landlord other information and creditworthiness
materials concerning any proposed assignee or sublessee as is requested by
Landlord. Landlord's consent to a proposed assignment or sublease may be
withheld or granted in Landlord's absolute discretion.
17.2 Deemed Assignment. If Tenant is a corporation, any transfer of this Lease
from Tenant by merger, consolidation, or liquidation, or any change in the
ownership of or power to vote 50% or more of the outstanding voting stock
of Tenant shall constitute an assignment under this Lease. If Tenant is a
partnership or limited liability company, any change in the identity or
majority ownership of partners or members in Tenant serving as general
partner or manager or owning 50% or more of the outstanding economic
interests in such entity shall constitute an assignment under this Lease.
The provisions of this Section 17.2 shall not apply if Tenant's stock is
listed on a recognized security exchange or if at least eighty percent
(80%) of its stock is owned by a corporation whose stock is listed on a
recognized security exchange.
17.3 Recapture. In the alternative to consenting to a proposed assignment or
sublease, Landlord shall have the right to recapture the Premises, or
applicable portion thereof. Landlord may exercise such right by notice to
Tenant within 20 days after receipt of Tenant's notice. Such recapture
shall terminate this Lease as to the applicable portion of the Premises
effective on the effective date proposed in Tenant's notice.
17.4 Additional Requirements. If Landlord elects not to recapture and thereafter
elects to gives its consent to the proposed assignment or sublease, (i)
Landlord may charge Tenant a reasonable sum to reimburse Landlord for legal
and administrative costs incurred in connection with such consent; (ii) in
the event of a sublease, Landlord and Tenant shall share equally in any
rent and other proceeds paid to Tenant in excess of the Rent to be paid to
Landlord under this Lease; and (iii) in the event of an assignment or a
sublease, Tenant shall remain liable to Landlord for the performance of all
of Tenant's obligations under this Lease.
17.5 Assignment with Bankruptcy. If this Lease is assigned pursuant to the
provisions of the Revised Bankruptcy Act, 11 U.S.C. Section 101 et seq.,
any and all consideration paid or payable in connection with such
assignment shall be Landlord's exclusive property and paid or delivered to
Landlord, and shall not constitute the property of tenant or tenant's
estate in bankruptcy. Any person or entity to whom the Lease is assigned
pursuant to the Revised Bankruptcy Act shall be deemed automatically to
have assumed all of Tenant's obligations under this Lease.
17.6 Sale. In the event of any sale of the Building or Property, or any
assignment of this Lease by Landlord, Landlord shall be relieved of all
liability under this Lease arising out of any act, occurrence, or omission
occurring after sale or assignment; and the purchaser or assignee at such
sale or assignment or any subsequent sale or assignment of Lease, the
Property, or Building, shall be
deemed without any further agreement to have assumed all of the obligations
of the Landlord under this Lease accruing after the date of such sale or
assignment.
17.7 Binding. Subject to the provisions of this Section 17, this Lease shall be
binding upon and inure to the benefit of the parties, their heirs,
successors and assigns.
18. Default.
18.1 Definition of Default. The occurrence of any one or more of the following
events shall constitute a material default and breach of the Lease by
Tenant ("Default"):
18.1.1 vacation or abandonment of all or any portion of the Premises;
18.1.2 failure by Tenant to make any payment required as and when due, where
such failure shall continue after three days' written notice from Landlord;
18.1.3 failure by Tenant to observe or perform any of the covenants, conditions,
or provisions of this Lease, other than the making of any payment, where
such failure shall continue after 30 days' written notice from Landlord; or
(i) the making by Tenant of any general assignment or general arrangement for
the benefit of creditors; (ii) the filing by or against Tenant of a petition in
bankruptcy, including reorganization or arrangement, unless, in the case of a
petition filed against Tenant, the same is dismissed within 30 days; (iii) the
appointment of a trustee or receiver to take possession of substantially all of
Tenant's assets located at the Premises or of Tenant's interest in this Lease;
(iv) the seizure by any department of any government or any officer thereof of
the business or property of Tenant; and (v) adjudication that Tenant is
bankrupt.
Notwithstanding anything herein to the contrary, if Landlord serves Tenant with
three (3) default notices in any twelve-(12) month period, Landlord shall have
the right to terminate this Lease without providing Tenant with any cure period.
18.2 Tenant Notification. Tenant shall notify Landlord promptly of any Default
by Tenant (or event or occurrence which, with the passage of time, the
giving of notice, or both, would become a Default) that by its nature is
not necessarily known to Landlord.
18.3 Landlord Default. Landlord shall be in default if it fails to observe or
perform any of the covenants, conditions, or provisions of this Lease,
where such failure shall continue after 30 days' written notice from
Tenant; provided, however, that if the nature of Landlord's obligation is
such that more than 30 days are required for performance, Landlord shall
not be in default if Landlord commences performance within 30 days after
Tenant's notice and thereafter completes such performance diligently and
within a reasonable time. Tenant shall copy Landlord's lender with any such
notice of default, if Tenant has been provided with the name and address of
any such lender. In no event shall a default by Landlord under this Lease
give rise to any right of Tenant to terminate this Lease or withhold or
offset the payment of Base Monthly Rent or Additional Rent. The obligations
of Tenant to pay Base Monthly Rent and Additional Rent shall continue
unaffected in all events unless suspended or terminated pursuant to an
express provision of this Lease.
18.4 Rental Concession. If Tenant was not obligated to pay Base Monthly Rent or
Additional Rent for any period of time after the Commencement Date ("Rental
Concession"), any such Rental Concession shall be canceled if Tenant is in
Default at any time during the Term. In the event of such cancellation,
Tenant shall be obligated to pay Base Monthly Rent and/or Additional Rent,
as the case may be, as though there were no Rental Concession in the Lease,
and Tenant shall promptly on demand refund to Landlord the amount of any
Rental Concession already taken, without regard to whether this Lease is
terminated by Landlord as a result of Tenant's Default.
19. Remedies in Default.
19.1 Landlord Remedies. In the event of any Default by Tenant, Landlord may, at
any time without waiving or limiting any other right or remedy, do any one
or more of the following: (i) re-enter and take possession of the Premises
without terminating this Lease, or (ii) terminate this Lease, and (iii)
pursue any remedy allowed by law or equity.
19.2 Tenant Payment of Costs. Whether Landlord has elected to terminate this
Lease or not, Tenant agrees to pay Landlord the cost of recovering
possession of the Premises, the expenses of reletting, and any other costs
or damages arising out of Tenant's Default, including without limitation
the costs of removing persons and property from the Premises, the costs of
preparing or altering the Premises for reletting, broker's commissions, and
attorneys' fees.
19.3 Termination. In the event Landlord elects to terminate this Lease, Landlord
shall be additionally entitled to recover from Tenant: (i) the award by a
court having jurisdiction thereof of the amount by which the unpaid rent
and other charges and adjustments
called for herein for the balance of the term after the time of such award
exceeds the amount of such loss for the same period that Tenant proves
could be reasonably avoided and (ii) that portion of any leasing commission
and Tenant Improvements costs paid by Landlord applicable to the unexpired
term of the Lease.
19.4 No Termination. No re-entry or taking possession of the Premises by
Landlord pursuant to this Section 19, or acceptance of Tenant's keys to or
surrender of the Premises shall be construed as an election to terminate
this Lease unless a written notice of such intention is given to Tenant.
Notwithstanding any reentry or termination, the liability of Tenant for the
Rent shall continue for the balance of the Term, and Tenant shall make good
to Landlord any deficiency arising from reletting the Premises at a lesser
rent than the Rent provided for in this Lease. Tenant shall pay such
deficiency each month as the amount thereof is ascertained by Landlord.
19.5 Landlord Election to Make Tenant Advances. If Tenant shall fail to pay any
sum of money owed to any party other than Landlord, for which Tenant is
liable under this Lease, or if Tenant shall fail to perform any other act
on its part to be performed hereunder, and such failure continues for a
period of ten days after notice thereof by Landlord, Landlord may, without
waiving or releasing Tenant from its obligations or waiving or releasing
any rights that Landlord may have, make any such payment or perform any
other act to be made or performed by Tenant. All sums so paid by Landlord
and all necessary incidental costs, together with interest thereon at the
rate established in Section 33.8, from the date of such payment by
Landlord, shall be deemed Additional Rent and shall be paid to Landlord on
demand.
20. Access. Tenant shall permit Landlord to enter the Premises at all
reasonable times for the purpose of inspecting, altering, and repairing the
Premises and the Building and ascertaining compliance with the provisions
of this Lease by Tenant. The existence or exercise of such right of access
shall not be construed as imposing any obligation on Landlord to inspect,
discover or correct or repair any condition in the Premises or the
Building. Landlord may also show the Premises to prospective purchasers or
tenants at reasonable times, provided that Landlord shall not materially
interfere with Tenant's business operation. 21. Surrender of Premises;
Hold-Over Tenancy. ---------------------------------------- 21.1 Surrender
of Premises. Upon the expiration or sooner termination of this Lease,
Tenant shall surrender the Premises and all the additions and alterations
thereto, and leave the Premises broom clean and in good order and condition
and repair, excluding ordinary wear and tear.
21.2 Hold-Over Tenancy. If without execution of a new Lease or written extension
Tenant shall hold over after the expiration or termination of the Term,
with Landlord's written consent, Tenant shall be deemed to be occupying the
Premises as a Tenant from month to month, which tenancy may be terminated
as provided by law, unless the parties agree otherwise at the time of
Landlord's consent. If Tenant shall hold over after expiration or
termination of the Term without Landlord's written consent, the Base
Monthly Rent payable shall be 200% of the Base Monthly Rent payable in the
last month prior to expiration or termination of the Term, and Tenant shall
continue to pay Additional Rent. During any such tenancy, Tenant shall
continue to be bound by all of the terms, covenants, and conditions of this
Lease, insofar as applicable.
22. Compliance with Law. Tenant shall not use the Premises or permit anything
to be done in or about the Premises which will in any way conflict with any
applicable law, statute, ordinance, or governmental rule or regulation, now
or hereafter in force ("Laws"). Tenant shall at its sole cost and expense
promptly comply with all Laws, including without limitation the Americans
with Disabilities Act, and with the requirements of any board of fire
insurance underwriters or other similar bodies now or hereafter
constituted, relating to, or affecting the use or occupancy of the
Premises. The judgment of any court of competent jurisdiction, or the
admission of Tenant in any action, whether Landlord be a party thereto or
not, that Tenant has violated any Laws, shall be conclusive of the fact as
between Landlord and Tenant. 23. Rules and Regulations. Tenant shall
faithfully observe and comply with the rules and regulations that Landlord
shall from time to time promulgate and with the CC&Rs and any other
restrictive covenants and obligations created by private contracts which
affect the use and operation of the Premises, Building Common Areas or
Business Park, now or hereafter in force. All such rules and regulations
shall be non-discriminatory and reasonable and shall be uniformly and
consistently enforced against all tenants in the Building. Additions and
modifications to rules and regulations shall be binding on Tenant upon
delivery of a copy of them to Tenant. Landlord shall not be responsible to
Tenant for the nonperformance of any rules or regulations by any other
tenants or occupants of the Building. 24. Parking. Tenant shall have the
right to use, on a first-come, first served basis, in common with other
tenants and occupants ------- of the Building and Business Park, up to the
number of parking stalls specified in Section 1, located within the
Building or the Business Park and which shall be available for use by all
tenants of the Business Park, their guests and invitees, but which may, at
Landlord's election, be designated by Landlord, (which designated parking
facilities Landlord may change at any time and from time to time in its
sole discretion), subject to the rules and regulations and any charges that
may be established or altered for such parking facilities from time to
time. Tenant shall comply with any and all private and governmentally
imposed parking restrictions applicable to the Business
Park, including without limitation, the requirements of all designations
placed on parking stalls within the Business Park, such as car pool,
visitor and designation for any tenant of the Business Park.
25. Estoppel Certificates. Tenant shall execute, within ten business days
following Landlord's request, a certificate in such reasonable form as may
be required by Landlord or a prospective purchaser, mortgagee or trust deed
beneficiary, or Landlord's successor after a sale or foreclosure,
certifying: (i) the Commencement Date of this Lease, (ii) that the Lease is
unmodified and in full force and effect, (or if there have been
modifications hereto, that this Lease is in full force and effect, and
stating the date and nature of such modifications); (iii) that there have
been no current defaults under this Lease by either Landlord or Tenant
except as specified in Tenant's statement, (iv) the dates to which the Base
Monthly Rent, Additional Rent and other charges have been paid, and (v) any
other information reasonably requested by the requesting party. Such
certificate may be relied upon by Landlord and/or such other requesting
party. Tenant's failure to deliver such statement within such time shall be
conclusive upon Tenant that this Lease is in full force and effect, without
modification except to the extent represented by Landlord, that there are
no uncured defaults in Landlord's performance under this Lease, and that
not more than one month's Rent has been paid in advance. Tenant's failure
to deliver said statement within ten business days of request, shall
constitute Tenant's Default.
26. Subordination. Tenant agrees that this Lease shall be subordinate to the
lien of any mortgage, deeds of trust, or ground leases now or hereafter
placed against the Property or Building, and to all renewals and
modifications, supplements, consolidations, and extensions thereof.
Notwithstanding the foregoing, Landlord reserves the right, however, to
subordinate or cause to be subordinated any such mortgage, deed of trust or
ground lease to this Lease. Upon a foreclosure or conveyance in lieu of
foreclosure under such mortgage or deed of trust, or a termination of such
ground lease, and a demand by Landlord's successor, Tenant shall attorn to
and recognize such successor as Landlord under this Lease; provided,
however, that Landlord shall obtain for the Term of this Lease what is
commonly known as a "nondisturbance" agreement which is intended to protect
Tenant's right to possession under this Lease for so long as Tenant
complies with the terms of this Lease and which shall be in such standard
form and substance as the lender or ground lessor at that time typically
provides to comparable tenants. Landlord shall use reasonable efforts to
obtain modifications to such standard nondisturbance agreements as Tenant
may reasonably request. Tenant shall execute and deliver on request and in
the form requested by Landlord, any instruments reasonably necessary or
appropriate to evidence, effect or confirm such subordination.
27. Removal of Property. On expiration or other termination of this Lease,
Tenant shall remove (i) all personal property of Tenant on the Premises,
including without limitation all Tenant's furnishings, fixtures, furniture,
fittings, cabling, wiring and equipment; (ii) all improvements to the
Premises installed by or at the expense of Tenant other than such
improvements as have become the property of Landlord under Section 13; and
(iii) at Landlord's request, all non-standard or specialty improvements
made to the Premises by Landlord or Tenant. Tenant shall repair or
reimburse Landlord for the cost of repairing any damage to the Premises
resulting from the installation or removal of such property of Tenant. All
property of Tenant remaining on the Premises after reentry or termination
of this Lease shall conclusively be deemed abandoned and may be removed by
Landlord. The cost of removal of such property shall be reimbursed by
Tenant to Landlord upon demand, including, but not limited to court costs,
reasonable attorneys' fees and storage and disposal charges relating to
such property. Landlord may store such property of Tenant in any place
selected by Landlord, including but not limited to a public warehouse, at
the expense and risk of the owner thereof, with the right to sell such
stored property without notice to Tenant. The proceeds of such sale shall
be applied first to the cost of such sale, second to the payment of the
cost of removal and storage, if any, and third to the payment of any other
amounts that may then be due from Tenant to Landlord under this Lease, and
any balance shall be paid to Tenant.
28. Personal Property Taxes. Tenant shall pay prior to delinquency all personal
property taxes payable with respect to all property of Tenant located on
the Premises or the Building and promptly upon request of Landlord shall
provide satisfactory evidence of such payment. "Personal property taxes"
under this Section 28 shall include all property taxes assessed against the
property of Tenant, whether assessed as real or personal property.
29. Notices. All notices under this Lease shall be in writing. Notices shall be
effective (i) when mailed by certified mail, return receipt requested (ii)
when personally delivered, or (iii) when sent by fax, in each case to the
address or fax number of the receiving party set forth in Section 1. Either
party may change its address and fax number for notices by notice to the
other from time to time.
30. Condition of Premises. By taking possession of the Premises, Tenant accepts
the Premises as being in good, sanitary order, condition and repair, and
further accepts all aspects of the Premises, Building, Property and
Business Park in their present condition, AS IS, including latent defects,
without any representations or warranties, express or implied, from
Landlord.
31. Hazardous Substances.
31.1 Tenant Obligations. Tenant shall not, without first obtaining Landlord's
prior written approval, generate, release, store, deposit, transport, or
dispose of (collectively "Release") any hazardous substances, sewage,
petroleum products, hazardous materials, toxic substances or any pollutants
or substances, defined as hazardous or toxic in applicable federal, state
and local laws and regulations ("Hazardous Substances") in, on or about the
Premises. In the event, and only in the event, Landlord approves such
Release of Hazardous Substances on the Premises, such Release shall occur
safely and in compliance with all applicable federal, state, and local laws
and regulations.
31.2 Tenant Indemnity. Tenant shall indemnify and defend (with counsel approved
by Landlord) Landlord, and hold Landlord harmless, from and against any and
all claims, liabilities, losses, damages, cleanup costs, and expenses
(including reasonable attorneys' fees) arising out of or in any way
relating to the Release by Tenant or any of its agents, representatives,
employees or invitees, or the presence of any Hazardous Substances in, on
or about the Premises occurring as a result of or in connection with
Tenant's use or occupancy of the Premises at any time after the
Commencement Date.
31.3 Landlord Inspection. Landlord shall have the right from time to time to
enter the Premises, Building and Property and inspect the same for the
presence of Hazardous Substances and compliance with the provisions of this
Section 31 and inspect the Premises, Building and Property. Landlord may
cause tests to be performed for Hazardous Substances on the Premises from
time to time. Tenant shall bear the cost of the first such test in any
calendar year and any other such test that occurs upon a reasonable
suspicion by Landlord that there may be Hazardous Substances in the
Premises in violation of Tenant's obligations under this Lease.
31.4 Survival. The provisions of this Section 31 shall survive the expiration or
termination of this Lease with respect to any occurrences during the Term.
32. Signs. Tenant shall not place upon or install in windows or other openings
or exterior sides of doors or walls of the Premises any symbols, drapes, or
other materials without the written consent of Landlord. Tenant shall
observe and comply with the requirements of all Laws applicable to signage.
33. General Provisions.
31.1 Attorneys' Fees. In the event Landlord reasonably requires the services of
any attorney in connection with any Default or violation by Tenant of the
terms of this Lease or the exercise by Landlord of its remedies for any
Default by Tenant under this lease, or a request by Tenant for Landlord's
waiver of any terms of this Lease or extension of time to perform or pay
any obligation of Tenant under this Lease, Tenant shall promptly on demand
reimburse Landlord for its reasonable attorneys' fees incurred in such
instance. In the event of any litigation, arbitration or other proceeding
(including proceedings in bankruptcy and probate and on appeal) brought to
enforce or interpret or other wise arising under this Lease, the
substantially prevailing party therein shall be entitled to the award of
its reasonable attorneys' fees, witness fees, and court costs incurred
therein and in preparation therefor.
31.2 Governing Law; Venue. This Lease shall be governed by and construed in
accordance with the laws of the State of Washington and venue for all
disputes shall be in King County, Washington.
31.3 Cumulative Remedies. No remedy or election under this Lease shall be deemed
exclusive but shall, wherever possible, be cumulative with all other
remedies at law or in equity.
31.4 Exhibits; Addenda. Exhibits and Addenda, if any, affixed to this Lease are
a part of and incorporated into this Lease.
31.5 Interpretation. This Lease has been submitted to the scrutiny of all
parties hereto and their counsel, if desired, and shall be given a fair and
reasonable interpretation in accordance with the words hereof, without
consideration or weight being given to its having been drafted by any party
hereto or its counsel.
31.6 Joint Obligation. If there is more than one Tenant under this Lease, the
obligations hereunder imposed upon Tenants shall be joint and several.
31.7 Keys. Upon expiration or termination of this Lease, Tenant shall surrender
all keys to the Premises to Landlord at the place then fixed for payment of
Rent and shall inform Landlord of all combination locks, safes, and vaults,
if any, in the Premises.
31.8 Late Charges; Interest. Late payment by Tenant to Landlord of Rent or other
sums due under this Lease will cause Landlord to incur costs not
contemplated by this Lease, the exact amount of which would be difficult
and impractical to ascertain. Such costs include without limitation
processing and accounting charges and late charges which may be imposed on
Landlord by the terms of any mortgage or trust deed covering the Premises.
Accordingly, Tenant shall pay to Landlord as Additional Rent a late charge
equal to five
percent of such installment as liquidated damages for such late payment,
other than for time value damages. A $50.00 charge will be paid by Tenant
to Landlord for each returned check. In addition, any Rent or other sums
due under this Lease to Landlord that is not paid when due shall bear
interest at the rate per annum of two percent over the prime rate in effect
at Bank of America d/b/a Seattle-First National Bank, Seattle Head Office,
on the day such Rent or other sum was due, which interest shall constitute
Additional Rent under this Lease. The existence or payment of charges and
interest under this Section shall not cure or limit Landlord's remedies for
any Default by Tenant under this Lease.
31.9 Light, Air, and View. Landlord does not guarantee the continued present
status of light, air, or view in, to or from the Premises.
31.10Measurements. All measurements of the Premises stated in this Lease, even
if approximations, shall govern and control over any actual measurement of
the Premises and reflect the inclusion of a load factor for the Building.
The Rent provided in this Lease and Tenant's Share shall not be modified or
changed by reason of any measurement or re-measurement of the Premises that
may occur after the date of this Lease, and is agreed by Landlord and
Tenant to constitute the negotiated rent for the Premises. The foregoing
shall not be deemed to modify any obligation of Landlord to construct the
Premises in accordance with the Work Letter.
31.11Name. Tenant shall not use the name of the Building or Business Park for
any purpose other than as an address of the business conducted by the
Tenant in the Premises. The name of the Building or Business Park may at
any time be changed by Landlord.
31.12Prior Agreements; Amendments. This Lease is the full, final and complete
expression of the agreements of the parties with respect to any matter
covered or mentioned in this Lease, and no prior agreements or
understandings, promises or representations, oral or otherwise, pertaining
to any such matters shall be effective for any purpose. No provision of
this Lease may be amended or added to except by an agreement in writing
signed by the parties or their respective successors in interest. This
Lease shall not be effective or binding on any party until fully executed
by both parties hereto.
31.13Recordation. Tenant shall not record this Lease or a short form memorandum
of this Lease without the prior written consent of Landlord.
31.14Liability. Tenant agrees to look only to the equity of Landlord in the
Building and Property and not to Landlord personally with respect to any
obligations or payments due or which may become due from Landlord
hereunder, and no other property or assets of Landlord or any partners,
officers, directors, of Landlord shall be personally liable in connection
with this Lease..
31.15Severability. That any provision of this Lease is invalid, void, or
illegal shall in no way affect, impair, or invalidate any other provision
of this Lease and such other provision shall remain in full force and
effect.
31.16 Time. Time is of the essence of this Lease and each of its provisions.
31.17Waiver. No provision of this Lease shall be deemed to have been waived by
Landlord unless such waiver is in writing signed by Landlord's duly
authorized representatives. The waiver by either party of any provision of
this Lease shall not be deemed to be a waiver of such provision or any
other provision, in any subsequent instance. The acceptance of Rent by
Landlord shall not be deemed to be a waiver of any preceding Default or
breach by Tenant under this Lease, whether known or unknown to Landlord,
other than the failure of the Tenant to pay the particular Rent so
accepted.
31.18No Waste. Tenant shall not commit or suffer to be committed any waste,
damage or nuisance in or upon the Premises.
31.19Force Majeure. If either party shall be prevented or delayed from
punctually performing any obligation or satisfying any condition under this
Lease, other than the payment of Rent or other sums due hereunder, by any
strike, lockout, labor dispute, inability to obtain labor or materials or
reasonable substitutes therefor, acts of God, governmental restriction,
regulation or control, enemy or hostile governmental action, civil
commotion, insurrection, sabotage, fire or other casualty, or any other
condition beyond the reasonable control of such party, then the time to
perform such obligation or satisfy such condition shall be extended by the
delay cause by, such event. If either party shall, as a result of any such
event, be unable to exercise any right or option within any time limit
provided therefor in this Lease, such time limit shall be deemed extended
for a period equal to the duration of the delay caused by such event.
31.20Quiet Enjoyment. Provided Tenant observes its obligations under this
Lease, its quiet enjoyment of the Premises throughout the Term shall not be
disturbed.
31.21Building Planning. In the event Landlord requires the Premises for use in
conjunction with another suite or for other reasonable connected with the
Building planning program, upon notifying Tenant in writing, Landlord shall
have the right to move Tenant to other space in the Building of which the
Premises form a part, at Landlord's sole cost and expense, and the terms
and conditions of the original Lease shall remain in full force and effect,
save and excepting that a revised Exhibit A shall become part of
the Lease and shall reflect the location of the new space and Section 1 of
this Lease shall be amended to include and state all correct data as to the
new space. However, if the new space does not meet with Tenant's approval,
Tenant shall have the right to cancel this Lease upon giving Landlord
thirty (30) days' notice within ten (10) days of receipt of Landlord's
notification. If Tenant cancels this Lease pursuant to this Section, Tenant
shall vacate the Building and the Premises within thirty (30) days of its
delivery to Landlord of the notice of cancellation.
34. Authority of Tenant.
34.1 Tenant as Corporation. If Tenant is a corporation, each individual
executing this Lease on behalf of Tenant represents and warrants that (s)he
is duly authorized by all necessary action of the directors of Tenant to
execute and deliver this Lease on behalf of Tenant, and that this Lease is
binding upon Tenant in accordance with its terms.
34.2 Tenant as Partnership or LLC. If Tenant is a partnership or limited
liability company, each individual executing this Lease on behalf of Tenant
represents and warrants that (s)he is duly authorized in accordance with
Tenant's partnership agreement or limited liability company agreement by
all necessary action of the partners or members or managers of Tenant to
execute and deliver this Lease on behalf of Tenant, and, and that this
Lease is binding upon Tenant in accordance with its terms.
35. Financial Statements. Tenant shall furnish to Landlord from time to time,
within 30 days of request, Tenant's most recent financial statements,
including at a minimum a balance sheet, income statement and statement of
changes in financial condition, or the equivalent, dated as of and for a
period ending not more than one quarter prior to the date of delivery. Such
statements shall be in the form furnished to Tenant's principal lender
and/or to Tenant's shareholders or other owners, but at a minimum shall be
reviewed or compiled by an independent certified public accountant. Tenant
shall accompany such statements with a certificate of its chief financial
officer that the statements fairly present the financial condition and
results of operations of Tenant as of and for the period ending on the date
of such statements. Landlord shall not request financial statements under
this Section more than once each calendar year.
36. Commissions. Any commissions payable as a result of the execution of this
Lease shall be paid pursuant to a separate commission contract. Each party
represents and warrants to the other that it has not had dealings with any
real estate broker other than the Broker identified in Section 1, agent or
salesperson with respect to this Lease that would cause the other party to
have any liability for any commissions or other compensation to such
broker, agent or salesperson, and that no such broker, agent or salesperson
has asserted any claim or right to any such commission or other
compensation. Such representing party shall defend and indemnify the other
party and hold the other party harmless from and against any and all loss,
cost, liability, damage and expense (including reasonable attorneys' fees)
whatsoever that may arise out of the breach of such representation and
warranty.
EXECUTED the day and year above written.
LANDLORD:
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RAZORE LAND COMPANY
By: /s/ Xxxxxx X. Xxxx /s/
Name: Xxxxxx X Xxxx
Title:
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TENANT:
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PHAGE THERAPEUTICS INTERNATIONAL, INC., A
FLORIDA CORPORATION
By: /s/ Xxxxxxx Honour /s/
Name: Xxxxxxx Honour
--------------------------------------------------------
Title: VP Research & Development
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EXHIBIT A-1
[GENERAL DESCRIPTION OF PREMISES]
EXHIBIT A-2
LEGAL DESCRIPTION
A portion of the following described property:
Xxxx 00 xxx 00 xx Xxxxxxxx Xxxxxxxx Xxxx - Xxxxxxx as recorded under
Volume 131, Pages 87-91, King County Auditor. Portion of Sections 4,
5, and 9, Township 26 North, Range 5 East, X.X., Recording
Certificate No. 8508061034, and all areas of common use and benefit
in Quadrant Business Park - Bothell.
