EXHIBIT 10.5.1
SUBLEASE AGREEMENT
This Sublease Agreement ("Sublease") is entered as of May 22, 2003,
between Xxxxxx.xxx Holdings, Inc., a Delaware corporation ("Sublandlord") and
Blue Nile, Inc., a Delaware corporation ("Subtenant").
R E C I T A L S:
A. Xxxxxx.xxx, Inc., a Delaware corporation ("Original Tenant")
and Opus Union Station, L.L.C. ("Original Landlord") are parties to a
Multi-Tenant Office Lease Agreement dated as of August 23, 1999, as amended by
that certain Amendment 1 to the Multi-Tenant Office Agreement dated as of May
21, 2001 (the "First Amendment") (as amended from time to time, the "Prime
Lease"), Original Tenant's interest in which is now held by Sublandlord.
Effective June 12, 2001, Original Landlord's interest in the Prime Lease was
transferred to Seattle Union Station II, LLC, a Washington limited liability
company ("Landlord'). Pursuant to the Prime Lease, Sublandlord leases 253,769
square feet of Rentable Area (as defined in the Prime Lease) (the "Leased
Premises") from Landlord at the Opus Center South Building (the "Building"). The
Leased Premises and the Building are more fully described in the Prime Lease
attached as EXHIBIT A to this Sublease.
B. Subtenant wishes to acquire from Sublandlord the right to
occupy part of the 9th floor of the Building (as depicted on the illustration
attached hereto as EXHIBIT B and consisting of 21,135 square feet of Rentable
Area of a total of 24,184 square feet of Rentable Area on the 9th floor), as
determined in this Sublease for such floor as set forth in the First Amendment)
(the "Subleased Premises").
AGREEMENT
In consideration of the mutual promises of the parties and for other good and
valuable consideration, the receipt and sufficiency of which are acknowledged,
the parties agree as follows:
1. SUBLEASE OF SUBLEASED PREMISES
1.1 INITIAL SUBLEASED PREMISES. Sublandlord subleases to
Subtenant, and Subtenant subleases from Sublandlord, the Subleased Premises,
subject and pursuant to the terms and conditions of this Sublease. Within 10
business days after completion of the Subtenant's Improvements (defined in
Section 6.1 below) in the Subleased Premises, or after any space is added to the
Subleased Premises under the terms of Sections 1.2, 1.3 or 1.4 of this Sublease,
Subtenant and Sublandlord shall measure the Subleased Premises, or, as
applicable, any area(s) hereafter added to the Subleased Premises, by such
person as shall be reasonably acceptable to Subtenant, Sublandlord and Landlord,
and the Rentable Area shall be determined by such person using the standards set
forth in the Prime Lease. Sublandlord and Subtenant shall each pay one half of
the cost of such measurement. If Sublandlord, Subtenant or Landlord disputes the
measurement provided by the designated architect, the parties will jointly agree
upon a second person to perform the measurements and the results of this second
measurement will be final and binding upon the parties hereto for all purposes
hereunder, including, without limitation, the
1.
determination of the total Basic Rent and Subtenant's Share (both as defined in
this Sublease). If the Rentable Area determined by any such measurement should
differ from that set forth in this Sublease, the parties shall jointly execute
an amendment to this Sublease setting forth the Rentable Area of the Subleased
Premises, the Basic Rent, Subtenant's Share and such other matters herein (if
any) that vary with the size of the Subleased Premises; provided, however, any
failure to execute such amendment shall not affect the results of such
remeasurement. Until such measurement occurs, the approximate Rentable Area of
the Subleased Premises set forth in Recital B above will be binding.
1.2 OPTION TO EXPAND. Commencing on the Sublease Commencement Date
and for a period of eight (8) months thereafter, Subtenant shall have the right
to exercise an option ("Expansion Option") to expand into the balance of the 9th
floor of the Building ("Expansion Space") by providing written notice to
Sublandlord. If Subtenant timely exercises its Expansion Option, then the
balance of the 9th floor of the Building shall be added to the Subleased
Premises effective 120 days from the effective date of Subtenant's notice
("Expansion Effective Date"). The parties will promptly sign an amendment to
this Sublease adding the Expansion Space to the Subleased Premises as of the
Expansion Effective Date. Subtenant's sublease of the Expansion Space will be
co-terminous with its sublease of the initial Subleased Premises. The amendment
will provide for the Expansion Space to be included as part of the Subleased
Premises and all terms and conditions of this Sublease will apply to the
Expansion Space, except that (a) the Subtenant Improvement Allowance for the
Expansion Space will be a prorated portion of the Subtenant Improvement
Allowance provided pursuant to Section 6.1 below stated on a per square foot
basis, based upon the total number of months that the Expansion Space will be a
part of the Subleased Premises as compared to the total number of months of the
Sublease Term, and (b) there will be no abatements in Base Rent for past time
periods. The following example is for purposes of clarification of the manner in
which the Subtenant Improvement Allowance will be calculated for the Expansion
Space: Assuming that the Expansion Space is 4,000 Square Feet of Rentable Area
and that it becomes a part of the Subleased Premises at the commencement of the
8th month of the Sublease Term, and assuming that the Sublease Term is 93
months, then the total available allowance stated on a per square foot basis
would be 86/93 times $58.50 (the Subtenant Improvement Allowance stated in
Section 6.1).
1.3 SAME FLOOR RIGHT OF FIRST OFFER. After that date which is
twelve months from the Sublease Commencement Date, Subtenant will have a right
of first offer to sublease any space that Sublandlord intends to sublease in the
same floor of the Building ("Floor RFO"), subject to the pre-existing rights of
other subtenants of the Building as of the date of this Sublease Agreement. When
such space becomes available for sublease, Sublandlord will give written notice
("Floor RFO Notice") to Subtenant containing a proposal to add the available
space ("Floor RFO Space") to the Subleased Premises on all terms and conditions
of this Sublease (except Base Rent and the amount of any tenant improvement
allowance (if any), which will be on such terms and conditions as Sublandlord is
prepared to accept in view of market conditions at the time for comparable
space). If Subtenant wants to accept Sublandlord's offer to sublease the Floor
RFO Space, it will give Sublandlord an irrevocable notice of acceptance of such
space within 7 business days and, in such case, the parties will promptly sign
an amendment to this Sublease adding the Floor RFO Space to the Subleased
Premises on the terms of the Floor RFO Notice. Subtenant's sublease of the Floor
RFO Space will be co-terminus with its sublease of the initial Subleased
Premises. If Subtenant does not timely
2.
notify Sublandlord of its desire to accept the offer, Sublandlord will be free
to sublease the RFO Space on any terms to any other party and Subtenant shall
have no further rights with respect to such Floor RFO Space; provided, however,
that if Sublandlord proposes to sublease the RFO Space to any other party at a
Basic Rent that is less than 90% of the rate offered to Subtenant, then
Sublandlord shall give notice to Subtenant of the new Basic Rent that it
proposes for that sublease and Subtenant shall have 3 business days in which to
give Sublandlord an irrevocable notice of acceptance, and in such case, the
parties will promptly sign an amendment to this Sublease adding the Floor RFO
Space to the Subleased Premises on the terms set forth in Landlord's second
notice. This right of first offer applies only with respect to the entire Floor
RFO Space and may not be exercised with respect to only a portion. This right of
first offer will, at Sublandlord's election, be null and void with respect to
the subject Floor RFO Space for its current availability if any Event of Default
(as defined in the Prime Lease) under the Sublease exists on the date
Sublandlord would otherwise notify Subtenant of its offer for the Floor RFO
Space or at any time thereafter before the parties sign an amendment adding the
Floor RFO Space to this Sublease. If Subtenant declines to sublease Floor RFO
Space, Sublandlord subleases to a third party and the same Floor RFO Space
subsequently becomes available once again, then for the first 72 calendar months
of the Sublease Term Tenant will have a continuing right of first offer to
sublease any Floor RFO Space that becomes available on the terms set forth in
this Section 1.3.
1.4 ADJACENT FLOOR RIGHT OF FIRST OFFER. In addition to the Same
Floor RFO, at any time after the expiration of the forty-eighth (48th) month of
the Sublease Term ("Adjacent Floor RFO Date"), Subtenant will have a right of
first offer to sublease any space that Sublandlord intends to sublease on a
floor that is adjacent to a floor on which Subtenant is already subleasing space
from Sublandlord, subject to the pre-existing rights of other subtenants of the
Building as of the Adjacent Floor RFO Date. For purposes of this Section 1.4,
any floor in the Building shall be deemed to be an adjacent floor if all
rentable area on all floors lying between the subject floor and the Premises is
fully subleased at the time that space becomes available on the subject floor.
When such space becomes available for sublease, Sublandlord will give written
notice ("Adjacent Floor RFO Notice") to Subtenant containing a proposal to add
the available space ("Adjacent Floor RFO Space") to the Subleased Premises on
all terms and conditions of this Sublease (except (a) Basic Rent which will be
on such terms and conditions as Sublandlord is prepared to accept in view of
market conditions at the time for comparable space, and (b) any other allowances
under the Sublease, which will provided only in the sole discretion of
Sublandlord). If Subtenant wants to accept Sublandlord's offer to sublease the
Adjacent Floor RFO Space, it will give Sublandlord an irrevocable notice of
acceptance of such space within 7 business days and, in such case, the parties
will promptly sign an amendment to this Sublease adding the Adjacent Floor RFO
Space to the Subleased Premises, on the terms of the Adjacent Floor RFO Notice.
Subtenant's sublease of the Adjacent Floor RFO Space will be co-terminus with
its sublease of the initial Subleased Premises. If Subtenant does not timely
notify Sublandlord of its desire to accept the offer, Sublandlord will be free
to sublease the Adjacent Floor RFO Space an any terms to any other party and
Subtenant shall have no further rights with respect to such Adjacent Floor RFO
Space. Notwithstanding the foregoing, if the entire 9th floor of the Building is
subleased to Subtenant or to Subtenant and any third party, then if Sublandlord
proposes to sublease the Adjacent Floor RFO Space to any party other than
Subtenant at a Basic Rent that is less than 90% of the rate offered to
Subtenant, then Sublandlord shall give notice to Subtenant of the new Basic Rent
that it proposes for that sublease and Subtenant shall have 3
3.
business days in which to give Sublandlord an irrevocable notice of acceptance,
and in such case, the parties will promptly sign an amendment to this Sublease
adding the Adjacent Floor RFO Space to the Subleased Premises on the terms set
forth in Landlord's second notice. This right of first offer applies only with
respect to the entire Adjacent Floor RFO Space and may not be exercised with
respect to only a portion. This right of first offer will, at Sublandlord's
election, be null and void with respect to the subject Adjacent Floor RFO Space
for its current availability if any Event of Default (as defined in the Prime
Lease) under the Sublease exists on the date Sublandlord would otherwise notify
Subtenant of its offer for the Adjacent Floor RFO Space or at any time
thereafter before the parties sign an amendment adding the Adjacent Floor RFO
Space to this Sublease. If Subtenant declines to sublease Adjacent Floor RFO
Space, Sublandlord subleases to a third party and the same Adjacent Floor RFO
Space subsequently becomes available once again, then for the first 72 calendar
months of the Sublease Term Tenant will have a continuing right of first offer
to sublease that Adjacent Floor RFO Space on the terms set forth in this Section
1.4.
1.5 TEMPORARY LICENSE DURING BUILDOUT. During construction of
Subtenant's Improvements, Subtenant shall have a license to use approximately
3,000 square feet of space on the 9th Floor of the Building that is not a part
of the Premises for use as a staging area for construction work and to make
certain improvements as described in Section 6.1 below, and for no other use or
purpose whatsoever. All of the terms and conditions of this Sublease shall apply
with respect to this temporary license except for payment of Rent.
2. TERM OF SUBLEASE.
2.1 The term of this Sublease ("Sublease Term") will commence
("Sublease Commencement Date") the earlier of (i) August 1, 2003 or (ii)
Substantial Completion (as defined in the Prime Lease) of the Subtenant's
Improvements (as defined below); provided, however, that if the conditions
precedent that are set forth in Sections 8.1 and 8.2 below are not satisfied
within fifteen days of the date this Sublease has been executed by both
Sublandlord and Subtenant, then the date of August 1, 2003 that is set forth in
(i) above shall be extended one day for each day that elapses until the
conditions precedent have been satisfied, up to a maximum of 16 days; and
provided, further, that if either Landlord or Tenant fails to act on Subtenant's
proposed space plan or final plans within the time lines specified in the Prime
Lease, then the date of August 1, 2003 that is set forth in (i) above shall be
extended one day for each day that elapses until both Landlord and Tenant have
acted on Subtenant's Proposed space plan or final plans, as the case may be.
Unless earlier terminated in accordance with the terms and conditions of this
Sublease, the Sublease Term shall expire with respect to the entire Subleased
Premises at 11:59 p.m. on April 29, 2011. If the Commencement Date is a day
other than August 1, 2003, the parties shall promptly sign an amendment to this
Sublease confirming the Commencement Date.
Subtenant shall have access to the Subleased Premises for the purposes
of constructing Subtenant's Improvements and for installation of furniture and
equipment from and after the date that the conditions precedent that are set
forth in Section 8.1 below are satisfied, and all of the terms and conditions of
this Sublease shall apply from and after that date except for payment of Rent.
4.
2.2 Subtenant will have a one time right to terminate this
Sublease without cause ("Termination Right") by providing Sublandlord with
written notice of termination on or before the first day of the 48th month
("Notice Date") of the Sublease Term and paying the Early Termination Fee
described below prior to the Early Termination Date (as that term is defined
below). If Subtenant properly exercises the Termination Right then: (a) the
termination will become effective upon the last day of the 59th month of the
Sublease Term ("Early Termination Date"), and (b) prior to the Early Termination
Date, Subtenant shall pay an early termination fee equal to the sum of the
then-unamortized portions of the Subtenant Improvement Allowance and
Architectural Allowance ("Early Termination Fee"). In the event that Subtenant
fails to exercise the Termination Right by the Notice Date, or exercises the
Termination Right by the Notice Date but fails to pay the Early Termination Fee
prior to the Early Termination Date, then the Termination Right and the
effectiveness of any notice given by Subtenant exercising the Termination Right
shall expire and be of no further force or effect; provided, however, that if
Subtenant exercises the Termination Right by the Notice Date but fails to pay
the Early Termination Fee prior to the Early Termination Date, then Sublandlord
shall have the right, but not the obligation, to accept the early termination of
the Sublease Term and to recover from Subtenant Sublandlord's losses, costs and
damages arising out of Subtenant's failure to timely pay the Early Termination
Fee, including, but not limited to, interest at the Maximum Rate.
2.3 Sublandlord agrees to waive its renewal rights under the Prime
Lease with respect to the Subleased Premises until the earlier of: (a)
Subtenant's failure to provide written notice to Sublandlord prior to the
expiration of the end of the 80th month of the term of this Sublease that
Subtenant intends to enter into a direct lease for the Subleased Premises upon
the expiration of this Sublease, (b) the termination of this Sublease prior to
the expiration of the Subleased Term, or (c) an event of default by Subtenant
under this Sublease.
3. BASIC RENT AND ADDITIONAL RENT.
Rent to be paid under this Sublease will include Basic Rent and
Additional Rent as described in this Section 3, and all other sums that may be
owing from Subtenant to Sublandlord under the terms of this Sublease.
3.1 BASIC RENT
Basic Rent during the Sublease Term will be $13.12 per square foot of
Rentable Area in the Subleased Premises per year, except that, provided there is
no Event of Default by Subtenant under this Sublease at any time during the
Sublease Term, Basic Rent and Tenant's Share of Operating Expenses (calculated
on an annualized basis) for months 1, 2, 3, 13, 25, 37, 49, 61, 73 and 85 of the
Sublease Term shall xxxxx. For example, if the Subleased Premises contain the
Rentable Area that is set forth in Recital B above, then Basic Rent will be
$23,107.60 per month (except as it may be abated pursuant to the previous
sentence of this Section 3.1). For purposes of this Section 3.1, the first month
of the Sublease Term shall commence on the Sublease Commencement Date and
subsequent months shall commence on the same day of the following months. Basic
Rent shall be paid in equal monthly installments and without previous demand,
invoice or notice for payment. Each installment of Basic Rent shall be due and
payable in advance on the first day of each month during the Sublease Tenn. Rent
for any partial months during the Sublease Term shall be prorated based upon the
actual number of days in the month.
5.
3.2 ADDITIONAL RENT
Commencing on the Sublease Commencement Date, Subtenant will pay as
Additional Rent (i) Subtenant's Share (as that term is defined below) of the
amounts owed by Sublandlord as Tenant's Share of Operating Expenses (as that
term is defined in the Prime Lease) under Section 2.2 and Article 3 of the Prime
Lease and (ii) all other sums that constitute Additional Rent under the terms of
the Prime Lease and that pertain to the Subleased Premises or to Subtenant's use
or occupancy of the Subleased Premises. "Subtenant's Share" shall be a fraction,
the numerator of which is the number of rentable square feet in the Subleased
Premises and the denominator of which shall be 253,769. Upon receipt of a
statement from Sublandlord containing the amount of Subtenant's Share of
Operating Expenses (in accordance with estimates provided by Landlord under
Sections 3.2 and 3.4 of the Prime Lease), Subtenant will pay Subtenant's Share
of the amounts payable pursuant to clause (i) above, together with Basic Rent,
on the first day of each month during the Sublease Term without previous demand,
invoice or notice for payment. Subtenant will pay all amounts payable pursuant
to clause (ii), and of any other Additional Rent due under this Sublease, within
30 days after receiving Sublandlord's invoice therefor.
3.3 MANNER AND METHOD OF PAYMENT
All rent payments shall be made in United States Dollars, without
deduction or offset, except as otherwise provided herein, and delivered to
Sublandlord at the address set forth in Section 9 of this Sublease, or to such
other entity and/or at such other address as Sublandlord may designate in
writing from time to time. Basic Rent and Additional Rent relating to Operating
Expenses for any partial month shall be prorated in proportion to the number of
days in that month.
3.4 SECURITY DEPOSIT
Upon execution of this Sublease, Subtenant shall deposit with
Sublandlord a cash security deposit ("Security Deposit") in the amount of
$40,896.23 (the "Deposit Amount"). If additional Rentable Area is added to the
Subleased Premises, the Deposit Amount shall be adjusted so that it is equal to
the Basic Rent plus estimated Tenant's Share of Operating Expenses for the last
month of the Sublease Tenn. The Security Deposit shall be held by Sublandlord as
security for Subtenant's performance of its obligations under this Sublease and
may be applied, at Sublandlord's sole discretion, against any obligation
incurred by Subtenant in connection with this Sublease that is not timely paid
or performed (as the case may be), including the payment of Basic Rent and
Additional Rent, the repair of any damage that is Subtenant's responsibility,
and all other obligations of Subtenant under this Sublease. If Sublandlord
debits the Security Deposit, Sublandlord shall notify Subtenant of the
occurrence and amount of the debit, and Subtenant shall promptly pay to
Sublandlord the amount necessary to restore the Security Deposit to the full
Deposit Amount. Sublandlord is not required to keep the Security Deposit
separate from its general funds and Subtenant is not entitled to interest on the
Security Deposit. If Subtenant performs each of its obligations under this
Sublease, then the Security Deposit, or any then-remaining balance thereof,
shall be returned to Subtenant within 30 days after the later of (i) the
expiration of the Sublease Term or termination of this Sublease, and
6.
(ii) the date on which Subtenant surrenders the Subleased Premises to
Sublandlord in the condition required by this Sublease.
4. ADDITIONAL OBLIGATIONS OF SUBTENANT
4.1 INCORPORATION BY REFERENCE OF PRIME LEASE TERMS
In addition to the payment of rent, Subtenant agrees, for the benefit
of Sublandlord and Landlord, that during the Sublease Term Subtenant shall
perform each and every one of the obligations of the tenant under the Prime
Lease that is incorporated into this Sublease. The following terms, covenants,
and conditions of the Prime Lease are incorporated into this Sublease with the
same force and effect as if Sublandlord were the landlord under the Prime Lease
and Subtenant were the tenant under the Prime Lease, except that, except as may
be otherwise expressly provided, each reference in such incorporated provisions
to "Lease" shall be deemed a reference to this "Sublease" and each reference to
"Premises" shall be deemed a reference to the "Subleased Premises": Sections
1.2.3; 1.2.4; 2.3; 2.4; 3.6; 3.8; Article 4 (except (i) the last sentence of
Section 4.1, (ii) with respect to Section 4.4, only the first three sentences
thereof and (iii) with respect to Section 4.3, the term "Landlord" shall mean
"either Landlord or Sublandlord" except in the last sentence of Section 4.3, in
which the term "Landlord" shall mean "Landlord and Sublandlord"); Article 5
(except for the second paragraph of Article 5.4, and except that with respect to
Article 5, the term "Landlord Parties" shall have the meaning ascribed to it in
the Prime Lease and shall also include Sublandlord and its officers, directors
and shareholders); the third sentence of Section 6.1.2; Section 6.2; Section
6.4; Section 7.2.1 (except the first and fifth sentences thereof); the first and
third sentences of Section 7.2.2; the first and third paragraphs of Section 8.1;
Section 8.2 (except that with respect to Section 8.2 the term "Landlord" shall
mean "both Landlord and Sublandlord" and the reference to $150,000 shall be
changed to $10,000); Section 8.3 (except that the reference to $100,000 shall be
changed to $10,000); Sections 8.4; 8.5 (except that with respect to Section 8.5,
the term "Landlord Parties" shall have the meaning ascribed to it in the Prime
Lease and shall also include Sublandlord and its officers, directors and
shareholders); Sections 9.1 (first four sentences only) and 9.6; 10.1 and, with
respect to Section 10.1.5, the term "Landlord Parties" shall have the meaning
ascribed to it in the Prime Lease and shall also include Sublandlord and its
officers, directors and shareholders); 10.2.3; 10.3 (except that with respect to
Section 10.3, the term "Landlord Parties" shall have the meaning ascribed to it
in the Prime Lease and shall also include Sublandlord and its officers,
directors and shareholders); 10.4 (except that with respect to Section 10.4, the
term "Landlord Parties" shall mean Sublandlord and its officers, directors and
shareholders); 10.5; 10.6; 10.7; Article 13; 14.1 (except that the applicable
cure or grace periods under Sections 14.1.2 and 14.1.4 shall be reduced by 3
business days); 14.2; 14.3; 14.4; the first paragraph of 14.5; 14.6; 14.7; 15.4
(except that, in addition, Subtenant will execute any such document at
Landlord's request); 16.1 (except that the term "Commencement Date" shall mean
the Sublease Commencement Date and excluding the proviso in the 3rd sentence and
excluding the 4th sentence); 16.2 (except that the term "Term" shall mean the
Sublease Term); Sections 17.1.14 (as modified by the First Amendment); 17.11.1;
18; 19.1 (as to notices to Landlord); 19.4; 19.5; 19.7; 19.8; 19.9; 19.10
(except that with respect to Section 19.10, the term "Landlord Parties" shall
mean "Sublandlord and its officers, directors and shareholders"); 19.12; 19.13;
19.16; 19.17; 19.18; 19.20 (except the last sentence); 19.21; 19.23; 19.24;
Exhibit A of the Prime Lease with respect to those terms used in the foregoing
provisions or that are necessary in order
7.
to accurately define those terms; and paragraph 11 of the First Amendment.
Notwithstanding anything to the contrary in the foregoing, Subtenant shall
obtain the insurance required by Section 10.1 of the Prime Lease and shall name
Landlord and its Property Manager and Sublandlord as additional insureds
thereunder.
4.2 SUBJECT TO PRIME LEASE
This Sublease is subject and subordinate to the Prime Lease (including
the provisions thereof not incorporated herein by reference) and to all of
Landlord's rights under the terms of the Prime Lease. Subtenant has no
authority, and shall not attempt to exercise any of Sublandlord's options (if
any exist) to extend or terminate the Prime Lease or to add or remove space from
the Leased Premises. Subtenant shall, within ten (10) business days after
request made by either Landlord or Sublandlord, execute and deliver a
subordination agreement requested by any current or future mortgagee or ground
lessor of the Building or any portion thereof in a commercially reasonable form,
subordinating this Sublease to the interest of such mortgagee or ground lessor.
Sublandlord will not modify or amend the Prime Lease during the Sublease Term in
a manner that affects Subtenant's rights or obligations under this Sublease
without Subtenant's prior consent (which will not be unreasonably withheld,
conditioned or delayed).
Sublandlord and Landlord (but, with respect to Landlord, subject to the
terms and conditions of any agreement between Landlord and Subtenant to
recognize Subtenant as Landlord's tenant in the event of a termination of the
Prime Lease) shall have no liability whatsoever to Subtenant with respect to (i)
termination of the Prime Lease for any reason (including without limitation
Sublandlord's default thereunder) or (ii) termination of this Sublease as a
result of termination of the Prime Lease. However, notwithstanding the
foregoing, Sublandlord shall be liable to reimburse Subtenant for any amount
paid by Subtenant to Sublandlord as Basic Rent or Additional Rent under this
Sublease which Sublandlord fails to pay as rent to Landlord (to the extent
actually due under the Prime Lease).
4.3 BUILDING SERVICES/BUILDING SECURITY
Notwithstanding anything to the contrary in this Sublease (including
Section 4.1 above), Subtenant acknowledges that Sublandlord does not have
control of the Building, Building security or the Building systems, and that
Sublandlord will not provide Building security, utilities, maintenance, repair
or restoration work or other Building services (including, without limitation,
those services and obligations to be performed by Landlord under Articles 6, 7,
11, 12 and 17.12 of the Prime Lease). Subject to the terms of this paragraph 4.3
and the Landlord's Consent, Subtenant will took solely to Landlord for
performance of the services to which Sublandlord is entitled under Article 6,
7.1 and 17.12 of the Prime Lease. In the event that Subtenant utilizes HVAC
after hours, Subtenant will be required to pay only the actual cost due for such
services under the Prime Lease, which is currently $13.40 per hour per floor.
Without limiting the generality of the foregoing, Sublandlord shall have no
liability for any interruption or stoppage of services, and no such interruption
or stoppage of services shall relieve Subtenant from any obligation that it may
have under this Sublease, including without limitation, the obligation to pay
Basic Rent and Additional Rent; provided, however, that if Sublandlord's Basic
Rent is abated with respect to any portion of the Subleased Premises pursuant to
Section 6.3 of
8.
the Prime Lease, and if the interruption or stoppage is not caused by misuse or
neglect by Subtenant or Subtenant's agents or employees, then Basic Rent for the
portion of the Subleased Premises that is not usable shall xxxxx for the period
of time that Sublandlord's Basic Rent abates pursuant to Section 6.3 of the
Prime Lease with respect to that portion of the Subleased Premises. Sublandlord,
upon receipt of written notice from Subtenant, shall make demand upon Landlord
to take all appropriate action for the correction of any defect, inadequacy or
insufficiency in Landlord's performance under the Prime Lease that interferes
with Subtenant's use of the Subleased Premises, including, but not limited to,
Landlord's obligations to repair and restore the Premises as described in
Section 11.5 of the Prime Lease.
4.4 SUBTENANT TO COMPLY WITH PRIME LEASE
Subtenant shall neither do nor permit anything to be done that would
cause the Prime Lease to be terminated or forfeited by reason of any right of
termination or forfeiture or default reserved or vested in Landlord under the
Prime Lease, and Subtenant shall indemnify and hold Sublandlord harmless from
and against all claims, actions, liabilities, damages, costs, penalties,
forfeitures, losses or expenses of any kind whatsoever including, without
limitation, reasonable attorneys' fees, arising out of Subtenant's breach of the
foregoing covenant.
4.5 USE OF SUBLEASED PREMISES
Subtenant will use the Subleased Premises for general, non-governmental
office purposes and for no other use or purpose whatsoever. Subtenant shall not
use the Subleased Premises for any unlawful purpose or in any manner prohibited
by the Prime Lease.
4.6 NOTICES FROM LANDLORD OR GOVERNMENTAL AUTHORITY
Subtenant agrees to forward to Sublandlord, promptly upon receipt
thereof, copies of any notices relating to Subtenant's occupancy or use of the
Subleased Premises received by Subtenant from Landlord or from any governmental
authority. Sublandlord will forward to Subtenant, promptly upon receipt thereof,
copies of any notices relating to the Subleased Premises or this Sublease from
Landlord or from any governmental authority.
5. PARKING
5.1 PARKING
Subtenant shall have the right to use up to 1 Regular Parking Stall (as
defined in the Prime Lease) per 1,000 rentable square feet of the Subleased
Premises in the manner and on the allocation and payment terms described in the
Parking Agreement attached hereto as EXHIBIT C. Subtenant's right shall be
subject to the terms of Section 17.8 of the Prime Lease, the Parking Agreement,
and to all rules and regulations imposed by the Garage Operator (as that term is
defined in the Prime Lease), including but not limited to the right of the
Garage Operator to impose and adjust hours and charges for parking.
9.
6. ACCEPTANCE OF PREMISES; ALTERATIONS; MOVING ALLOWANCE
6.1 INITIAL SUBTENANT IMPROVEMENTS
Subtenant will build out its initial improvements ("Subtenant's
Improvements") at its sole cost in accordance with all terms and conditions of
the Prime Lease. Sublandlord hereby assigns to Subtenant the right to receive
from Landlord a portion of the Improvement Allowance equal to $30 per square
foot of the Rentable Area in the Subleased Premises ("Base Improvement
Allowance"), provided that such assignment may be immediately revoked during the
existence of any Event of Default (as defined in the Prime Lease) under this
Sublease that remains uncured or that is no longer susceptible of cure in
accordance herewith. In addition to the Base Improvement Allowance, Sublandlord
agrees to provide Subtenant with a tenant improvement allowance equal to $28.50
per square foot of the Rentable Area in the Subleased Premises ("Additional
Allowance") over the base building items to be provided by Landlord as reflected
in the Base Building Specifications in the Master Lease, provided that such
allowance may be immediately revoked during the existence of any Event of
Default (as defined in the Prime Lease) under this Sublease that remains uncured
or that is no longer susceptible of cure in accordance herewith. The Base
Improvement Allowance and the Additional Allowance are collectively referred to
as the "Subtenant Improvement Allowance". The Subtenant Improvement Allowance
will be applied to the cost of tenant improvements and any Additional
Architectural Services, but, except as is expressly provided below, not to
fixtures, furniture or equipment. The Base Improvement Allowance will be
disbursed in accordance with the Prime Lease and the Additional Allowance will
be disbursed by Sublandlord within thirty (30) days of Sublandlord's receipt of
valid invoices for completion of the Subtenant's Improvements. Sublandlord will
not charge a plan review fee or any other fee to Subtenant for its involvement
in the design and construction process (other than amounts payable to Landlord
pursuant to Section 8.2 of the Prime Lease). Subtenant will deliver to
Sublandlord copies of all drawings, materials, documents and submissions at the
same time as Subtenant delivers such items to Landlord in connection with the
design and construction of Subtenant's Improvements. In the event that Subtenant
does not spend the entire Additional Allowance on Subtenant's Improvements, then
notwithstanding anything to the contrary in this Sublease, the unspent amount of
the Additional Allowance may be applied, at Subtenant's Option to (a) as
additional rent abatement commencing in the 4th month of the Sublease Term, (b)
additional Architectural Services (defined below) and construction supervision
services, and/or (c) to offset any costs associated with the furniture,
telephone/data cabling, or any moving costs in excess of the Moving Allowance
(defined in Section 6.3 below).
Subtenant shall have the right to install a ceiling grid in the
Expansion Space ("Subtenant's Additional Improvements") as a part of
constructing Subtenant's Improvements to the Premises, subject to the terms of
this Sublease concerning approval of all of Subtenant's Improvements by Landlord
and Sublandlord. Subtenant acknowledges that Subtenant shall have no right
whatsoever to use, appropriate or otherwise enjoy the benefit of Subtenant's
Additional Improvements unless and until Subtenant takes occupancy of the
Expansion Space pursuant to an amendment to this Sublease. If Subtenant
exercises the Option to Expand, and if the total cost of Subtenant's
Improvements (including Subtenant's Additional Improvements) exceeds the
Subtenant Improvement Allowance such that Subtenant is required to make
additional payments in order to complete construction ("Subtenant's Payments"),
then at the time that Subtenant takes
10.
occupancy of the Expansion Space pursuant to an amendment to this Sublease
Sublandlord shall credit to Subtenant against rent due under this Sublease the
reasonable cost of Subtenant's Additional Improvements up to the amount of
Subtenant's Payments.
6.2 AS IS
Subtenant hereby confirms that by taking possession of the Subleased
Premises, Subtenant accepts the Subleased Premises in their "AS IS" condition.
Sublandlord makes no warranty of any kind concerning the Subleased Premises, the
Building or the project of which they are a part, and Sublandlord expressly
disclaims any warranty concerning latent defects, any warranty of fitness for
use, and any other express or implied warranty (including any warranty of
MERCHANTABILITY).
6.3 MOVING ALLOWANCE. No later than sixty (60) days from the
Commencement Date, Subtenant will provide Sublandlord with copies of invoices
(together with all applicable lien releases) of its expenses incurred in moving
from Subtenant's prior office space into the Subleased Premises ("Moving
Expenses"). Sublandlord will reimburse Subtenant for Moving Expenses of up to
$1.00 per square foot of the Rentable Area in the Subleased Premises ("Moving
Allowance") within 30 days of receipt of Subtenant's Moving Expenses invoices.
Moving Expenses shall include only the direct costs to relocate Subtenant's
facilities (e.g. packers, movers, transportation).
6.4 ARCHITECTURAL SERVICES ALLOWANCE. Sublandlord agrees to
reimburse Subtenant up to $2.00 per square foot of the Usable Area in the
Subleased Premises ("Architectural Allowance") for the schematic and
construction drawings and a construction work letter, including the cost of
permits and the fees and charges of the designers, relating to the Subleased
Premises ("Architectural Services"). Within 30 days of Sublandlord's receipt of
valid invoices for such architectural services, Sublandlord will pay the
applicable amounts due for the Architectural Allowance. Sublandlord agrees that
any unused Additional Allowance (defined in Section 6.1) may be applied to pay
for Architectural Services in excess of the Architectural Allowance.
7. HOLDING OVER
If Subtenant remains in possession of the Subleased Premises after
expiration of the Sublease Term or after the earlier termination of the
Sublease, Sublandlord may be treated by Landlord as being in breach of the Prime
Lease. Sublandlord may be obligated to pay damages to Landlord, including
consequential damages that are presently difficult or impossible to calculate.
In the event of any Subtenant holdover, the Base Rent due shall be 150% of the
then current Base Rent for each portion of the Subleased Premises. Subtenant
agrees to indemnify, defend and hold harmless Sublandlord from any and all
actions, liabilities, damages, costs, penalties, losses or expenses that may
arise out of or be in any way connected with any holding over by Subtenant
following the expiration or earlier termination of the Sublease Term.
8. CONDITION PRECEDENT
8.1 Subtenant acknowledges that Sublandlord's right to sublease
the Subleased Premises is subject to obtaining the prior written consent of
Landlord, and that Landlord's
11.
consent may be contingent upon execution by Subtenant of a subordination
agreement pursuant to Section 4.2 in favor of Bank of America. If such consent
is not obtained in the form attached hereto as EXHIBIT D, or Landlord has not
received approval from Bank of America to a form of subordination agreement that
is acceptable to Subtenant, within thirty (30) days of the date of this
Sublease, then either party may, at its option, terminate this Sublease by
written notice given within ten (10) business days of the expiration of the
thirty (30) day period.
8.2 The effectiveness of this Sublease is expressly conditioned
upon Landlord's execution and delivery of an agreement recognizing Subtenant as
Landlord's tenant in the event of a termination of the Prime Lease in form and
substance satisfactory to Subtenant within thirty days after the date of this
Sublease, and if such an agreement is not received by Subtenant within that
thirty-day period, then Subtenant may, at its option, terminate this Sublease by
written notice given to Sublandlord within ten (10) days after expiration of
such thirty (30) day period.
9. NOTICES
Any notice or demand which either party may or must give pursuant to or
in connection with this Sublease shall be in writing, delivered personally, sent
by prepaid overnight courier, sent by first class mail, postage prepaid,
registered or certified, return receipt requested, or sent by facsimile
transmission as follows:
To Sublandlord: Xxxxxx.xxx Holdings, Inc.
0000 00xx Xxx. Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Director, Global Real Estate
Fax: (000) 000-0000
with a copy to: Xxxxxx.xxx Holdings, Inc.
0000 00xx Xxx. Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Attn: General Counsel
Fax: (000) 000-0000
Address for
Rent Payments: Xxxxxx.xxx Holdings, Inc.
0000 00xx Xxx. Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Global Property Manager
Fax: (000) 000-0000
If to Subtenant: Prior to the commencement date of the Sublease
Term:
Blue Nile, Inc.
0000 Xxxxx Xxxxxx,Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xxx Xxxxxx
Fax: (000) 000-0000
12.
After the commencement date of the Sublease
Term:
Blue Nile, Inc.
At the address of the Premises
To the attention of Xx. Xxxxxx
And the same Fax number
with a copy to: Xxxxxxx Brain Xxxxxxxx PLLC
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx, P.S.
Fax: (000) 000-0000
Either party may, by notice in writing, direct that future notices or
demands be sent to a different address that is not a post-office box. Notices
given by mail are deemed effective three business days after deposit, postage
prepaid, with the United States Post Office. Notices delivered by courier are
deemed effective on the next business day after deposit with the courier for
overnight (next day) delivery. Notices sent by facsimile or delivered personally
are effective upon receipt.
10. DAMAGE OR DESTRUCTION
Notwithstanding anything to the contrary contained in this Sublease, in
the event any fire or other casualty renders the whole or any material part of
the Subleased Premises or the Building untenantable, then, whether or not any
fire or other casualty renders the whole or any material part of the Subleased
Premises untenantable, in such event (i) if either Landlord or Sublandlord
exercises a right under the Prime Lease to terminate the Prime Lease, then this
Sublease shall terminate upon termination of the Prime Lease, and (ii) if
neither Landlord nor Sublandlord exercises a right to terminate the Prime Lease,
then this Sublease shall remain in full force and effect, and for so long as any
portion of the Subleased Premises are untenantable Basic Rent and Subtenant's
Share of Operating Expenses shall xxxxx pro rata based upon the Rentable Area of
the Subleased Premises that is untenantable as compared to the total Rentable
Area of the Subleased Premises. Notwithstanding the foregoing, if Landlord
exercises its right to terminate the Prime Lease, then Sublandlord shall have
the right at its election to terminate this Sublease and shall have no
obligation whatsoever to exercise its right under Section 11.4 of the Prime
Lease to avoid termination of the Prime Lease. If, however, Sublandlord does
elect to avoid termination of the Prime Lease, and if Subtenant promptly pays to
Sublandlord Subtenant's Share of the amount payable by Sublandlord to Landlord
in order to avoid termination, and not otherwise, then this Sublease shall
continue in full force and effect.
The provisions of this Section 10 are Subtenant's sole and exclusive
rights and remedies in the event of a casualty. To the extent permitted by the
Laws (as that term is defined in the Prime Lease), Subtenant waives the benefit
of any Law that provides to Subtenant any abatement or termination right by
virtue of a casualty.
13.
11. EMINENT DOMAIN
In the event a Condemning Authority effects a Taking (as those terms
are defined in the Prime Lease) of all or a portion of the Leased Premises,
then, (i) if either Landlord or Sublandlord exercises a right to terminate the
Prime Lease, then this Sublease shall terminate upon termination of the Prime
Lease, and (ii) if neither Landlord nor Sublandlord exercises a right to
terminate the Prime Lease, then this Sublease shall remain in full force and
effect. If a portion of the Subleased Premises are taken and this Sublease does
not terminate, then Basic Rent shall be adjusted based upon the formula set
forth in Section 12.2 of the Prime Lease as applied to the Subleased Premises,
and Sublandlord shall equitably adjust Subtenant's Share of Operating Expenses
to account for any reduction in the number of rentable square feet in the
Subleased Premises.
Subtenant waives and assigns to Sublandlord any interest it may have in
any damage, award or payment resulting from or paid on account of any Taking,
provided that Subtenant shall have the right to recover from any Condemning
Authority any compensation that may be separately recoverable for damages to or
condemnation of Subtenant's movable trade fixtures and equipment and for moving
expenses. Subtenant shall not have any right to receive any award for its
interest in this Sublease or for loss of leasehold. The provisions of this
Section 11 are Subtenant's sole and exclusive rights and remedies in the event
of a Taking. To the extent permitted by the Laws (as that term is defined in the
Prime Lease), Subtenant waives the benefits of any Law that provides Subtenant
any abatement or termination rights or any right to receive any payment or award
by virtue of a Taking.
12. NO RECORDING
Neither party shall record this Sublease or any memorandum of this
Sublease.
13. SUCCESSORS AND ASSIGNS
Subject to the limitations set forth in this Sublease, the covenants
and agreements in this Sublease shall bind and inure to the benefit of
Sublandlord, Subtenant and their respective successors and permitted assigns.
14. ACCESS/INSPECTION
Subtenant acknowledges and agrees to Landlord's access rights reserved
under Section 9.1 the Prime Lease and acknowledges and agrees that those rights
apply to the Subleased Premises and that Landlord has no obligation to give
notice to Subtenant of its intent to enter. Sublandlord shall make commercially
reasonable efforts to advise Subtenant promptly if and when Sublandlord receives
notice that Landlord intends to enter upon the Subleased Premises.
15. SIGNAGE
Subtenant will have the right, at no extra charge and in common with
Sublandlord and other occupants of the Building, to install the signage
described in subsection (1) of Section 17.11.2 of the Prime Lease. Subtenant
will comply with and satisfy all restrictions,
14.
obligations and liabilities concerning signage under the Prime Lease and will
pay all costs associated therewith.
16. AGENTS AND BROKERS
At the signing of this Agreement, Washington Partners represented
Sublandlord and Washington Partners represented Subtenant, subject to separate
agreements that are not part of this Sublease. Sublandlord will be responsible
for payment of and will indemnify and hold Subtenant harmless from and against
all commissions or fees due to Washington Partners in connection with this
Sublease pursuant to a separate agreement between Sublandlord and Washington
Partners. Each party represents to the other that it has engaged no other agent
broker or agent in connection with the negotiation leading to this agreement,
and shall bold the other harmless from any claim or demand from any other agent
or broker claiming to have acted on behalf of the indemnifying party in
connection with this Sublease.
17. ENTIRE AGREEMENT
This Sublease represents the entire agreement of the Sublandlord and
Subtenant with respect to this subject matter and supersedes all prior oral and
written understandings and agreements of the parties, all of which are merged
within this Sublease. This Sublease may not be amended, modified, or
supplemented in any manner other than by the written agreement of the parties
signed by the authorized representatives of the parties.
18. EXHIBITS
The following Exhibits attached to this Sublease are incorporated into
and made a part of it by this reference:
EXHIBIT A Prime Lease
EXHIBIT B Illustration of Subleased Premises
EXHIBIT C Parking Agreement
EXHIBIT D Landlord's Consent
Executed in duplicate as of the date first written above.
SUBLANDLORD:
XXXXXX.XXX HOLDINGS, INC.
By: /s/ Xxxx X. Xxxx
----------------------------------
Name: Xxxx X. Xxxx
Title: XX XXX
15.
SUBTENANT:
BLUE NILE, INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: COO
16.
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
On this 22 day of May, 2003, before me, the undersigned, a Notary
Public in and for the State of Washington, duly commissioned and sworn,
personally appeared Xxxx Xxxx, to me known to be the person who signed as Vice
President of Xxxxxx.xxx Holdings, Inc., the corporation that executed the within
and forgoing instrument, and acknowledged said instrument to be the free and
voluntary act and deed of said corporation for the uses and purposes therein
mentioned, and on oath stated that he was duly elected, qualified and acting as
said officer of the corporation, that he was authorized to execute said
instrument and that the seal affixed, if any, is the corporate seal of said
corporation.
IN WITNESS WHEREOF I have hereunto set my hand and official seal the
day and year first above written.
/s/ X.X. Xxxxxxx
----------------------------
(Signature of Notary)
X.X. Xxxxxxx
-----------------------------
(Print or stamp name of Notary)
NOTARY PUBLIC in and for the State of
Washington, residing at 0000 X. 000xx Xxx
Xxxxxx
My appointment expires: June 29, 2006
17.
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
On this 15th day of May, 2003, before me, the undersigned, a Notary
Public in and for the State of Washington, duly commissioned and sworn,
personally appeared Xxxxxx X. Xxxxxx, to me known to be the person who signed as
COO of Blue Nile, Inc., the corporation that executed the within and foregoing
instrument, and acknowledged said instrument to be the free and voluntary act
and deed of said corporation for the uses and purposes therein mentioned, and on
oath stated that he was duly elected, qualified and acting as said officer of
the corporation, that he was authorized to execute said instrument and that the
seal affixed, if any, is the corporate seal of said corporation.
IN WITNESS WHEREOF I have hereunto set my hand and official seal the day and
year first above written.
/s/ Xxxxxx X. Xxxx
----------------------------------
(Signature of Notary)
Xxxxxx X. Xxxx
----------------------------------
(Print or stamp name of Notary)
NOTARY PUBLIC in and for the State of
Washington, residing at Kenmore.
My appointment expires: 10/5/03.
_________________________________________
(Signature of Notary)
_________________________________________
(Print or stamp name of Notary)
NOTARY PUBLIC in and for the State of
Washington, residing at_________________
My appointment expires:_________________
18.
EXHIBIT A TO SUBLEASE
PRIME LEASE
19.
MULTI-TENANT
OFFICE
LEASE AGREEMENT
OPUS UNION STATION, L.L.C., AS LANDLORD,
AND
XXXXXX.XXX, INC., AS XXXXXX.
XXXXXXXX 0
XXXX XXXXXX @ UNION STATION
SEATTLE, WA
TABLE OF CONTENTS
ARTICLE 1 LEASE OF PREMISES AND LEASE TERM............................................ 3
1.1 Premises.................................................................... 3
1.2 Term, Delivery and Commencement............................................. 3
1.2.1 Commencement and Expiration of Term.................................. 3
1.2.2 Tender of Possession................................................. 3
1.2.3 Commencement Date Memorandum......................................... 3
1.2.4 Early Access......................................................... 3
1.3 Effect of Acceptance........................................................ 4
ARTICLE 2 RENTAL AND OTHER PAYMENTS................................................... 4
2.1 Basic Rent.................................................................. 4
2.2 Additional Rent............................................................. 4
2.3 Delinquent Rental Payments.................................................. 4
2.4 Independent Obligations..................................................... 4
ARTICLE 3 OPERATING EXPENSES.......................................................... 4
3.1 Payment of Operating Expenses............................................... 5
3.2 Estimation of Tenant's Share of Operating Expenses.......................... 5
3.3 Payment of Estimated Tenant's Share of Operating Expenses................... 5
3.4 Re-Estimation of Operating Expenses......................................... 5
3.5 Confirmation of Tenant's Share of Operating Expenses........................ 5
3.6 Tenant's Inspection and Audit Rights........................................ 5
3.7 Amendments to Tenant's Share of Operating Expenses Percentage............... 6
3.8 Personal Property Taxes..................................................... 6
3.9 Right to Contest Property Taxes............................................. 6
3.10 [Reserved].................................................................. 7
ARTICLE 4 USE......................................................................... 7
4.1 Permitted Use............................................................... 7
4.2 [Reserved].................................................................. 7
4.3 Increased Insurance......................................................... 7
4.4 Laws/Building Rules......................................................... 7
4.5 Common Area................................................................. 7
ARTICLE 5 HAZARDOUS MATERIALS......................................................... 8
5.1 Compliance with Hazardous Materials Laws.................................... 8
5.2 Notice of Actions........................................................... 8
5.3 Disclosure and Warning Obligations.......................................... 8
5.4 Indemnification............................................................. 9
ARTICLE 6 SERVICES.................................................................... 9
6.1 Landlord's Obligations...................................................... 9
6.1.1 Janitorial Service................................................... 9
6.1.2 Electrical Energy.................................................... 9
6.1.3 Heating, Ventilation and Air Conditioning............................ 10
6.1.4 Water................................................................ 10
6.1.5 Elevator Service..................................................... 10
6.2 Tenant's Obligations........................................................ 10
6.3 Other Provisions Relating to Services....................................... 10
6.4 Tenant Devices.............................................................. 11
ARTICLE 7 MAINTENANCE AND REPAIR...................................................... 11
7.1 Landlord's Obligations...................................................... 11
7.2 Tenant's Obligations........................................................ 11
7.2.1 Maintenance of Premises.............................................. 11
7.2.2 Alterations Required by Laws......................................... 11
ARTICLE 8 CHANGES AND ALTERATIONS..................................................... 12
8.1 Landlord Approval........................................................... 12
8.2 Tenant's Responsibility for Cost and Insurance.............................. 12
8.3 Construction Obligations and Ownership...................................... 13
i
8.4 Liens....................................................................... 13
8.5 Indemnification............................................................. 13
ARTICLE 9 RIGHTS RESERVED BY LANDLORD................................................. 13
9.1 Landlord's Entry............................................................ 13
9.2 Control of Property......................................................... 14
9.3 Lock Box Agent/Rent Collection Agent........................................ 14
9.4 [Reserved].................................................................. 15
9.5 Telecommunications.......................................................... 15
9.5.1 Landlord's Rights.................................................... 15
9.5.2 Limited Liability.................................................... 15
9.6 Electromagnetic Fields...................................................... 16
ARTICLE 10 INSURANCE................................................................... 16
10.1 Tenant's Insurance Obligations.............................................. 16
10.1.1 Liability Insurance................................................. 16
10.1.2 Property Insurance.................................................. 16
10.1.3 Other Insurance..................................................... 16
10.1.4 Miscellaneous Insurance Provisions.................................. 17
10.1.5 Tenant's Waiver and Release of Claims and Subrogation............... 17
10.1.6 No Limitation....................................................... 17
10.2 Landlord's Insurance Obligations............................................ 17
10.2.1 Property Insurance.................................................. 17
10.2.2 Liability Insurance................................................. 17
10.2.3 Landlord's Waiver and Release of Claims and Subrogation............. 18
10.3 Tenant's Indemnification of Landlord........................................ 18
10.4 Landlord's Indemnification of Tenant........................................ 18
10.5 Tenant's Failure to Insure.................................................. 18
10.6 Limitation on Indemnities................................................... 18
10.7 Intent Concerning Insurance................................................. 19
ARTICLE 11 DAMAGE OR DESTRUCTION....................................................... 19
11.1 Tenantable Within 270 Days.................................................. 19
11.2 Not Tenantable Within 270 Days.............................................. 19
11.3 Building Substantially Damaged.............................................. 19
11.4 Insufficient Proceeds....................................................... 20
11.5 Landlord's Repair Obligations............................................... 20
11.6 Rent Apportionment.......................................................... 20
11.7 Exclusive Casualty Remedy................................................... 21
ARTICLE 12 EMINENT DOMAIN.............................................................. 21
12.1 Termination of Lease........................................................ 21
12.2 Landlord's Repair Obligations............................................... 21
12.3 Tenant's Participation...................................................... 21
12.4 Exclusive Taking Remedy..................................................... 21
ARTICLE 13 TRANSFERS................................................................... 22
13.1 Restriction on Transfers.................................................... 22
13.1.1 General Prohibition................................................. 22
13.1.2 Transfers to Affiliates............................................. 22
13.2 Costs....................................................................... 22
ARTICLE 14 DEFAULTS; REMEDIES.......................................................... 22
14.1 Events of Default........................................................... 22
14.1.1 Failure to Pay Rent................................................. 23
14.1.2 Failure to Perform.................................................. 23
14.1.3 [Reserved].......................................................... 23
14.1.4 Other Defaults...................................................... 23
14.1.5 Notice Requirements................................................. 23
14.2 Remedies.................................................................... 23
14.2.1 Termination of Tenant's Possession; Re-entry and Reletting Right.... 23
14.2.2 Termination of Lease................................................ 24
ii
14.2.3 Self Help........................................................... 24
14.3 Costs....................................................................... 24
14.4 Waiver and Release by Tenant................................................ 24
14.5 Landlord's Default.......................................................... 24
14.6 No Waiver................................................................... 25
14.7 Parties' Remedies........................................................... 25
ARTICLE 15 CREDITORS; ESTOPPEL CERTIFICATES............................................ 25
15.1 Subordination............................................................... 25
15.2 Attornment.................................................................. 26
15.3 Mortgagee Protection Clause................................................. 26
15.4 Estoppel Certificates....................................................... 26
15.4.1 Contents............................................................. 26
ARTICLE 16 TERMINATION OF LEASE........................................................ 26
16.1 Surrender of Premises....................................................... 26
16.2 Holding Over................................................................ 27
ARTICLE 17 ADDITIONAL PROVISIONS....................................................... 27
17.1 Initial Improvements........................................................ 27
17.1.1 Landlord's Improvements............................................. 27
17.1.2 Improvement Allowance............................................... 28
17.1.3 Tenant's Improvements............................................... 28
17.1.4 Property Manager/Site Superintendent................................ 29
17.1.5 Space Plan.......................................................... 29
17.1.6 Working Drawings and Specifications................................. 29
17.1.7 Changes to Final Plans.............................................. 30
17.1.8 Substantial Completion.............................................. 30
17.1.9 Failure to Complete Construction.................................... 30
17.1.10 Tenant Delays....................................................... 30
17.1.11 Punch List.......................................................... 31
17.1.12 Construction Warranty............................................... 31
17.1.13 Representatives..................................................... 32
17.1.14 Delivery in Segments................................................ 32
17.2 Special Termination Option.................................................. 33
17.3 Renewal Terms............................................................... 33
17.3.1 Renewal Term Basic Rent............................................. 34
17.3.2 Appraisal Procedure................................................. 34
17.3.3 Tenant's Right Not to Renew......................................... 35
17.4 [Reserved].................................................................. 35
17.5 [Reserved].................................................................. 35
17.6 Rights of First Opportunity and Right of First Refusal to Purchase.......... 35
17.7 [Reserved].................................................................. 36
17.8 Parking Allotment........................................................... 36
17.9 [Reserved].................................................................. 37
17.10 Hazardous Materials......................................................... 37
17.11 Signs....................................................................... 37
17.11.1 Building Standard Signs............................................. 37
17.11.2 Other Permitted Signs............................................... 38
17.12 Security.................................................................... 38
17.13 Waiver of Landlord's Lien................................................... 38
17.14 Telecommunications Lines.................................................... 38
17.14.1 Landlord's Consent.................................................. 38
17.14.2 New Provider Installations.......................................... 39
17.15 Electric Utility Provider................................................... 39
17.16 Integration with Condominium................................................ 40
17.17 License for Satellite Equipment Site........................................ 40
17.18 Security Deposit............................................................ 41
17.18.1 General Requirements................................................ 41
iii
17.18.2 Cash Security Deposit............................................... 42
17.18.3 Letter of Credit / Security Deposit................................. 42
17.18.4 Pledged Securities / Security Deposit............................... 42
17.18.5 Reduction of Security Deposit....................................... 43
17.19 Special Contingency......................................................... 43
17.20 Disaster Recovery Plan...................................................... 43
ARTICLE 18 INSOLVENCY.................................................................. 44
ARTICLE 19 MISCELLANEOUS PROVISIONS.................................................... 44
19.1 Notices..................................................................... 44
19.2 Transfer of Landlord's Interest............................................. 44
19.3 Successors.................................................................. 45
19.4 Captions and Interpretation................................................. 45
19.5 Relationship of Parties..................................................... 45
19.6 Entire Agreement; Amendment................................................. 45
19.7 Severability................................................................ 45
19.8 Landlord's Limited Liability................................................ 45
19.9 Survival.................................................................... 45
19.10 Attorneys' Fees............................................................. 45
19.11 Brokers..................................................................... 46
19.12 Governing Law............................................................... 46
19.13 Time is of the Essence...................................................... 46
19.14 Joint and Several Liability................................................. 47
19.15 Barrier Code................................................................ 47
19.16 Tenant's Organization Documents; Authority.................................. 47
19.17 Provisions are Covenants and Conditions..................................... 47
19.18 Force Majeure............................................................... 47
19.19 Management.................................................................. 47
19.20 Financial Statements........................................................ 47
19.21 Quiet Enjoyment............................................................. 48
19.22 Short Form: Title Insurance................................................. 48
19.23 Confidentiality of Lease and Lease Matters.................................. 48
19.24 Construction of Lease and Terms............................................. 49
EXHIBITS:
Exhibit A Definitions
Exhibit B Site Plan
Exhibit C Floor Plans
Exhibit D Form of Commencement Date Memorandum
Exhibit E Building Rules
Exhibit F Landlord's Improvements
Exhibit G Tenant's Improvements Outline Specification
Exhibit H [Reserved]
Exhibit I Janitorial Specifications
Exhibit J HVAC Specifications
Exhibit K [Reserved]
Exhibit L Form of Letter of Credit
Exhibit M Form of Stock Pledge Agreement
Exhibit M Form of Custodial Agreement
iv
MULTI-TENANT OFFICE LEASE AGREEMENT
This Multi-tenant Office Lease Agreement is made and entered into as of
the Effective Date by and between OPUS UNION STATION, L.L.C., a Delaware limited
liability company, as Landlord, and XXXXXX.XXX, INC., a Delaware corporation, as
Tenant.
DEFINITIONS
Capitalized terms used in this Lease have the meanings ascribed to them
on the attached EXHIBIT A.
BASIC TERMS
The following Basic Terms are applied under and governed by the
particular section(s) in this Lease pertaining to the following information:
1. PREMISES: The entire Rentable Area, containing
approximately 249,970 square feet, and
located on the 1st floor through the
11th floor of the Opus Center South
Building on the Property. Each floor
of the Premises is depicted
approximately as shown on EXHIBIT C.
2. TERM:
INITIAL TERM: 10 Lease Years (120 months) (See
Section 1.2)
RENEWAL TERMS: Two 5 year options (See Section 17.3).
TERMINATION RIGHT: See Section 17.2.
3. DELIVERY DATE: February 1, 2001 (See Section 1.2)
OUTSIDE DELIVERY DATE: Either (a) May 1, 2001 if Landlord
receives a building permit from City
for the Landlord's Improvements on or
before December 31, 1999, or (b) if
said building permit is received after
December 31, 1999, 16 months after the
date Landlord receives from City a
Building permit for the Landlord's
Improvements (See Section 17.1.9).
LANDLORD TERMINATION OPTION: See Section 17.19.
4. BASIC RENT:
INITIAL TERM:
Months Annual Basic Rent Per Square Foot of Rentable Area
------ --------------------------------------------------
1 - 60 Floors 10 & 11
3 - 60 Floors 7, 8 & 9
5 - 60 Floors 4, 5 & 6
7 - 60 Floors 1, 2 & 3
61 - 120 Floors 10 & 11
61 - 120 Floors 7, 8 & 9
61 - 120 Floors 4, 5 & 6
61 - 120 Floors 1, 2 & 3
(See Sections 2.1 and 17.1.14)
RENEWAL TERMS: See Section 17.3.1.
5. INITIAL TENANT'S SHARE OF
OPERATING EXPENSES PERCENTAGE: 100% (See Section 3.7)
ESTIMATED OPERATING EXPENSES: $8.00 per square foot of Rentable Area
of the Premises
6. IMPROVEMENT ALLOWANCE: per square foot of Rentable Area in
the Premises.
7. CURRENT PROPERTY MANAGER/RENT Opus Union Station, L.L.C.
PAYMENT ADDRESS: 000 - 000xx Xxxxxx XX
Xxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
8. ADDRESS OF LANDLORD FOR NOTICES: Opus, L.L.C.
00000 Xxxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Attn: Legal Department
WITH A COPY TO: Property Manager, if different from
Landlord, at the address described in
a notice delivered to Tenant after the
Effective Date.
9. ADDRESS OF TENANT FOR NOTICES: Xxxxxx.xxx, Inc.
0000 00xx Xxx. Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Director, Global Real Estate
WITH A COPY TO: Xxxxxx.xxx, Inc.
0000 00xx Xxx. Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: General Counsel
10. BROKER: Washington Partners (Xx Xxxxxx)
Xxxxxx Xxxxxxx & Xxxxxx, Inc.
(See Section 19.11)
11. SECURITY DEPOSIT per square foot of Rentable Area
(See Section 17.18)
12. PARKING ALLOTMENT: Up to 1 parking stall per 1,000 square
feet of Rentable Area in the Premises,
a maximum of 15% of which may be
Executive Parking Stalls and the
balance of which will be Regular
Parking Stalls. (See Section 17.8)
2.
ARTICLE 1
LEASE OF PREMISES AND LEASE TERM
1.1 PREMISES.
Landlord has the right to acquire fee simple title to the Unit within
which Landlord will construct or cause to be constructed the Building. The Unit
is a condominium unit in Union Station Condominium.
In consideration of the mutual covenants this Lease describes, Landlord
leases the Premises to Tenant and Tenant leases the Premises from Landlord, upon
and subject to the terms, covenants and conditions set forth in this Lease. The
estimated Rentable Area of the Premises is the Rentable Area specified in the
Basic Terms. Prior to the Commencement Date, Landlord and Tenant will determine
jointly the Rentable Area of the Premises substantially in accordance with BOMA
Standards. If Landlord or Tenant cannot agree on the measurement of the
Premises, the parties will appoint a neutral architect to resolve the dispute.
The architect's fees will be divided between Landlord and Tenant. At the request
of either party, after Landlord acquires fee simple title to the Unit, the
parties will re-execute and reconfirm this Lease.
1.2 TERM, DELIVERY AND COMMENCEMENT.
1.2.1 COMMENCEMENT AND EXPIRATION OF TERM.
The Term of this Lease is the period stated in the
Basic Terms. The Term commences on the Commencement Date and unless earlier
terminated in accordance with the terms and conditions of this Lease, expires on
the last day of the last calendar month of the Term. SEE SECTION 17.2.
1.2.2 TENDER OF POSSESSION.
Landlord will use commercially reasonable efforts to
tender possession of the Premises to Tenant on or before the Delivery Date,
subject to any extension of such date under Section 19.18. If Landlord is unable
to tender possession of the Premises to Tenant on or before the Delivery Date
because of Force Majeure or Tenant Delay, then, except as provided in Section
17.1.9, this Lease remains in full force and effect and Landlord is not liable
to Tenant for any resulting loss or damage; provided, however, except to the
extent the delay is caused by Tenant Delay of more than 15 days, the
Commencement Date and Rent Commencement Date will not be postponed. If the
Commencement Date has not occurred on or before July 30, 2004, this Lease will
automatically terminate without notice and be of no force or effect. SEE SECTION
17.1.14.
1.2.3 COMMENCEMENT DATE MEMORANDUM.
Within a reasonable time after the Commencement Date,
Landlord will execute and deliver to Tenant the Commencement Date Memorandum
with all blanks relating to dates completed. Tenant, within 10 days after
receipt from Landlord of an accurate Commencement Date Memorandum, will execute
and deliver it to Landlord. Tenant's failure to execute and deliver to Landlord
the Commencement Date Memorandum does not affect any obligation of Tenant under
this Lease.
1.2.4 EARLY ACCESS.
Tenant will not occupy the Premises for the Permitted
Use before Substantial Completion without Landlord's prior written consent.
Notwithstanding the foregoing, Landlord will give Tenant access to the Premises
not less than 30 days prior to the Delivery Date for the sole purpose of
installing Tenant's furniture, cabling, fixtures and equipment in the Premises,
provided that Tenant will comply with and observe all terms and conditions of
this Lease (other than Tenant's obligation to pay Rent) during the early
occupancy period. SEE SECTION 17.1.14.
3.
1.3 EFFECT OF ACCEPTANCE.
Subject to the Warranty Terms, Tenant's acceptance of the Premises
conclusively establishes that Landlord completed the Improvements as required by
this Lease in a manner satisfactory to Tenant. The Warranty Terms provide Tenant
with its sole and exclusive remedies for Landlord's incomplete or defective
construction of the Improvements. Tenant's failure to strictly comply with the
Warranty Terms with respect to any item included as part of the Improvements
constitutes Tenant's waiver and release of any and all rights, benefits, claims
or warranties available to Tenant under this Lease, at law or in equity in
connection with each such item. SEE SECTION 17.1.14.
ARTICLE 2
RENTAL AND OTHER PAYMENTS
2.1 BASIC RENT.
Tenant will pay Basic Rent in monthly installments to Landlord, in
advance, without notice, and, without setoff or deduction (except as may be
expressly provided in this Lease), commencing on the Rent Commencement Date and
continuing on the first day of each and every calendar month after the Rent
Commencement Date during the Term. Tenant will make all Basic Rent payments to
Property Manager at the address specified in the Basic Terms or at such other
place or in such other manner as Landlord may from time to time designate in
writing. Tenant will make all Basic Rent payments without Landlord's previous
demand, invoice or notice for payment. Landlord and Tenant will prorate, on a
per diem basis, Basic Rent for any partial month within the Term.
2.2 ADDITIONAL RENT.
Article 3 of this Lease requires Tenant to pay certain Additional Rent
pursuant to estimates Landlord delivers to Tenant. Tenant will make all payments
of estimated Additional Rent in accordance with Sections 3.3 and 3.4 without
deduction or offset (except as may be expressly provided in this Lease) and
without Landlords previous demand, invoice or notice for payment. Tenant will
pay all other Additional Rent described in this Lease that is not estimated
under Sections 3.3 and 3.4 within 30 days after receiving Landlord's invoice for
such Additional Rent. Tenant will make all Additional Rent payments to the same
location and, except as described in the previous sentence, in the same manner
as Tenant's Basic Rent payments.
2.3 DELINQUENT RENTAL PAYMENTS.
If Tenant does not pay any installment of Basic Rent or any Additional
Rent or other payment due under this Lease within five days after notice of
nonpayment from Landlord (provided that no such notice will be required more
than two times in any twelve-month period) or, if no notice is required under
this Lease, then within 8 days after the date due, Tenant will pay Landlord an
additional amount equal to interest on the delinquent payment calculated at the
Maximum Rate from the date when the payment is due through the date the payment
is made. If, however, Tenant does not pay any installment of Basic Rent or any
Additional Rent within five Business Days after the date the payment is due,
more than two times in any twelve month period, then, in lieu of interest,
Tenant will pay Landlord a late payment charge equal to 5% of the amount of the
delinquent payment. Landlord's right to such compensation for the delinquency is
in addition to all of Landlord's rights and remedies under this Lease, at law or
in equity.
2.4 INDEPENDENT OBLIGATIONS.
Notwithstanding any contrary term or provision of this Lease, Tenant's
covenant and obligation to pay Rent is independent from any of Landlord's
covenants, obligations, warranties or representations in this Lease.
ARTICLE 3
OPERATING EXPENSES
4.
3.1 PAYMENT OF OPERATING EXPENSES.
Tenant will pay, as Additional Rent and in the manner this Article 3
describes, Tenant's Share of Operating Expenses for each and every calendar year
of the Term. Landlord will prorate Tenant's Share of Operating Expenses for the
calendar year in which the Lease commences or terminates as of the Commencement
Date or termination date, as applicable, on a per diem basis based on the number
of days of the Term within such calendar year.
3.2 ESTIMATION OF TENANT'S SHARE OF OPERATING EXPENSES.
Landlord will deliver to Tenant not later than April 1 in each calendar
year a written estimate of the following for that calendar year of the Term: (a)
Operating Expenses, (b) Tenant's Share of Operating Expenses Percentage and (c)
the annual and monthly Additional Rent attributable to Tenant's Share of
Operating Expenses.
3.3 PAYMENT OF ESTIMATED TENANT'S SHARE OF OPERATING EXPENSES.
Tenant will pay the amount Landlord estimates as Tenant's Share of
Operating Expenses under Section 3.2 for each and every calendar year of the
Term in equal monthly installments, in advance, commencing on the Rent
Commencement Date and continuing on the first day of each and every month during
the Term. If Landlord has not delivered the estimates to Tenant by the first day
of January of the applicable calendar-year, Tenant will continue paying Tenant's
Share of Operating Expenses based on Landlord's estimates for the previous
calendar year. When Tenant receives Landlord's estimates for the current
calendar year, Tenant will pay the estimated amount (less amounts Tenant paid to
Landlord in accordance with the immediately preceding sentence) in equal monthly
installments over the balance of such calendar year, with the number of
installments being equal to the number of full calendar months remaining in such
calendar year.
3.4 RE-ESTIMATION OF OPERATING EXPENSES.
Landlord may re-estimate Operating Expenses from time to time during
the Term in but not more than twice in any calendar year. In such event,
Landlord will re-estimate the monthly Additional Rent attributable to Tenant's
Share of Operating Expenses to an amount sufficient for Tenant to pay the
re-estimated monthly amount over the balance of the calendar year. Landlord will
notify Tenant of the re-estimate and Tenant will pay the re-estimated amount in
the mariner provided in the last sentence of Section 3.3.
3.5 CONFIRMATION OF TENANT'S SHARE OR OPERATING EXPENSES.
After the end of each calendar year within the Term, Landlord will
determine the actual amount of Operating Expenses and Tenant's Share of
Operating Expenses for the expired calendar year and deliver to Tenant a written
statement of such amounts. If Tenant paid less than the actual amount of
Tenant's Share of Operating Expenses specified in the statement, Tenant will pay
the difference to Landlord as Additional Rent in the manner Section 2.2
describes. If Tenant paid more than the actual amount of Tenant's Share of
Operating Expenses specified in the statement, Landlord, will either (a) if the
Lease has ended, refund the excess amount to Tenant within 30 days, or (b) if
the Lease is still in effect, credit the excess amount against Tenant's next due
monthly installment or installments of estimated Additional Rent. If Landlord is
delayed in delivering such statement to Tenant, such delay does not constitute
Landlord's waiver of Landlord's rights under this section; notwithstanding the
foregoing, if Landlord has not delivered such statement in the calendar year
following the year for which the statement is required to be given, then
Landlord will be deemed to have waived the right to recover any short fall in
Tenant's payments of Operating Expenses for the year in question.
3.6 TENANT'S INSPECTION AND AUDIT RIGHTS.
If no Event of Default exists and Tenant questions Landlord's
determination of the actual amount of Operating Expenses or Tenant's Share of
Operating Expenses for a calendar year and Tenant delivers to Landlord written
notice within 180 days after Landlord's delivery of the statement of such amount
under Section 3.5, Tenant, at its sole cost and expense, upon prior written
notice and during regular business hours at a time and place
5.
reasonably acceptable to Landlord (which will be the location within the
boundaries of King County, Washington, where Landlord or Property Manager
maintains the applicable records), may cause a certified public accountant
reasonably acceptable to Landlord to audit Landlord's records relating to the
disputed amounts. The foregoing audit right is personal to Tenant, and may not
be exercised by any assignee or subtenant of Tenant other than an entity to
which Tenant has assigned all or any of its interest in this Lease as permitted
by Section 13.1.2; provided, however, that at the time of any such permitted
assignment the instrument of assignment and assumption delivered to Landlord
pursuant to Section 13.1.2 will state that either: (a) Tenant has retained all
of Tenant's rights under this section, or (b) Tenant has assigned to the
permitted assignee all of Tenant's rights under this section. Tenant will not
object to Landlord's determination of Operating Expenses or Tenant's Share of
Operating Expenses unless Tenant completes the audit within 60 days after the
date Tenant delivers its notice to Landlord under this section. If the audit
shows that the amount Landlord charged Tenant for Tenant's Share of Operating
Expenses was greater than the amount this Article 3 obligates Tenant to pay,
Landlord will refund the excess amount to Tenant, together with interest on the
excess amount at the Maximum Rate (computed from the date Tenant delivers its
dispute notice to Landlord) within 10 days after Landlord receives a copy of the
audit report. If the audit shows that the amount Landlord charged Tenant for
Tenant's Share of Operating Expenses was less than the amount this Article 3
obligates Tenant to pay, Tenant will pay to Landlord, as Additional Rent, the
difference between the amount Tenant paid and the amount determined in the
audit. Pending resolution of any audit under this section, Tenant will continue
to pay to Landlord the estimated amounts of Tenant's Share of Operating Expenses
in accordance with Sections 3.3 and 3.4. Tenant will keep all information it
obtains in any audit strictly confidential and may only use such information for
the limited purpose this section describes and for Tenant's own account. If
Tenant's audit discloses that Tenant was overcharged by more than three percent
(3%), Landlord will reimburse Tenant reasonable for the cost of the audit but
not more than $3,000, which amount will be increased $125.00 per annum on each
anniversary of the Commencement Date. If Tenant does not perform an audit,
Landlord's written statement delivered pursuant to Section 3.5 will be final and
binding on Landlord and Tenant 180 days after Landlord's delivery of the
statement. If Tenant does perform an audit, the audit as resolved will be final
and binding on Landlord and Tenant.
3.7 AMENDMENTS TO TENANT'S SHARE OF OPERATING EXPENSES PERCENTAGE.
Tenant's Share of Operating Expenses Percentage will be a percentage
equal to a fraction, the numerator of which is the Rentable Area of the Premises
and the denominator of which is the Rentable Area of the Building as determined
pursuant to Section 1.1.
3.8 PERSONAL PROPERTY TAXES.
Tenant, prior to delinquency, will pay all taxes charged against
Tenant's trade fixtures and other personal property. Tenant will use all
reasonable efforts to have such trade fixtures and other personal property taxed
separately from the Property. If any of Tenant's trade fixtures and other
personal property are taxed with the Property, Tenant will pay the taxes
attributable to Tenant's trade fixtures and other personal property to Landlord
as Additional Rent.
3.9 RIGHT TO CONTEST PROPERTY TAXES.
Landlord is not obligated to but may contest the amount or validity, in
whole or in part, of any Property Taxes. Landlord's contest will be at
Landlord's sole cost and expense, except that if Property Taxes are reduced (or
if a proposed increase is avoided or reduced) because of Landlord's contest,
Landlord may include in its computation of Property Taxes the costs and expenses
Landlord incurred in connection with the contest, including, but not limited to,
reasonable attorney's fees, up to the amount of any Property Tax reduction
Landlord realized from the contest or any Property Tax increase avoided or
reduced in connection with the contest, as the case may be.
If Landlord does not contest property taxes, then Tenant at its sole
cost and expense may, by appropriate legal proceedings conducted in good faith
and with due diligence, contest the amount or validity of Property Taxes if: (a)
the proceedings suspend the collection of the Property Taxes from Landlord,
Tenant and the Property, unless Tenant will have furnished security as provided
in this paragraph; (b) Tenant will have furnished such security, if any, as may
be required in the proceedings to suspend the collection of the Property Taxes,
or otherwise will have furnished the security in an amount equal to 150% of the
amount of the Property Taxes being contested; and (c) Tenant will give Landlord
reasonable notice of, and information pertaining to, the contest. Tenant will
indemnify,
6.
protect and hold Landlord and the Property harmless from any lien or liability
with respect to any such contest. Tenant will also have the right to contest any
lien, encumbrance or charge against the Premises arising from work done or
materials provided to or for Tenant pursuant to the terms of this Section 3.9.
3.10 [RESERVED]
ARTICLE 4
USE
4.1 PERMITTED USE.
Tenant will not use the Premises for any purpose other than general
non-governmental office purposes, a data center, and uses incidental thereto
("Permitted Use"). Tenant will not use the Property or knowingly permit the
Premises to be used in violation of any Laws or in any manner that would (a)
violate any certificate of occupancy affecting the Building; (b) cause injury or
damage to the Building; or (c) constitute a public or private nuisance or waste.
Landlord represents and warrants that the Permitted Use does not violate local
zoning rules or any of the Permitted Encumbrances, including the condominium
documents pursuant to which the Unit was created.
4.2 [RESERVED]
4.3 INCREASED INSURANCE.
So long as Landlord has notified Tenant of any applicable restrictions
and such restrictions are not violated by the Permitted Use, Tenant will not do
in the Building or permit to be done on the Premises anything that will (a)
increase the premium of any insurance policy Landlord carries covering the
Premises or the Building; (b) cause a cancellation of or be in conflict with any
such insurance policy; or (c) result in any insurance company's refusal to issue
or continue any such insurance in amounts satisfactory to Landlord. Tenant, at
Tenant's sole cost and expense, will comply with all rules, orders, regulations
and requirements of insurers and of the American Insurance Association or any
other organization performing a similar function. Tenant will reimburse
Landlord, as Additional Rent, for any additional premium charges for such policy
or policies resulting from Tenant's failure to comply with the provisions of
this section.
4.4 LAWS/BUILDING RULES.
This Lease is subject and subordinate to all Laws. Except as provided
in the last paragraph of this Section 4.4, Tenant will, at Tenant's sole cost,
promptly comply with all Laws regarding the Premises or use or occupancy
thereof. A copy of the current Building Rules is attached to this Lease as
EXHIBIT E. Landlord may amend the Building Rules from time to time in Landlord's
sole discretion; provided, however, that the Building Rules shall at all times
be reasonable.
In the event of any inconsistency between the Lease and the Building
Rules, the Lease will prevail and control. Landlord will enforce the Rules and
Regulations in a non-discriminatory manner.
Landlord represents and warrants that the Building will be in
compliance with all material and applicable Federal, state and local laws,
ordinances, rules and regulations ("Laws and Requirements"). During the Term
Landlord will, at its sole cost and expense (subject however to Article 3),
comply with all future Laws and Requirements that may require structural
modifications or other capital improvements to be performed to the building and
the Premises unless such Laws and Requirements specifically apply solely by
reason of the Tenant's particular use of the Premises or relate solely to
Tenant's Improvements.
4.5 COMMON AREA.
Landlord grants Tenant the non-exclusive right, together with all other
occupants of the Building and their agents, employees and invitees, to use the
Common Area during the Term, subject to all Laws; provided, however,
7.
that at any time that Tenant occupies all of the Rentable Area of the Building,
it shall have the exclusive right to use the Common Area. Landlord, at
Landlord's sole and exclusive discretion, may (a) restrain unauthorized persons
from using the Common Area; (b) temporarily close any portion of the Common Area
(i) for repairs, improvements or Alterations, (ii) to discourage unauthorized
use, (iii) to prevent dedication or prescriptive rights, or (iv) for any other
reason Landlord deems sufficient in Landlord's reasonable judgment; (c) change
the shape and size of the Common Area; (d) add, eliminate or change the location
of any improvements located in the Common Area; and (e) impose and revise
Building Rules concerning use of the Common Area, including, but not limited to,
any parking facilities comprising a portion of the Common Area. Landlord's
rights under this Section 4.5 will be exercised at all times in a manner so as
(a) not to prevent, impair or materially alter access to the Premises, (b) to
minimize the interference with Tenant's business in the Premises and (c) to the
extent it is under Landlord's control, maintain reasonable ingress to and
ingress between the Premises and the Parking Garage.
ARTICLE 5
HAZARDOUS MATERIALS
5.1 COMPLIANCE WITH HAZARDOUS MATERIALS LAWS.
Tenant will not cause any Hazardous Material to be brought upon, kept
or used on the Property in a manner or for a purpose prohibited by or that could
result in liability under any Hazardous Materials Law. Tenant, at its sole cost
and expense, will comply with all Hazardous Materials Laws and prudent industry
practice relating to the presence, treatment, storage, transportation, disposal,
release or management of Hazardous Materials in, on, under or about the Union
Station Condominium the Tenant brings upon, keeps or uses on Union Station
Condominium and will notify Landlord of any and all Hazardous Materials Tenant
brings upon, keeps or uses on the Property (other than small quantities of
office cleaning or other office supplies as are customarily used by a tenant in
the ordinary course in a general office or call center facility). On or before
the expiration or earlier termination of this Lease, Tenant, at its sole cost
and expense, will completely remove from the Property (regardless whether any
Hazardous Materials Law requires removal), in compliance with all Hazardous
Materials Laws, all Hazardous Materials Tenant causes to be present in, on,
under or about the Property other than Hazardous Materials incorporated into
Improvements as a part of construction materials. Tenant will not take any
remedial action in response to the presence of any Hazardous Materials in on,
under or about the Property, nor enter into any settlement agreement, consent
decree or other compromise with respect to any Claims relating to or in any way
connected with Hazardous Materials in, on, under or about the Property, without
first notifying Landlord of Tenant's intention to do so and affording Landlord
reasonable opportunity to investigate, appear, intervene and otherwise assert
and protect Landlord's interest in the Property. See Section 17.10.
5.2 NOTICE OF ACTIONS.
Tenant will notify Landlord of any of the following actions affecting
Landlord, Tenant or the Property that result from or in any way relate to
Tenant's use of the Property immediately after receiving notice of the same: (a)
any enforcement, clean-up, removal or other governmental or regulatory action
instituted, completed or threatened against Tenant or Landlord under any
Hazardous Materials Law; (b) any Claim made or threatened by any person against
Tenant or Landlord relating to damage, contribution, liability, cost recovery,
compensation, loss or injury resulting from or claimed to result from any
Hazardous Material; and (c) any reports made by any person, including Tenant, to
any environmental agency relating to any Hazardous Material, including any
complaints, notices, warnings or asserted violations. Tenant will also deliver
to Landlord, as promptly as possible and in any event within five Business Days
after Tenant first receives or sends the same, copies of all Claims, reports,
complaints, notices, warnings or asserted violations relating to Hazardous
Materials Laws and to the Premises or Tenant's use of the Premises. Upon
Landlord's written request, Tenant will promptly deliver to Landlord
documentation reasonably acceptable to Landlord reflecting the legal and proper
disposal of all Hazardous Materials removed or to be removed from the Premises,
if such materials were in fact placed there by Tenant. All such documentation
will list Tenant or its agent as a responsible party and will not attribute
responsibility for any such Hazardous Materials to Landlord or Property Manager.
5.3 DISCLOSURE AND WARNING OBLIGATIONS.
8.
Tenant acknowledges and agrees that all reporting and warning
obligations required under Hazardous Materials Laws resulting from or in any way
relating to Tenant's use of the Premises or Property are Tenant's sole
responsibility, regardless whether the Hazardous Materials Laws permit or
require Landlord to report or warn.
5.4 INDEMNIFICATION.
Tenant releases and will indemnify, defend (with counsel reasonably
acceptable to Landlord), protect and hold harmless the Landlord Parties from and
against any and all Claims whatsoever to the extent arising or resulting from
the presence, treatment, storage, transportation, disposal, release or
management of Hazardous Materials in, on, under, upon or from the Union Station
Condominium (including, but not limited to, water tables and atmosphere) that
Tenant brings upon, keeps or uses on the Premises or Union Station Condominium.
Tenant's obligations under this section include, without limitation and whether
foreseeable or unforeseeable, (a) the costs of any required or necessary repair,
clean-up, detoxification or decontamination of the Union Station Condominium;
(b) the costs of implementing any closure, remediation or other required action
in connection therewith as stated above; and (c) consultants' fees, experts'
fees and response costs. The obligations of Tenant under this section survive
the expiration or earlier termination of this Lease.
Landlord releases, and will indemnify, defend (with counsel reasonably
acceptable to Tenant), protect and hold harmless the Tenant from and against any
and all Claims whatsoever to the extent arising or resulting (unless
constituting Claims for which Tenant is responsible pursuant to the first
paragraph of this Section 5.4), from the presence, treatment, storage,
transportation, disposal, release or management of Hazardous Materials in, on,
under, upon or from the Union Station Condominium (including, but not limited
to, water tables and atmosphere) resulting from or in any way related to the use
of the Property, but only to the extent that (i) the Hazardous Materials have
been brought onto or released upon Union Station Condominium by any of the
Landlord Parties, or (ii) pursuant to applicable Laws Landlord has a duty to
remove such Hazardous Materials from Union Station Condominium. Landlord's
obligations under this section include, without limitation and whether
foreseeable or unforeseeable, (a) the costs of any required or necessary repair,
clean-up, detoxification or decontamination of the Union Station Condominium;
(b) the costs of implementing any closure, remediation or other required action
in connection therewith as stated above; and (c) consultants' fees, experts'
fees and response costs. The obligations of Landlord under this section survive
the expiration or earlier termination of this Lease.
ARTICLE 6
SERVICES
6.1 LANDLORD'S OBLIGATIONS.
Landlord will provide the following services, the costs of which are
Operating Expenses:
6.1.1 JANITORIAL SERVICE.
Janitorial service in the Premises, five nights per week,
appropriate for a first class office building similar in construction, general
location, use, occupancy and design to the Building and in compliance with the
specifications for janitorial service attached hereto as EXHIBIT I (the
"Janitorial Specifications"), including cleaning, trash removal, necessary
dusting and vacuuming, maintaining towels, tissue and other restroom supplies
and such other work as is customarily performed in connection with nightly
janitorial services in office complexes similar in construction, location, use
and occupancy to the Property. Landlord will also provide periodic interior and
exterior window washing and cleaning and waxing of uncarpeted floors appropriate
for a first class office building similar in construction, general location,
use, occupancy and design to the Building
6.1.2 ELECTRICAL ENERGY.
Electrical energy to the Premises for lighting and for
operating office machines for general office use. Electrical energy will be
sufficient for Tenant to operate personal computers and other equipment of
similar low electrical consumption, but will not be sufficient for lighting in
excess of the standards established in EXHIBIT F.
9.
Tenant will not use any equipment requiring electrical energy in excess of the
above standards without receiving Landlord's prior written consent, which
consent Landlord will not unreasonably withhold but may condition on Tenant
paying all costs of installing the equipment and facilities necessary to furnish
such excess energy and an amount equal to the average cost per unit of
electricity for the Building applied to the excess use as reasonably determined
either by an engineer selected by Landlord or by submeter installed at Tenant's
expense. Landlord will replace all lighting bulbs, tubes, ballasts and starters
within the Premises at Tenant's sole cost and expense unless the costs of such
replacement are included in Operating Expenses. If such costs are not included
in Operating Expenses, Tenant will pay such costs as Additional Rent.
6.1.3 HEATING, VENTILATION AND AIR CONDITIONING.
During Business Hours, heating, ventilation and air
conditioning to the Premises sufficient to maintain comfortable temperatures in
the Premises in accordance with the HVAC Specifications attached hereto as
EXHIBIT J. During other times, Landlord will provide heat and air conditioning
upon Tenant's request. Tenant will pay Landlord, as Additional Rent, for such
extended service on an hourly basis at the rates Landlord establishes from time
to time for its costs of providing such services without markup. Landlord will
provide air conditioning to the Premises based on standard lighting and general
office use only.
6.1.4 WATER.
Hot and cold water from standard building outlets for
lavatory, restroom and drinking purposes.
6.1.5 ELEVATOR SERVICE.
Elevator service to be used by Tenant in common with other
tenants. Landlord may restrict Tenant's use of elevators for freight purposes to
the freight elevator and to hours Landlord reasonably determines but at no
special use charge to Tenant. Landlord may limit the number of elevators in
operation at times other than Business Hours.
6.2 TENANT'S OBLIGATIONS.
Tenant is solely responsible for paying directly to the applicable
utility companies, prior to delinquency, all separately metered or separately
charged utilities, if any, to the Premises or to Tenant. Such separately metered
or charged amounts are not Operating Expenses. Except as provided in Sections
6.1 and 17.1, Tenant will also obtain and pay for all other utilities and
services Tenant requires with respect to the Premises, but Tenant will not be
required to pay hook-up and connection charges for basic utility service to the
Building.
6.3 OTHER PROVISIONS RELATING TO SERVICES.
No interruption in, or temporary stoppage of, any of the services this
Article 6 describes is to be deemed an eviction or disturbance of Tenant's use
and possession of the Premises, nor does any interruption or stoppage relieve
Tenant from any obligation this Lease describes, render Landlord liable for
damages or entitle Tenant to any Rent abatement; provided, however, if such
interruption or stoppage prevents Tenant from engaging in the Permitted Use at
all or any part of the Premises for 4 consecutive days, then Annual Basic Rent
will be abated in proportion to the portion of the Premises not usable for the
Permitted Use from and after the expiration of said fourteen-day period until
the earlier to occur of (i) the restoration of the furnishing of such utility or
other service to such portion of the Premises or (ii) the date on which such
interruption no longer prevents Tenant from engaging in the Permitted Use at
such portion of the Premises. Anything herein to the contrary notwithstanding,
there will be no such abatement of rent if either (a) Landlord's inability to
provide such services is caused by misuse or neglect of Tenant or Tenant's
agents or employees, or (b) the interrupted or stopped service or utility has
been provided by or through an alternative telecommunication company selected by
Tenant pursuant to Section 17.14. Landlord is not required to provide any heat,
air conditioning, electricity or other service in excess of that permitted by
voluntary or involuntary governmental guidelines or other Laws. Subject to
Section 17.14.2 Landlord has the exclusive right and discretion to select the
provider of any service to the Property and to determine whether the Premises or
any other portion of
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the Property may or will be separately metered or separately supplied. Landlord
reserves the right, from time to time, to make reasonable and non-discriminatory
modifications to the above standards for utilities and services.
6.4 TENANT DEVICES.
Tenant will not, without Landlord's prior written consent, use any
apparatus or device in or about the Premises that causes substantial noise, odor
or vibration. Tenant will not connect any apparatus or device to electrical
current or water except through the electrical and water outlets Landlord
installs in the Premises.
ARTICLE 7
MAINTENANCE AND REPAIR
7.1 LANDLORD'S OBLIGATIONS.
Landlord will, in accordance with the standards of first class office
buildings, repair and maintain and keep in good order, condition and repair: (a)
the foundations, exterior walls and roof of the Building; and (b) the
electrical, mechanical, plumbing, heating and air conditioning systems,
facilities and components located in the Building and used in common by all
tenants of each of the Building. Notwithstanding the foregoing, items located in
the Premises serving only the Premises which are part of the base building
systems will be maintained by Landlord. Landlord will also maintain and repair
Common Area (subject to all other terms and conditions of this Lease relating to
Common Area) and the windows, doors, plate glass and the exterior surfaces of
walls that are adjacent to Common Area. Landlord's repair and maintenance costs
under this Section 7.1 are Operating Expenses unless otherwise specifically
excluded by this Lease. Neither Basic Rent nor Additional Rent will be reduced
(except as set forth in Section 6.3), nor will Landlord be liable, for loss or
injury to or interference with Tenant's property, profits or business arising
from or in connection with Landlord's performance of its obligations under this
section.
7.2 TENANT'S OBLIGATIONS.
7.2.1 MAINTENANCE OF PREMISES.
Except as otherwise specifically provided in this Lease,
Landlord is not required to furnish any services or facilities, or to make any
repairs or Alterations, in, about or to the Premises or the Property. Except as
specifically described in Section 7.1, Tenant assumes the full and sole
responsibility for the repair, replacement and maintenance in the Premises.
Except as specifically described in Section 7.1, Tenant, at Tenant's sole cost
and expense, will keep and maintain the Premises (including, but not limited to,
all non-structural interior portions, systems and equipment, interior surfaces
of exterior walls; interior moldings, partitions and ceilings, and interior
electrical, lighting and plumbing fixtures) in good order, condition and repair,
reasonable wear and tear and damage from casualties not required to be repaired
by Tenant excepted. Tenant will keep the Premises in a neat and sanitary
condition and will not commit any nuisance or waste in, on or about the Premises
or the Property. If Tenant damages or injures the Common Area or any part of the
Property other than the Premises, Landlord will repair the damage and Tenant
will pay Landlord for all uninsured costs and expenses of Landlord in connection
with the repair as Additional Rent. Tenant is solely responsible for and, to the
fullest extent allowable under the Laws, will release and indemnify, protect and
defend Landlord against (with counsel reasonably acceptable to Landlord) and
hold Landlord harmless from, the cost of repairing, and any Claims resulting
from, any penetrations or perforations of the roof or exterior walls or floors
of the Building Tenant causes. Tenant will maintain the Premises in a
first-class and fully operative condition. Tenant's repairs will be at least
equal in quality and workmanship to the original work and Tenant will make the
repairs in accordance with all Laws.
7.2.2 ALTERATIONS REQUIRED BY LAWS.
If any governmental authority requires any Alteration to the
Building or the Premises as a result of Tenant's particular use of the Premises
or relating solely to Tenant's Improvements or as a result of any Alteration to
the Premises made by or on behalf of Tenant, or if Tenant's particular use of
the Premises subjects Landlord or
11.
the Property to any obligation under any Laws, Tenant will pay the cost of all
such Alterations or the cost of compliance, as the case may be. If any such
Alterations are Structural Alterations, Landlord will make the Structural
Alterations; provided, however, that Landlord may require Tenant to deposit with
Landlord an amount sufficient to pay the cost of the Structural Alterations
(including, without limitation, reasonable overhead and administrative costs).
If the Alterations are not Structural Alterations, Tenant will make the
Alterations at Tenant's sole cost and expense in accordance with Article 8.
ARTICLE 8
CHANGES AND ALTERATIONS
8.1 LANDLORD APPROVAL.
Tenant will not make any Alterations to the Common Area. Tenant will
not make any other Alterations without Landlord's prior written consent, which
consent Landlord will not unreasonably withhold or delay; provided, however,
that Landlord may impose conditions upon its consent in its reasonable
discretion. Along with any request for Landlord's consent, Tenant will deliver
to Landlord plans and specifications for the Alterations and names and addresses
of all prospective contractors for the Alterations. If Landlord approves the
proposed Alterations, Tenant, before delivering or accepting delivery of any
materials to be used in connection with the Alterations, will deliver to
Landlord for Landlord's reasonable approval copies of all contracts, proof of
insurance required by Section 8.2, copies of any contractor safety programs,
copies of all necessary permits and licenses and such other information relating
to the Alterations as Landlord reasonably requests. Tenant will not commence the
Alterations before obtaining Landlord's approval of the foregoing. Landlord's
approval of plans and specifications for any Alterations will not be construed
to constitute a representation or warranty by Landlord as to compliance with
applicable Laws, as to the structural, engineering or other design of the
Premises or the Property or as to the quality or fitness of any materials used.
Tenant will construct all approved Alterations or cause all approved Alterations
to be constructed (a) promptly by a contractor Landlord approves in writing in
Landlord's sole discretion, (b) in a good and workmanlike manner, (c) in
compliance with all Laws, (d) in accordance with all orders, rules and
regulations of the Board of Fire Underwriters having jurisdiction over the
Premises and any other body exercising similar functions, and (e) in full
compliance with all of Landlord's rules and regulations applicable to third
party contractors, subcontractors and suppliers performing work at the Property.
Notwithstanding the foregoing, provided Tenant notifies Landlord 10
days prior to commencing any work permitted by this paragraph, Tenant will be
permitted to perform Alterations which are in keeping with the standards of the
Premises and do not materially or adversely affect the structural, electrical or
mechanical systems of the Premises or the Building and which do not cost more
than $50,000 for an individual change, and which do not in the aggregate cost
more than $150,000 per project, without the necessity of having to obtain
Landlord's consent but otherwise subject to all of the foregoing provisions of
this section except the third and fourth sentences and in clause (a) of the last
sentence of the first paragraph of this section. Each of the amounts set forth
in this paragraph will be adjusted on the first day of each Lease Year by the
change in the CPI for the calendar month two months before the first day of the
Lease Year, compared to the CPI for the month two months before the first
calendar month of the Term.
Within 30 days after substantially completing the installation of any
Alteration, whether the Alterations require Landlord's prior consent pursuant to
the foregoing of this section, Tenant will deliver to Landlord "as-built"
drawings showing all changes to the Premises or the Building.
8.2 TENANT'S RESPONSIBILITY FOR COST AND INSURANCE.
Tenant will pay the cost and expense of all Alterations, including,
without limitation, the reasonable charges of Landlord's engineering consultants
for engineering review of Tenant's plans, and for any painting, restoring or
repairing of the Premises or the Building the Alterations occasion. For projects
exceeding $150,000 in cost (which amount will be adjusted on the first day of
each Lease Year by the change in the CPI for the calendar month two months
before the first day of the Lease Year, compared to the CPI for the month two
months before the first calendar month of the Term), prior to commencing the
Alterations, Tenant will deliver the following to Landlord: (a) a certificate of
insurance evidencing builder's all risk insurance in an amount reasonably
established
12.
by Landlord; (b) a certificate of insurance evidencing commercial general
liability insurance insuring against construction related risks in at least the
form, amounts and coverages required of Tenant under Article 10, and (c) copies
of all applicable contracts and of all necessary permits and licenses. The
insurance policies described in clauses (a) and (b) of this section must name
Landlord, Landlord's lender (if any) and Property Manager as additional
insureds.
8.3 CONSTRUCTION OBLIGATIONS AND OWNERSHIP.
Landlord may inspect construction of the Alterations. Immediately after
completing any Alterations exceeding $100,000 in cost (which amount will be
adjusted on the first day of each Lease Year by the change in the CPI for the
calendar month two months before the first day of the Lease Year, compared to
the CPI for the month two months before the first calendar month of the Term),
Tenant will furnish Landlord with contractor affidavits and full and final lien
waivers covering all labor and materials expended and used in connection with
the Alterations. Tenant will remove any Alterations upon expiration or
termination of this Lease; provided, however, that unless Landlord, in its
written consent to proposed Alterations, states that upon expiration or
termination of this Lease, Landlord will require Tenant to remove those
Alterations, Landlord will not have the right to require removal thereof, and
provided further that Tenant will not be required to remove its initial Tenant
Improvements. All Alterations Tenant makes or installs (including all telephone,
computer and other wiring and cabling located within the walls of and outside
the Premises, but excluding Tenant's movable trade fixtures, furniture and
equipment) become the property of Landlord upon installation and, unless
Landlord requires Tenant to remove the Alterations in accordance with this
Section 8.3, Tenant will surrender the Alterations to Landlord upon the
expiration or earlier termination of this Lease at no cost to Landlord.
8.4 LIENS.
Tenant will keep the Property free from any mechanics', materialmens',
designers' or other liens arising out of any work performed, materials furnished
or obligations incurred by or for Tenant or any person or entity claiming by,
through or under Tenant. Tenant will notify Landlord in writing 30 days prior to
commencing any Alterations in order to provide Landlord the opportunity to
record and post notices of non-responsibility or such other protective notices
available to Landlord under the Laws. If any such liens are filed and Tenant
does not contest those liens in the manner set forth in Section 3.9, and does
not, within 15 days after such filing, release the same of record or provide
Landlord with a bond or other security satisfactory to Landlord protecting
Landlord and the Property against such liens, Landlord may, without waiving its
rights and remedies based upon such breach by Tenant and without releasing
Tenant from any obligation under this Lease, cause such liens to be released by
any means Landlord deems proper, including, but not limited to, paying the claim
giving rise to the lien or posting security to cause the discharge of the lien.
In such event, Tenant will reimburse Landlord, as Additional Rent, for all
amounts Landlord pays (including, without limitation, reasonable attorneys' fees
and costs).
8.5 INDEMNIFICATION.
To the fullest extent allowable under the Laws, Tenant releases and
will indemnify, protect, defend (with counsel reasonably chosen by Tenant's
insurer, or if there is no insurer, with counsel reasonably acceptable to
Landlord) and hold harmless the Landlord Parties and the Property from and
against any Claims or arising out of any Alterations or any other work
performed, materials furnished or obligations incurred by or for Tenant or any
person or entity claiming by, through or under Tenant except, however, such
Claims to the extent they arise from the negligence or willful misconduct of any
of the Landlord Parties.
ARTICLE 9
RIGHTS RESERVED BY LANDLORD
9.1 LANDLORD'S ENTRY.
Landlord and its authorized representatives may enter the Premises to:
(a) inspect the Premises; (b) show the Premises to prospective purchasers and
Mortgagees and, during the last nine (9) months of the Term (as it may
13.
be extended) to prospective tenants; (c) post notices of non-responsibility or
other protective notices available under the Laws; or (d) exercise and perform
Landlord's rights and obligations under this Lease. Landlord, in the event of
any emergency, may enter the Premises without notice to Tenant. In an emergency,
Landlord's entry into the Premises without prior notice is not to be construed
as a forcible or unlawful entry into, or detainer of, the Premises or as an
eviction of Tenant from all or any part of the Premises. Tenant will also permit
Landlord (or its designees) to install, use, maintain, replace and repair pipes,
cables, conduits, plumbing and vents, and telephone, electric and other wires or
other items, in, to and through the Premises if Landlord reasonably determines
that such activities are necessary to provide necessary services to another
tenant in the Building, or to cause any of the Building to comply with
applicable changes in Laws, provided Landlord will locate any such items in the
floor or in the plenum or in the mechanical or electrical spaces in the
Premises, and will otherwise take reasonable steps to minimize interference with
Tenant's business. Landlord will be entitled to have access to the Premises only
when accompanied by a representative of Tenant, and upon no less than 24 hours'
prior written notice specifying the purpose for the access and identifying by
name and business any persons other than Landlord who will accompany Landlord;
provided, however, that in the case of an emergency that gives rise to imminent
danger to persons or property, Landlord will give Tenant such notice as may be
practicable under the circumstances. Access by Landlord will be strictly in
accordance with the security and confidentiality requirements that Tenant may
impose from time to time, including, without limitation, a requirement that
persons other than Landlord having access to the Premises will sign and deliver
to Tenant a nondisclosure and confidentiality agreement in form and content
acceptable to Tenant. All information learned by or disclosed to Landlord with
respect to Tenant's business, and all information disclosed or discovered during
an entry by Landlord into the Premises, will be kept strictly confidential by
Landlord, Landlord's legal representatives, successor, assigns, servants and
agents, and will not be used (except for Landlord's confidential internal
purposes) or disclosed to others by Landlord or Landlord's legal
representatives, successors, assigns, servants or agents without the express
prior written consent of Tenant, which Tenant may grant, withhold or condition
in its sole and absolute discretion. At Tenant's request, Landlord will prevent
access to the Premises by any prospective purchaser or tenant or other visitor
whom Landlord intends to bring onto the Premises who is, or may reasonably be
suspected by Tenant to be or represent, a competitor of Tenant. In exercising
its right of entry, Landlord will not unreasonably interfere with the conduct of
Tenant's business operations on the Premises.
9.2 CONTROL OF PROPERTY.
Landlord reserves all rights respecting the Property and Premises not
specifically granted to Tenant under this Lease, including, without limitation,
the right to: (a) change the name of the Building; (b) designate and approve all
types of signs, window coverings, internal lighting and other aspects of the
Premises and its contents that may be visible from the exterior of the Premises;
(c) prohibit Tenant from installing vending or dispensing machines of any kind
in or about the Premises other than those Tenant installs in the Premises solely
for use by Tenant's employees; (e) close the Building after Business Hours,
except that Tenant and its employees and invitees may access the Premises after
Business Hours in accordance with such rules and regulations as Landlord may
prescribe from time to time for security purposes (it being understood and
agreed that Tenant will have access to the Premises 24 hours per day, seven days
per week and 365 days per year; (f) install, operate and maintain security
systems that monitor, by closed circuit television or otherwise, all persons
entering or leaving the Building; (g) subject to applicable limitations set
forth in Section 9.1, install and maintain pipes, ducts, conduits, wires and
structural elements in the Premises that serve other parts or other tenants of
the Building; and (h) retain and receive master keys or pass keys to the
Premises and all doors in the Premises. Notwithstanding the foregoing, or the
provision of any security-related services by Landlord, Landlord is not
responsible for the security of persons or property on the Property and Landlord
is not and will not be liable in any way whatsoever for any breach of security
not solely and directly caused by the negligence or willful misconduct of
Landlord, its agents or employees or any of the Landlord Parties.
9.3 LOCK BOX AGENT/RENT COLLECTION AGENT.
Landlord, from time to time, may designate a lock box collection agent
or other person to collect Rent. In such event, Tenant's payment of Rent to the
lock box collection agent or other person is deemed to have been made (a) as of
the date the lock box collection agent or other person receives Tenant's payment
(if the payment is not dishonored for any reason); or (b) if Tenant's payment is
dishonored for any reason, the date Landlord or Landlord's agent collects the
payment. Neither Tenant's payment of any amount of Rent to the lock box
collection agent or other person nor Landlord's or Landlord's agent's collection
of such amount if the payment is dishonored constitutes Landlord's waiver of any
default by Tenant in the performance of Tenant's obligations under this Lease
14.
or Landlord's waiver of any of Landlord's rights or remedies under this Lease.
If Tenant pays any amount to the lock box collection agent or other person other
than the actual amount due Landlord, then Landlord's or Landlord's agent's
receipt or collection of such amount does not constitute an accord and
satisfaction, Landlord is not prejudiced in collecting the proper amount due
Landlord and Landlord may retain the proceeds of any such payment, whether
restrictively endorsed or otherwise, and apply the same toward amounts due and
payable by Tenant under this Lease.
9.4 [RESERVED]
9.5 TELECOMMUNICATIONS.
9.5.1 LANDLORD'S RIGHTS.
Landlord may (but will not have the obligation to): (a)
install new Lines at the Building to serve Tenant and any other tenant(s) of the
Building; (b) create additional space for Lines at the Building; (c) reasonably
direct, monitor and/or supervise the installation, maintenance, replacement and
removal of, and the allocation and periodic re-allocation of available space (if
any) for, any Lines now or hereafter installed at the Building by Landlord,
Tenant or any other Person (but Landlord will have no right to monitor or
control the information transmitted through such Lines). Such rights will not be
in limitation of other rights that may be available to Landlord by Law or
otherwise. If Landlord exercises any such rights pursuant to Tenant's request,
Landlord may charge Tenant for the costs reasonably attributable to and approved
by Tenant, or may include those costs in Operating Expenses (such costs to
include, without limitation, costs for acquiring and installing Lines and risers
within the Building Telecommunication spine to accommodate new Lines and spare
Lines, any associated computerized system and software for maintaining records
of Line connections within the Building Telecommunication spine, costs for
actual work required to provide cable pair assignments and routine maintenance
of the Lines, third party management fees, and the fees of any consulting
engineers and other experts), if the benefit is proportionate to all tenants of
the Building.
9.5.2 LIMITED LIABILITY.
(a) Limitation of Responsibility. Tenant
acknowledges and agrees that all telephone and telecommunications
services desired by Tenant will be ordered and utilized at the sole
expense of Tenant. Landlord will have no responsibility for the
maintenance of Tenant's telecommunications equipment, including wiring,
nor for any other infrastructure to which Tenant's telecommunications
equipment may be connected. Tenant agrees that to the extent any such
service is interrupted, curtailed, or discontinued, Landlord will have
no obligation or liability with respect thereto other than for damages
in an amount not to exceed the actual cost of repair incurred on
account of the negligence or willful misconduct of Landlord, or its
contractors, agents, or employees or any of the Landlord Parties and it
will be the sole obligation of Tenant at its expense to obtain
substitute service.
(b) Limitation of Liability. Except to the
extent arising from the negligence or willful misconduct of Landlord or
Landlord's agents or employees or any of the Landlord Parties, Landlord
will have no liability for damages arising from, and Landlord does not
warrant that the Tenant's use of any Lines will be free from the
following (respectively, "Line Problems"): (a) any shortages, failures,
variations, interruption, disconnection, loss or damage caused by the
installation, maintenance, replacement, use or removal of Lines by or
for other tenants or occupants at the Building, by any failure of the
environmental conditions or the power supply for the Building to
conform to any requirements for the Lines or any associated equipment,
or any other problems associated with any Lines by any other cause; (b)
any failure of any Lines to satisfy Tenant's requirements; or (c) any
eavesdropping or wire-tapping by unauthorized parties. Under no
circumstances will any Line Problems be deemed an actual or
constructive eviction of Tenant, render Landlord liable to Tenant for
abatement of Rent (except as otherwise expressly provided in this
Lease), or relieve Tenant from performance of Tenant's obligations
under this Lease.
15.
9.6 ELECTROMAGNETIC FIELDS.
If Tenant, at any time, uses any Lines or equipment in, on or about the
Premises or the Building that may create an electromagnetic field exceeding
radiation limits for Class A and Class B computing devices as set forth in FCC
regulation Part 15 as now or hereafter amended, Landlord reserves the right to
require Tenant to take any and all steps necessary, up to and including removal
of all Lines and/or equipment causing the electromagnetic emissions, to reduce
radiation to within levels permitted by applicable Laws.
ARTICLE 10
INSURANCE
10.1 TENANT'S INSURANCE OBLIGATIONS.
Tenant, at all times during the Term and during any early occupancy
period, at Tenant's sole cost and expense, will maintain the insurance this
Section 10.1 describes.
10.1.1 LIABILITY INSURANCE.
Commercial general liability insurance (providing coverage at
least as broad as the current ISO form) with respect to the Premises and
Tenant's activities in the Premises and upon and about the Property, on an
"occurrence" basis, with a combined single limit of not less than $5,000,000 per
occurrence and general aggregate. Such insurance must include specific coverage
provisions or endorsements (a) for broad form contractual liability insurance
insuring Tenant's contractual obligations under this Lease; (b) naming Landlord
and Property Manager as additional insureds by an "Additional Insured - Managers
or Lessors of Premises" endorsement (or equivalent coverage or endorsement); (c)
waiving the insurer's subrogation rights against all Landlord Parties to the
extent reasonably available for such insurance; (d) providing Landlord with at
least 30 days prior notice of any cancellation; (e) expressly stating that
Tenant's insurance will be provided on a primary and non-contributory basis; (f)
providing that the insurer has a duty to defend all insureds under the policy
(including additional insureds); and (g) employer's liability and Washington
stop-gap coverage. If Tenant provides such liability insurance under a blanket
policy, the insurance must be made specifically applicable to the Premises and
this Lease on a "per location" basis.
10.1.2 PROPERTY INSURANCE.
At Tenant's option and not otherwise, property insurance
providing coverage at least as broad as the current ISO Special Form
("all-risks") policies in an amount not less than the full insurable replacement
cost of all of Tenant's trade fixtures and other personal property within the
Premises and including business income insurance covering at least nine months
loss of income from Tenant's business in the Premises. If Tenant provides such
property insurance under a blanket policy, the insurance must include "agreed
amount, no coinsurance" provisions.
10.1.3 OTHER INSURANCE.
Such other insurance as may be required by any Laws from time
to time or may reasonably be required by Landlord from time to time in
accordance with then-current industry standards. If insurance obligations
generally required of tenants in similar space in similar office buildings in
the area in which the Premises is located increase or otherwise change, Landlord
may likewise increase or otherwise change Tenant's insurance obligations under
this Lease to that which is generally being required by landlords of first class
office buildings and improvements similar in construction, general location,
use, occupancy and design to the Building. This section will not apply to the
insurance referred to in Section 10.1.2.
16.
10.1.4 MISCELLANEOUS INSURANCE PROVISIONS.
All of Tenant's insurance will be written by companies rated
at least A-VII in the most current Best's Key Rating Guide. Tenant will deliver
a certificate of insurance, (a) on or before the Commencement Date (and prior to
any earlier occupancy by Tenant), (b) not later than 10 days prior to the
expiration of any current policy or certificate, and (c) at such other times as
Landlord may reasonably request. If Landlord allows Tenant to provide evidence
of insurance by certificate, Tenant will deliver an XXXXX Form 27 certificate
and will attach or cause to be attached to the certificate copies of the
endorsements this Section 10.1 requires (including specifically, but without
limitation, the "additional insured" endorsement). Tenant's insurance must
permit releases of liability as provided in Section 10.1.5 and must provide for
waiver of subrogation to the extent required by this Lease.
10.1.5 TENANT'S WAIVER AND RELEASE OF CLAIMS AND
SUBROGATION.
To the extent not prohibited by the Laws, Tenant, on behalf of
Tenant and its insurers, waives, releases and discharges the Landlord Parties
from all Claims arising out of damage to or destruction of the Tenant's
Improvements or Tenant's trade fixtures, other personal property (including the
Equipment referred to in Section 17.17) or business, and any loss of use or
business interruption, occasioned by any fire or other casualty or occurrence
whatsoever (whether similar or dissimilar), regardless whether any such Claim
results from the negligence or fault of any Landlord Party or otherwise, and
Tenant will look only to Tenant's insurance coverage (regardless whether Tenant
maintains any such coverage) in the event of any such Claim. Except as provided
in Section 10.4, Tenant's Improvements, trade fixtures, other personal property
and all other property in Tenant's care, custody or control, is located at the
Property (including the Equipment referred to in Section 17.17) at Tenant's sole
risk. Except as provided in Section 10.4. Landlord is not liable for any damage
to such property or for any theft, misappropriation or loss of such property,
including by or resulting from the act or omission of any other tenant or
occupant of the Building. Tenant is solely responsible for providing such
insurance as may be required to protect Tenant, its employees and invitees
against any injury, loss, or damage to the property of Tenant or the property of
any other Person occupying any of the Premises occurring in the Premises or at
the Property, including, without limitation, any loss of business or profits
from any casualty or other occurrence at the Property.
10.1.6 NO LIMITATION.
Landlord's establishment of minimum insurance requirements is
not a representation by Landlord that such limits are sufficient and does not
limit Tenant's liability under this Lease in any manner.
10.2 LANDLORD'S INSURANCE OBLIGATIONS.
Landlord will (except for the optional coverages and endorsements
Section 10.2.1 describes) at all times during the Term maintain the insurance
this Section 10.2 describes. All premiums and other costs and expenses Landlord
incurs in connection with maintaining the insurance described in this Section
10.2 are Operating Expenses. Landlord's insurance must permit releases of
liability as provided in Section 10.2.3 and must provide for waiver of
subrogation to the extent required by this Lease.
10.2.1 PROPERTY INSURANCE.
Property insurance on the Building providing coverage at least
as broad as the current ISO Special Form ("all risks") policies in an amount not
less than the full insurable replacement cost of the Building, including, but
not limited to, coverage for windstorm, hail, explosion, vandalism, riot and
civil commotion. Landlord, at its option, may obtain such additional coverages
or endorsements as Landlord deems appropriate or necessary, including, without
limitation, insurance covering foundation, grading, excavation and debris
removal costs; business income and rent loss insurance, boiler and machinery
insurance, ordinance or laws coverage; earthquake insurance; flood insurance;
and other coverages. Landlord may maintain such insurance in whole or in part
under blanket policies. Such insurance will not cover or be applicable to any
property of Tenant within the Premises or otherwise located at the Property,
including property of third parties in Tenant's care, custody or control at the
Property.
10.2.2 LIABILITY INSURANCE.
17.
Commercial general liability insurance providing coverage at
least as broad as the current ISO form against Claims for bodily injury,
personal injury, and property damage occurring at the Property in commercially
reasonable amounts. Such liability insurance (a) will protect only Landlord and,
at Landlord's option, Landlord's lender and some or all of the Landlord Parties,
(b) does not replace or supplement the liability insurance this Lease obligates
Tenant to carry, and (c) shall waive the insurer's subrogation rights against
Tenant to the extent reasonably available for such insurance.
10.2.3 LANDLORD'S WAIVER AND RELEASE OF CLAIMS AND
SUBROGATION.
To the extent not expressly prohibited by the Laws, Landlord,
on behalf of Landlord and its insurers, waives, releases and discharges Tenant
from all Claims or demands whatsoever arising out of damage to or destruction of
the Property, personal property of Landlord or other parties, or business, and
any loss of use of the Property or business interruption, occasioned by any fire
or other casualty or occurrence whatsoever (whether similar or dissimilar),
regardless whether any such Claim or demand results from the negligence or fault
of Tenant, or otherwise, and Landlord will look only to Landlord's insurance
coverage (regardless whether Landlord maintains any such coverage) in the event
of any such Claim. Landlord's policy or policies of property insurance will
permit releases of liability as provided in this Section 10.2 and will provide
for waiver of subrogation as to tenants of the Property.
10.3 TENANT'S INDEMNIFICATION OF LANDLORD.
In addition to Tenant's other indemnification obligations in this Lease
and except as specifically set forth in Section 10.1 and/or Section 10.2.3,
Tenant, to the fullest extent allowable under the Laws, releases and will
indemnify, protect, defend (with counsel reasonably chosen by Tenant's insurer,
or if there is no insurer, with counsel reasonably acceptable to Landlord) and
hold harmless the Landlord Parties from and against all Claims arising from (a)
any breach or default by Tenant in the performance of any of Tenant's covenants
or agreements in this Lease, (b) any act, omission, negligence or misconduct of
Tenant and (c) any accident, injury, occurrence or damage in, about or to the
Premises and, to the extent caused by Tenant, the Property and/or Union Station
Condominium.
10.4 LANDLORD'S INDEMNIFICATION OF TENANT.
In addition to Landlord's other indemnification obligations in this
Lease, and except as set forth in Section 10.2 and/or the first sentence of
Section 10.1.5, Landlord, to the fullest extent allowable under the Laws,
releases and will indemnify, protect, defend (with counsel reasonably chosen by
Landlord's insurer or if there is no insurance, with counsel reasonably
acceptable to Tenant), and hold Tenant harmless from and against all Claims
arising from (a) any breach or default by Landlord in the performance of any of
Landlord's covenants or agreements under this Lease, (b) any act, omission,
negligence or misconduct of Landlord or any of the Landlord Parties and (c) any
accident, injury, occurrence or damage in, about or to the Common Area.
10.5 TENANT'S FAILURE TO INSURE.
Notwithstanding any contrary language in this Lease and any notice and
cure rights this Lease provides Tenant, if Tenant fails to provide Landlord with
evidence of insurance as required under Section 10.1 within a reasonable time
after Landlord's request, Landlord may assume that Tenant is not maintaining the
insurance Section 10.1 requires Tenant to maintain and Landlord may, but is not
obligated to, without further demand upon Tenant or notice to Tenant and without
giving Tenant any cure right or waiving or releasing Tenant from any obligation
contained in this Lease, obtain such insurance for Landlord's benefit. In such
event, Tenant will pay to Landlord, as Additional Rent, all costs and expenses
Landlord incurs obtaining such insurance. Landlord's exercise of its rights
under this section does not relieve Tenant from any default under this Lease.
10.6 LIMITATION ON INDEMNITIES.
In compliance with RCW 4.24.115 as in effect on the date of this Lease,
all provisions of this Lease pursuant to which a party agrees to indemnify
another party against liability for damages arising out of bodily injury
18.
to person or damage to property ("Damages") in connection with the construction,
alteration, repair, addition to, subtraction from, improvement to or maintenance
of any improvement attached to the Property ("Indemnities") will be limited by
the provisions of this Section 10.6. None of such Indemnities will apply to
Damages caused by or resulting from the sole negligence of the indemnitee, its
agents or employees. To the extent that any such Damages are caused by or result
from the concurrent negligence of (a) the indemnitee or its agents or employees
and (b) the indemnitor or its agents or employees, the Indemnities will apply
only to the extent of the indemnitor's negligence. If RCW 4.24.115 is hereafter
amended to eliminate or modify the limitations on indemnities set forth therein,
this Section 10.6 will automatically and without further act by either party be
deemed amended to remove any of the limitations contained in this Section 10.6
that are no longer required by then-applicable law. Landlord and Tenant have
specifically negotiated and specifically waive any provisions of any industrial
insurance act, including Title 51 of the Revised Code of Washington, or any
other employee benefit act which might otherwise operate to release or immunize
it from its obligations under this Section 10.
10.7 INTENT CONCERNING INSURANCE.
Risk of loss or damage for Claims subject to Section 10.1.5 or Section
10.2.3 will be born by the parties' respective insurance carriers and Landlord
and Tenant will look solely to and seek recovery only from their respective
insurance carriers in the event of a loss for which insurance is permitted or
required by this Lease in connection with such claims.
ARTICLE 11
DAMAGE OR DESTRUCTION
11.1 TENANTABLE WITHIN 270 DAYS.
Except as provided in Section 11.3, if fire or other casualty renders
the whole or any material part of the Premises untenantable and Landlord
determines (in Landlord's reasonable discretion) that it can make the Premises
tenantable within 270 days after the date of the casualty, then Landlord will
notify Tenant that Landlord will repair and restore the Building and the
Premises to as near their condition prior to the casualty as is reasonably
possible within the 270 day period (subject to delays caused by Tenant Delays or
Force Majeure). Landlord will provide the notice stating the estimate of time
required for repairs, within 30 days after the date of the casualty. In such
case, this Lease remains in full force and effect, but Basic Rent and Tenant's
Share of Operating Expenses for the period during which all or a part of the
Premises are untenantable xxxxx pro rata (based upon the Rentable Area of the
untenantable portion of the Premises as compared with the Rentable Area of the
entire Premises). Notwithstanding the foregoing, however, if Landlord fails to
complete the repair and restoration of the Building and the Premises within 90
days after expiration of the 270 day period established by Landlord pursuant to
this Section (subject to delays caused by Tenant Delays or Force Majeure),
Tenant may terminate this Lease by notice to Landlord at any time after
expiration of such 90 day period, which termination will be effective on the
date of Tenant's notice. SEE SECTION 17.20.
11.2 NOT TENANTABLE WITHIN 270 DAYS.
If fire or other casualty renders the whole or any material part of the
Premises untenantable or if the Building is damaged so that access and necessary
services cannot be provided to the Premises, and Landlord determines (in
Landlord's reasonable discretion) that it cannot make the Premises tenantable
and restore access and services within 270 days after the date of the casualty,
then Landlord will so notify Tenant within 30 days after the date of the
casualty and may, in such notice, terminate this Lease effective on the date of
Landlord's notice. If Landlord does not terminate this Lease as provided in this
Section, Tenant may terminate this Lease by notifying Landlord within 30 days
after the date of Landlord's notice, which termination will be effective on the
date of Tenant's notice. Basic Rent and Tenant's Share of Operating Expenses
will xxxxx from the date of the casualty according to the formula set forth in
Section 11.1.
11.3 BUILDING SUBSTANTIALLY DAMAGED.
19.
Notwithstanding the terms and conditions of Section 11.1, if the
Building is damaged or destroyed by fire or other casualty (regardless whether
the Premises is affected) and the damage reduces the value of the Building by
more than 50% (as Landlord reasonably determines value before and after the
casualty), regardless whether Landlord determines (in Landlord's reasonable
discretion) that it can make the Premises tenantable within 270 days after the
date of the casualty, then Landlord, at Landlord's option, by notifying Tenant
within 30 days after the casualty, may terminate this Lease effective on the
date of Landlord's notice. Basic Rent and Tenant's Share of Operating Expenses
will xxxxx from the date of the casualty according to the formula set forth in
Section 11.1.
11.4 INSUFFICIENT PROCEEDS.
Notwithstanding any contrary language in this Article 11, if this
Article 11 obligates Landlord to repair damage to the Premises or Building
caused by fire or other casualty and Landlord does not receive sufficient
insurance proceeds (excluding any deficiency caused by the amount of any policy
deductible or the failure of Landlord to procure the insurance coverages
required in Section 10.2.1) to make the repair and the cost of the repair not
covered by insurance proceeds is in excess of 15% of the insurable value of the
Building immediately before the loss, or if Landlord's lender does not allow
Landlord to use sufficient proceeds to make the repair, and the cost of the
repair not covered by proceeds made available by Landlord's lender is in excess
of 15% of the insurable value of the Building immediately before the loss, then
Landlord, at Landlord's option, by notifying Tenant within 30 days after the
casualty, may terminate this Lease effective on the date of Landlord's notice.
Landlord's notice of termination, however, shall not be effective if, within 10
days of receipt of Landlord's notice, Tenant delivers irrevocable notice to
Landlord that Tenant will pay Landlord, as Additional Rent, at such time and to
such account as are designated by or acceptable to Landlord's lender, all such
amounts in excess of 15% of the insurable value of the Building immediately
before any such loss that are necessary to make the repair.
11.5 LANDLORD'S REPAIR OBLIGATIONS.
If this Lease is not terminated under Sections 11.2 through 11.4
following a fire or other casualty, then Landlord will repair and restore the
Premises and the Building to as near their condition prior to the fire or other
casualty as is reasonably possible with all commercially reasonable diligence
and speed (subject to delays caused by Tenant Delay or Force Majeure but also
subject to Tenant's right to terminate in Section 11.1) and Basic Rent and
Tenant's Share of Operating Expenses for the period during which all or a part
of the Premises are untenantable will xxxxx pro rata (based upon the Rentable
Area of the untenantable portion of the Premises as compared with the Rentable
Area of the entire Premises). In no event is Landlord obligated to repair or
restore any Alterations or Tenant's Improvements that are not covered by
Landlord's insurance, any special equipment or improvements installed by Tenant,
any personal property, or any other property of Tenant. Landlord will, if
necessary, equitably reduce Tenant's Share of Operating Expenses Percentage,
subject to Section 3.7, to account for any reduction in the Rentable Area of the
Premises or Building resulting from a casualty.
11.6 RENT APPORTIONMENT.
If either Landlord or Tenant terminates this Lease under this Article
11, Landlord will apportion Basic Rent and Tenant's Share of Operating Expenses
on a per diem basis and Tenant will pay the Basic Rent and Tenant's Share of
Operating Expenses to (a) the date of the fire or other casualty if the event
renders the Premises completely untenantable or (b) if the event does not render
the Premises completely untenantable, the effective date of such termination
(provided that if a portion of the Premises is rendered untenantable, but the
remaining portion is tenantable, then Tenant's obligation to pay Basic Rent and
Tenant's Share of Operating Expenses will xxxxx according to the formula set
forth in Section 11.1 from the date of the casualty and Tenant will pay the
unabated portion of the Basic Rent to the date of such termination).
20.
11.7 EXCLUSIVE CASUALTY REMEDY.
The provisions of this Article 11 are Tenant's sole and exclusive
rights and remedies in the event of a casualty. To the extent permitted by the
Laws, Tenant waives the benefits of any Law that provides Tenant any abatement
or termination rights (by virtue of a casualty) not specifically described in
this Article 11.
ARTICLE 12
EMINENT DOMAIN
12.1 TERMINATION OF LEASE.
If a Condemning Authority desires to effect a Taking of all or any
material part of the Property, Landlord will notify Tenant and Landlord and
Tenant will reasonably determine whether the Taking will render the Premises
unsuitable for Tenant's intended purposes. If Landlord and Tenant conclude that
the Taking will render the Premises unsuitable for Tenant's intended purposes,
Landlord and Tenant will document such determination and this Lease will
terminate as of the date the Condemning Authority takes possession of the
portion of the Property taken. Tenant will pay Rent to the date of termination.
If a Condemning Authority takes all or any material part of the Building or if a
Taking reduces the value of the Building by 50% or more (as reasonably
determined by Landlord), regardless whether the Premises is affected, then
Landlord, at Landlord's option, by notifying Tenant prior to the date the
Condemning Authority takes possession of the portion of the Property taken, may
terminate this Lease effective on the date the Condemning Authority takes
possession of the portion of the Property taken.
12.2 LANDLORD'S REPAIR OBLIGATIONS.
If this Lease does not terminate with respect to the entire Premises
under Section 12.1 and the Taking includes a portion of the Premises, this Lease
automatically terminates as to the portion of the Premises taken as of the date
the Condemning Authority takes possession of the portion taken and Landlord
will, at its sole cost and expense, restore the remaining portion of the
Premises to a complete architectural unit with all commercially reasonable
diligence and speed and will reduce the Basic Rent for the period after the date
the Condemning Authority takes possession of the portion of the Premises taken
to a sum equal to the product of the Basic Rent provided for in this Lease
multiplied by a fraction, the numerator of which is the Rentable Area of the
Premises after the Taking and after Landlord restores the Premises to a complete
architectural unit, and the denominator of which is the Rentable Area of the
Premises prior to the Taking. Landlord will also equitably adjust Tenant's Share
of Operating Expenses Percentage for the same period to account for the
reduction in the Rentable Area of the Premises or the Building resulting from
the Taking. Tenant's obligation to pay Basic Rent and Tenant's Share of
Operating Expenses will xxxxx on a proportionate basis with respect to that
portion of the Premises remaining after the Taking that Tenant is unable to use
during Landlord's restoration for the period of time that Tenant is unable to
use such portion of the Premises.
12.3 TENANT'S PARTICIPATION.
Landlord is entitled to receive and keep all damages, awards or
payments resulting from or paid on account of a Taking. Accordingly, Tenant
waives and assigns to Landlord any interest of Tenant in any such damages,
awards or payments. Tenant may recover from the Condemning Authority but not
from Landlord, such compensation as may be separately recoverable for damages to
or condemnation of Tenant's movable trade fixtures and equipment and for moving
expenses; provided however, that Tenant has no right to receive any award for
its interest in this Lease or for loss of leasehold.
12.4 EXCLUSIVE TAKING REMEDY.
The provisions of this Article 12 are Tenant's sole and exclusive
rights and remedies in the event of a Taking. To the extent permitted by the
Laws, Tenant waives the benefits of any Law that provides Tenant any abatement
or termination rights or any right to receive any payment or award (by virtue of
a Taking) not specifically described in this Article 12.
21.
ARTICLE 13
TRANSFERS
13.1 RESTRICTION ON TRANSFERS.
13.1.1 GENERAL PROHIBITION.
Except as set forth in this Section 13.1, Tenant will not
cause or suffer a Transfer without obtaining Landlord's prior written consent,
which Landlord may grant or withhold in Landlord's sole and absolute discretion.
Notwithstanding the foregoing, Tenant may assign its interest in this Lease or
sublet the Premises, in whole or in part, to persons not permitted by Section
13.1.2, only with Landlord's prior written consent which will not be
unreasonably withheld, conditioned or delayed. In the event of a partial
assignment or a sublease to a Person that is not an Affiliate of Tenant, for the
remainder of the Term, Landlord may also, at Landlord's option by notifying
Tenant, terminate this Lease with respect to the portion of the Premises that
would be affected by the partial assignment or sublease. Landlord will notify
Tenant of Landlord's election to consent, withhold consent, impose conditions
and/or terminate within 30 days after receiving Tenant's request for consent to
the Transfer. Tenant will, in connection with requesting Landlord's consent,
provide Landlord with a copy of any and all documents and information regarding
the proposed Transfer and the proposed transferee as Landlord reasonably
requests. No Transfer, including, without limitation, a Transfer under Section
13.1.2, releases Tenant from any liability or obligation under this Lease and
Tenant remains liable to Landlord after such a Transfer as a principal and not
as a surety. If Landlord consents to any Transfer, Tenant will pay to Landlord,
as Additional Rent, 50% of any amount Tenant receives on account of the Transfer
in excess of the amounts this Lease otherwise requires Tenant to pay, once
Tenant has recovered its costs of the transaction, including Tenant Improvement
costs or allowances, broker commissions, attorneys' fees and other expenses. Any
attempted Transfer in violation of this Lease is null and void.
13.1.2 TRANSFERS TO AFFILIATES.
Tenant, without Landlord's consent (provided there is no Event
of Default by Tenant then existing under this Lease), may cause a Transfer to an
Affiliate if Tenant (a) notifies Landlord at least 15 days prior to such
Transfer; and (b) the Transferee assumes and agrees in writing delivered to
Landlord to perform Tenant's obligations under this Lease and to observe all
terms and conditions of this Lease. Landlord's right described in Section 13.1.1
to share in any profit Tenant receives from a Transfer, Landlord's termination
right under Section 13.1.1 and Landlord's right to costs in Section 13.2, do not
apply to any Transfer this Section 13.1.2 permits.
13.2 COSTS.
Tenant will pay to Landlord, as Additional Rent, all reasonable
out-of-pocket costs and expenses Landlord incurs in connection with its review
of a request for consent to a Transfer and/or instrument of assumption,
including, without limitation, reasonable attorneys' fees and costs, regardless
of whether Landlord consents to the Transfer.
ARTICLE 14
DEFAULTS; REMEDIES
14.1 EVENTS OF DEFAULT.
The occurrence of any of the following constitutes an Event of Default
by Tenant under this Lease if such Event of Default is not cured by Tenant
within the periods set forth below after written notice from Landlord:
22.
14.1.1 FAILURE TO PAY RENT.
Tenant fails to pay Basic Rent, any monthly installment of
Tenant's Share of Operating Expenses or any other Additional Rent amount as and
when due and such failure continues for five days after Landlord notifies Tenant
in writing,
14.1.2 FAILURE TO PERFORM.
Tenant fails to perform any of Tenant's nonmonetary
obligations under this Lease and the failure continues for a period of 30 days
after Landlord notifies Tenant in writing of Tenant's failure; provided that if
Tenant cannot reasonably cure its failure within a 30 day period, Tenant's
failure is not an Event of Default if Tenant commences to cure its failure
within the 30 day period and thereafter diligently pursues the cure and effects
the cure to completion.
14.1.3 [RESERVED]
14.1.4 OTHER DEFAULTS.
(a) Tenant makes a general assignment or general arrangement
for the benefit of creditors; (b) a petition for adjudication of bankruptcy or
for reorganization or rearrangement is filed by Tenant; (c) a petition for
adjudication of bankruptcy or for reorganization or rearrangement is filed
against Tenant and is not dismissed within 120 days; (d) a trustee or receiver
is appointed to take possession of substantially all of Tenant's assets located
at the Premises or of Tenant's interest in this Lease and possession is not
restored to Tenant within 120 days; or (e) substantially all of Tenant's assets,
substantially all of Tenant's assets located at the Premises or Tenant's
interest in this Lease is subjected to attachment, execution or other judicial
seizure not discharged within 30 days. If a court of competent jurisdiction
determines that any act described in this section does not constitute an Event
of Default, and the court appoints a trustee to take possession of the Premises
(or if Tenant remains a debtor in possession of the Premises) and such trustee
or Tenant transfers Tenant's interest hereunder, then Landlord is entitled to
receive, as Additional Rent, the amount by which the Rent (or any other
consideration) paid in connection with the Transfer exceeds the Rent otherwise
payable by Tenant under this Lease.
14.1.5 NOTICE REQUIREMENTS.
The notices required by this Section 14.1 are intended to
satisfy any and all notice requirements imposed by the Laws and are not in
addition to any such requirements.
14.2 REMEDIES.
Upon the occurrence of any Event of Default, Landlord, at any time and
from time to time, and without preventing Landlord from exercising any other
right or remedy, may exercise any one or more of the following remedies:
14.2.1 TERMINATION OF TENANT'S POSSESSION; RE-ENTRY AND
RELETTING RIGHT.
Landlord may terminate Tenant's right to possess the Premises
by any lawful means with or without terminating this Lease, in which event
Tenant will immediately surrender possession of the Premises to Landlord. Unless
Landlord specifically states that it is terminating this Lease, Landlord's
termination of Tenant's right to possess the Premises is not to be construed as
an election by Landlord to terminate this Lease or Tenant's obligations and
liabilities under this Lease. In such event, this Lease continues in full force
and effect (except for Tenant's right to possess the Premises) and Tenant
continues to be obligated for and must pay all Rent as and when due under this
Lease. If Landlord terminates Tenant's right to possess the Premises, Landlord
is not obligated to but may re-enter the Premises and remove all persons and
property from the Premises. Landlord may store any property Landlord removes
from the Premises in a public warehouse or elsewhere at the cost and for the
account of Tenant. Upon such re-entry, Landlord will make commercially
reasonable efforts to relet all or any part of the Premises to a third party or
parties for Tenant's account. Tenant is immediately liable to Landlord for all
Re-entry Costs and must
23.
pay Landlord the same within five days after Landlord's notice to Tenant.
Landlord may relet the Premises for a period shorter or longer than the
remaining Term. If Landlord relets all or any part of the Premises, Tenant will
continue to pay Rent when due under this Lease and Landlord will refund to
Tenant the Net Rent Landlord actually receives from the reletting up to a
maximum amount equal to the Rent Tenant paid that came due after Landlord's
reletting. If the Net Rent Landlord actually receives from reletting exceeds
such Rent, Landlord will apply the excess sum to future Rent due under this
Lease. Landlord may retain any surplus Net Rent remaining at the expiration of
the Term.
14.2.2 TERMINATION OF LEASE.
Landlord may terminate this Lease effective on the date
Landlord specifies in its termination notice to Tenant. Upon termination, unless
possession has already been relinquished pursuant to Section 14.2.1, Tenant will
immediately surrender possession of the Premises to Landlord. If Landlord
terminates this Lease, Landlord may recover from Tenant and Tenant will pay to
Landlord on demand all damages Landlord incurs by reason of Tenant's default,
including, without limitation, (a) all Rent due and payable under this Lease as
of the effective date of the termination; (b) any amount necessary to compensate
Landlord for any detriment proximately caused Landlord by Tenant's failure to
perform its obligations under this Lease or which in the ordinary course would
likely result from Tenant's failure to perform, including, but not limited to,
any Re-entry Costs, and (c) an amount equal to the amount by which the present
worth, as of the effective date of the termination, of the Rent for the balance
of the Term remaining after the effective date of the termination (assuming no
termination) exceeds the present worth, as of the effective date of the
termination, of the amount of Rent loss for the Premises for the same period,
that Tenant proves could be reasonably avoided. For purposes of this section,
Landlord will compute present worth by utilizing a discount rate of 8% per
annum. Nothing in this section limits or prejudices Landlord's right to prove
and obtain damages in an amount equal to the maximum amount allowed by the Laws,
regardless whether such damages are greater than the amounts set forth in this
section.
14.2.3 SELF HELP.
Provided Landlord has provided notice to Tenant and Tenant has
not cured the Event of Default subject of and within the period set forth in,
Section 14.1.2, Landlord may perform any obligation which Tenant has failed to
perform, on Tenant's behalf without waiving Landlord's rights under this Lease,
at law or in equity and without releasing Tenant from any obligation under this
Lease. Tenant will pay to Landlord, as Additional Rent, all sums Landlord pays
and obligations Landlord incurs on Tenant's behalf.
14.3 COSTS.
Tenant will reimburse and compensate Landlord on demand and as
Additional Rent for any actual loss Landlord incurs in connection with,
resulting from or related to any Event of Default of Tenant under this Lease,
and regardless whether suit is commenced or judgment is entered. Such loss
includes all reasonable legal fees, costs and expenses (including paralegal and
clerical fees and charges and other professional fees and charges) Landlord
incurs investigating, negotiating, settling or enforcing any of Landlord's
rights or remedies or otherwise protecting Landlord's interests under this
Lease.
14.4 WAIVER AND RELEASE BY TENANT.
Except to the extent of the negligence or willful misconduct of
Landlord or the Landlord Parties, Tenant waives and releases all Claims Tenant
may have resulting from Landlord's re-entry and taking possession of the
Premises in accordance with Washington forcible entry and detainer statute and
removing and disposing of or storing Tenant's property as permitted under this
Lease, regardless whether this Lease is terminated. No such reentry is to be
considered or construed as a forcible entry by Landlord.
14.5 LANDLORD'S DEFAULT.
If Landlord defaults in the performance of any of its obligations under
this Lease, Tenant will notify Landlord of the default and Landlord will have 30
days after receiving such notice to cure the default. If Landlord is
24.
not reasonably able to cure the default within a 30 day period, Landlord will
not be in default if Landlord commences to cure its failure within the 30 day
period and thereafter diligently pursues the cure to completion. In no event is
Landlord liable to Tenant or any other person for consequential, exemplary or
punitive damages, including, without limitation, lost profits and/or loss of
business opportunity. In the event Landlord fails to cure or commence cure
within the periods described in this Section 14.5, then Tenant may (but will not
be obligated to) perform the obligations of Landlord while at all times being in
compliance with all applicable Laws pertaining to such performance, and the
reasonable cost of that performance will be payable from Landlord to Tenant upon
demand.
If Tenant obtains a judgment against Landlord arising out of Landlord's
default under this Lease, Tenant may, to the extent the judgment is not paid by
Landlord, elect to setoff the amount of the judgment plus interest at the
Maximum Rate, against not more than 15% of Basic Rent, until paid; provided,
however, that if 15% of Basic Rent is not sufficient to amortize the judgment
and interest over the then remaining Term, Tenant may setoff the excess over and
against all Basic Rent and Additional Rent until the then remaining unpaid
balance of principal on the judgment, and interest can be amortized over the
then-remaining Term, at which point Tenant's setoff rights will again be
limited, with respect to judgment, as set forth prior to the semicolon of this
sentence. Election by Tenant to setoff against Rent, however, will not
constitute an election of remedies and Tenant may pursue all remedies available
at law or equity to enforce a judgment against Landlord. For purposes of this
paragraph, judgment means the final order of a court of competent jurisdiction
establishing Landlord's liability to Tenant in connection with Landlord's
default, which order is no longer appealable because the time in which an appeal
could have been filed has expired without the necessary appellate filing having
been made.
14.6 NO WAIVER.
No failure by Landlord or Tenant to insist upon the other party's
performance of any of the terms of this Lease or to exercise any right or remedy
consequent upon a breach thereof, constitutes a waiver of any such breach or of
any breach or default by the other party in its performance of its obligations
under this Lease. No acceptance by Landlord of full or partial Rent from Tenant
or any third party during the continuance of any breach or default by Tenant of
Tenant's performance of its obligations under this Lease constitutes Landlord's
waiver of any such breach or default. None of the terms of this Lease to be
kept, observed or performed by a party to this Lease, and no breach thereof, are
waived, altered or modified except by a written instrument executed by the other
party. No waiver of any default of a party to this Lease in the performance of
its obligations under this Lease may be implied from any omission by the other
party to take any action on account of such default. One or more waivers by a
party to this Lease is not to be construed as a waiver of a subsequent breach of
the same covenant, term or condition. No statement on a payment check from a
party to this Lease or in a letter accompanying a payment check is binding on
the other party. The party receiving the check, with or without notice to the
other party, may negotiate such check without being bound to the conditions of
any such statement.
14.7 PARTIES' REMEDIES.
If either party breaches any of the provisions of this Lease, the other
will be entitled to enjoin such breach and will have the right to invoke any
right or remedy allowed at law, in equity, by statute or otherwise as though
entry, reentry, summary proceedings and other remedies were not provided for in
this Lease. Each remedy or right of either party provided for in this Lease will
be cumulative and will be in addition to every other right or remedy provided
for in this Lease, or now or hereafter existing at law, in equity, by statute or
otherwise. The exercise or the beginning of the exercise by either party of any
one or more of such rights or remedies will not preclude the simultaneous or
later exercise by such party of any or all other rights or remedies.
ARTICLE 15
CREDITORS; ESTOPPEL CERTIFICATES
15.1 SUBORDINATION.
Tenant's performance under this Lease is conditional upon execution and
delivery to Tenant of a nondisturbance agreement by any current mortgagee or
ground lessor of the Building or any portion thereof in a
25.
commercially reasonable form. Such agreement will provide that for so long as
there is no Event of Default by Tenant under this Lease, Tenant's possession
will not be disturbed in the case of any mortgage foreclosure or ground lease
termination, as the case may be, and that this Lease will remain in full force
and effect, without increasing Tenant's obligations and duties and without
diminishing Tenant's rights and privileges under this Lease. Tenant will
subordinate this Lease to any future Mortgage or lessor of a master lease of the
Building and agree to attorn to a successor to Landlord's interest in the
Building provided such Mortgagee or lessor of a master lease of the Building
enters into an agreement with Tenant on the terms set forth above. Any such
subordination, attornment and nondisturbance agreement will be in form and
substance reasonably satisfactory to Landlord and Tenant.
15.2 ATTORNMENT.
If any ground lessor, holder of any Mortgage at a foreclosure sale or
any other transferee acquires Landlord's interest in this Lease, the Premises or
the Property, Tenant will attorn to the transferee of or successor to Landlord's
interest in this Lease, the Premises or the Property (as the case may be) and
recognize such transferee or successor as Landlord under this Lease.
Tenant waives the protection of any statute or rule of law that gives
or purports to give Tenant any right to terminate this Lease or surrender
possession of the Premises upon the transfer of Landlord's interest.
15.3 MORTGAGEE PROTECTION CLAUSE.
Tenant will give the holder of any Mortgage, by certified mail and at
the same time as Tenant notifies Landlord, a copy of any notice of default
Tenant serves on Landlord, provided that Landlord or the holder of the Mortgage
previously notified Tenant (by way of notice of assignment of rents and leases
or otherwise) of the address of such holder. Tenant further agrees that if
Landlord fails to cure such default within the time provided for in this Lease,
then Tenant will provide written notice of such failure to such holder and such
holder will have an additional 30 days within which to cure the default.
15.4 ESTOPPEL CERTIFICATES.
15.4.1 CONTENTS.
Upon Landlord's written request, Tenant will execute,
acknowledge and deliver to Landlord a written statement in form satisfactory to
Landlord certifying: (a) that this Lease (and all guaranties, if any) is
unmodified and in full force and effect (or, if there have been any
modifications, that the Lease is in full force and effect, as modified, and
stating the modifications); (b) that this Lease has not been canceled or
terminated; (c) the last date of payment of Rent and the time period covered by
such payment; (d) whether there are then existing any breaches or defaults by
Landlord under this Lease known to Tenant, and, if so, specifying the same; (e)
specifying any existing claims or defenses in favor of Tenant against the
enforcement of this Lease (or of any guaranties); and (f) such other factual
statements relating to the status of the Lease and the performance of its
provisions as Landlord, any lender, prospective lender, investor or purchaser
may request. Tenant will deliver the statement to Landlord within 15 Business
Days after Landlord's request. Landlord may give any such statement by Tenant to
any lender, prospective lender, investor or purchaser of all or any part of the
Property and any such party may conclusively rely upon such statement as true
and correct.
ARTICLE 16
TERMINATION OF LEASE
16.1 SURRENDER OF PREMISES.
Tenant will surrender the Premises to Landlord at the expiration or
earlier termination of this Lease in good order, condition and repair, and in
the condition it was in on the Commencement Date, reasonable wear and tear,
permitted Alterations and damage by casualty or condemnation excepted, and will
surrender all keys to the Premises to Properly Manager or to Landlord at the
place then fixed for Tenant's payment of Basic Rent or as Landlord or
26.
Property Manager otherwise direct. Tenant will also inform Landlord of all
combinations on locks, safes and vaults, if any, installed by Tenant in the
Premises or on the Property. Tenant will at such time remove all of its property
from the Premises and, if Landlord so requests, all Alterations designated by
Landlord pursuant to Section 8.3 to be removed upon expiration or termination of
this Lease, any safes or vaults, any computer room installations, and all
computer data and other related cables Tenant placed on the Premises or in the
Union Station Condominium, provided, however, that if this Lease expires upon
expiration of a Renewal Term, Tenant will be obligated to remove computer data
and related cables only if they are obsolete or they are unused and have been
abandoned at any time during the Term. Nothing is this Lease requires Tenant to
remove telephone wires or cables. Tenant will promptly repair any damage to the
Premises caused by such removal and restore the Premises to the condition
required by the first sentence of this section. All property of Tenant not
removed on or before the last day of the Term is deemed abandoned. Tenant
appoints Landlord as Tenant's agent to remove, at Tenant's sole cost and
expense, all of Tenant's property from the Premises upon termination of this
Lease and to cause its transportation and storage for Tenant's benefit, all at
the sole cost and risk of Tenant, and Landlord will not be liable for damage,
theft, misappropriation or loss thereof or in any manner in respect thereto. If
Tenant fails to timely remove any items required hereunder to be removed or
fails to timely repair any damage and restore the Premises, as required by this
Section 16.1, Landlord may, at Tenant's cost, perform the removal, repair and/or
restoration.
16.2 HOLDING OVER.
If Tenant possesses the Premises after the Term expires or is otherwise
terminated without executing a new lease but with Landlord's written consent,
including for purposes of performing its obligations under Section 16.1, Tenant
is deemed to be occupying the Premises as a tenant from month-to-month, subject
to all provisions, conditions and obligations of this Lease applicable to a
month-to-month tenancy, except that (a) Basic Rent will equal the greater of
Basic Rent payable by Tenant in the last Lease Year of the Term or Landlord's
then current basic rent for the Premises according to Landlord's rental rate
schedule for prospective tenants, and (b) either Landlord or Tenant may
terminate the month-to-month tenancy at any time upon 30 days prior written
notice to the other party. If Tenant possesses the Premises after the Term
expires or is otherwise terminated without executing a new lease and without
Landlord's written consent, Tenant is deemed to be occupying the Premises
without claim of right (but subject to all terms and conditions of this Lease)
and, in addition to Tenant's liability for failing to surrender possession of
the Premises as provided in Section 16.1, Tenant will pay Landlord a charge for
each day of occupancy after expiration of the Term in an amount equal to 150% of
Basic Rent (on a daily basis) immediately before the expiration or termination
of this Lease.
ARTICLE 17
ADDITIONAL PROVISIONS
17.1 INITIAL IMPROVEMENTS.
17.1.1 LANDLORD'S IMPROVEMENTS.
Landlord will provide, at no cost to Tenant, the Landlord's
Improvements.
Landlord will deliver to Tenant a full set of the latest
available design development drawings for the Landlord's Improvements within 5
Business Days of the Effective Date. Tenant may, within 10 Business Days of
receipt of such drawings, request Landlord to make changes to the Building in
connection with (collectively, the "Permitted Change Items") building internal
circulation, the mechanical and electrical systems' layouts, and structural
elements affecting Tenant's use. Landlord agrees not to unreasonably withhold,
condition or delay its consent to Tenant's requested changes to the Permitted
Change Items provided that: (i) they do not affect major structural systems of
the Building or the location of the principal mechanical or elevator portions of
the Building, all of which are established and fixed; (ii) the changes will not,
in Landlord's reasonable opinion, adversely affect Landlord's schedule for plan
development, building permit application, or construction; and (iii) the changes
do not increase any cost to Landlord unless Tenant agrees to bear the increased
cost.
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17.1.2 IMPROVEMENT ALLOWANCE.
Landlord will credit an amount up to the Improvement
Allowance, against Tenant's obligation to pay the Cost of Construction of the
Tenant's Initial Improvements, and the costs of Tenant's service providers as
described in Section 17.1.3. Landlord is not obligated to pay or incur any such
costs that exceed the Improvement Allowance.
17.1.3 TENANT'S IMPROVEMENTS.
Landlord will construct, at Tenant's sole cost and expense
(but subject to Section 17.1.2), all initial Tenant's Improvements. Tenant will
design the Tenant's Improvements as described in this Section 17.1.
As soon as reasonably practical after Landlord approves the
Final Plans, but not more than 15 Business Days thereafter, Landlord will
provide to Tenant a detailed budget for the Cost of Construction of the Tenant's
Improvements in accordance with the Final Plans, which proposed budget will be
subject to review and approval by Tenant. As approved by Landlord and Tenant in
writing, such construction budget will be referred to herein as the "Budget."
Landlord and Tenant agree to make a good-faith effort to prepare and approve the
Budget within 15 days after Landlord has delivered its initial detailed budget
to Tenant. As initially proposed and submitted by Landlord to Tenant for
Tenant's approval, the Budget will set forth a breakdown by trade of bids
received, and Landlord will supply Tenant with documentation relating to any
referenced bids as Tenant may reasonably request. As part of the Budget approval
process, Tenant may request competitive bidding of up to 3 bids, as may be
reasonable under the circumstances, and, incident thereto, provide Landlord with
additional subcontractors or suppliers (not to exceed three per line item
subcontract) from whom Landlord will obtain bids; provided, however, that (i) no
such multiple bids will be required for contracts where the total subcontract
cost is less than Thirty Thousand Dollars ($30,000.00), (ii) Landlord will not
be obligated to use any supplier or subcontractor recommended by Tenant unless
Landlord is reasonably satisfied that the particular subcontractor or supplier
meets Landlord's financial and performance requirements for the work, and (iii)
the mechanical, electrical and fire protection subcontractors performing the
work for Landlord's Improvements will be the subcontractor performing such
services to Landlord for the Landlord's Improvements, so long as those
subcontractors provide bids that are competitive and are able to meet the
construction schedule for the work, and if either of those criteria are not met
by any of such subcontractors, then Tenant may require its work to be
competitively bid, whereupon the provisions of clause (ii) of this sentence will
apply. During development of the Budget, Tenant may make value engineering
adjustments in coordination with Landlord and Landlord's architect to reduce the
Cost of Construction of the Tenant's Improvements as Tenant sees fit.
Tenant will have the right to select its own subcontractors or
service providers for telecommunications, data systems and cabling, security and
architectural and design services. If, incident to the design or construction of
Landlord's Improvements and Tenant's Improvements, Landlord is required to
engage one or more engineering consultants to review the work of Tenant's
service providers, the fees reasonable and charges of such' consultants will
also constitute part of the Cost of Construction.
If the Cost of Construction of Tenant's Improvements exceeds
the Improvement Allowance, Tenant will pay Landlord, as Additional Rent, the
amount by which the Cost of Construction of the Tenant's Improvements exceeds
the Improvement Allowance, in monthly installments (the "Estimated TI Payments")
based upon a percentage completion basis, as follows: On the 25th day of each
calendar month commencing with the calendar month during which the Improvement
Allowance will be expended, Landlord will submit to Tenant a progress payment
request, estimated as of the thirtieth or last Business Day of that month,
showing Landlord's reasonable estimate of the value of the Tenant's Improvements
completed, based upon the value of labor, services and materials incorporated or
to be incorporated in the Premises and of materials stored at the Building Site
as of the 30th or last Business Day of the month and the contractor's
overhead/general conditions costs and contractor's fee thereon. Tenant will pay
Landlord, within 10 days of receipt, the amount specified in Landlord's
statement. Upon Substantial Completion of Tenant's Improvements, Landlord will
notify Tenant of the final Cost of Construction of Tenant's Improvements, which
notice will be accompanied by reasonable documentation. If the final Cost of
Construction of Tenant's Improvements less the Estimated TI Payments actually
paid by Tenant exceeds the Improvement Allowance, Tenant will pay the amount of
such excess to Landlord, as Additional Rent, within 30 days after receipt of
Landlord's notice. If the final Cost of Construction of Tenant's Improvements,
less the
28.
Estimated TI Payments actually paid by Tenant, is less than the Improvement
Allowance, Landlord will pay the unused portion of the Improvement Allowance to
Tenant within 30 days after giving said notice.
17.1.4 PROPERTY MANAGER/SITE SUPERINTENDENT.
Landlord is the general contractor for all Tenant's
Improvements. In connection with installing Tenant's Improvements, Landlord will
utilize a project manager and site superintendent, the fees of which are payable
by Tenant on an hourly basis, as part of Landlord's overhead in connection with
the Tenant's Improvements.
17.1.5 SPACE PLAN.
Landlord will give not less than 13 months' notice of the
estimated Delivery Date, provided, however, that the estimated Delivery Date may
not be prior to February 1, 2001 unless Landlord gives notice of such date to
Tenant on or before October 1, 1999. On or before 10 months before the estimated
Delivery Date as so established by Landlord, Tenant will deliver to Landlord a
space plan for the Tenant's Improvements. The space plan must (a) be compatible
(as reasonably determined by Landlord) with the base building and the mechanical
and electrical components of the base building; (b) be adequate, in Landlord's
reasonable discretion, for Tenant to prepare working drawings for the Tenant's
Improvements; (c) show, in reasonable detail, the design and appearance of the
finishing material Landlord will use in connection with installing Tenant's
Improvements; (d) be consistent with the Tenant's Improvements Outline
Specifications attached hereto as EXHIBIT G and (e) contain such other detail or
description as may be necessary for Landlord to adequately outline the scope of
Tenant's Improvements. Landlord will approve or disapprove the space plan in
writing within ten days after receiving the same. If Landlord disapproves the
space plan within the 10 day period, Tenant will revise the space plan and
resubmit it to Landlord for approval. Landlord will have the same approval
rights and approval time period with respect to the revised space plan as
Landlord had with respect to the initial space plan as described in this
section. Not more than 15 days after Tenant has submitted its Space Plan in
conformance with the foregoing requirements of this section, Landlord will
deliver to Tenant a preliminary cost estimate for Tenant's Improvements shown on
the Space Plan submitted.
17.1.6 WORKING DRAWINGS AND SPECIFICATIONS.
On or before 120 days after Landlord approves Tenant's space
plan, Tenant will cause its architect to prepare and deliver the Final Plans to
Landlord. The Final Plans must be (a) compatible (as reasonably determined by
Landlord) with the base building and the mechanical and electrical components of
the base building; (b) show, in reasonable detail, the design and appearance of
the finishing material Landlord will use in connection with installing Tenant's
Improvements; and (c) contain such other detail or description as may be
necessary for Landlord to construct the Tenant's Improvements. Landlord will
approve or disapprove the proposed Final Plans in writing within 15 days after
receipt. If Landlord disapproves the Final Plans within the 15 day period
described in this section, Tenant will revise the Final Plans and resubmit them
to Landlord for approval. Landlord will have the same approval rights and
approval time period with respect to the revised Final Plans as Landlord had
with respect to the initial Final Plans as described in this section. After the
Final Plans have been approved in writing by Landlord, Tenant will cause its
architect to seal the Final Plans. Landlord will apply for all necessary
building permits and submit the approved Final Plans for construction bids. If
City requires any changes to the Final Plans and if Landlord disapproves the
changes required by City, Landlord and Tenant will cooperate to develop changes
to the Final Plans that are approved by both Landlord and City. If Tenant orders
long lead time items that delay Substantial Completion of Tenant's Improvements,
Substantial Completion will be deemed to occur notwithstanding the absence of
long lead items and Tenant will pay all additional costs (and additional
mobilization costs, if any) incurred by Landlord as a result of completing the
construction and installation of long lead time items. Landlord will exercise
commercially reasonable efforts to notify Tenant if Tenant orders long lead time
items that will delay Substantial Completion of Tenant's improvements.
Notwithstanding the foregoing provisions of this section,
Landlord agrees, if requested by Tenant, to submit to City for a building
permit, even if the Final Plans have not been approved by Landlord and sealed by
Landlord's architect, provided that any such premature submittal will be at
Tenant's own risk, and any additional cost incurred in connection with amending
any such submitted plans to obtain the approval of Landlord or City shall be a
Cost of Construction, and any delay will constitute a Tenant Delay.
29.
17.1.7 CHANGES TO FINAL PLANS.
Tenant will notify Landlord in writing of any desired
revisions to the Final Plans approved by Landlord and the City of Seattle
pursuant to Section 17.1.6. If Landlord approves the revisions, Tenant will
cause the Final Plans to be revised accordingly and promptly delivered to
Landlord. Landlord will notify Tenant of the additional cost of Tenant's
Improvements and the anticipated delay in completing the Tenant's Improvements
caused by such revisions. Tenant will approve or disapprove the increased cost
and delay within five Business Days after Landlord notifies Tenant of the
additional cost and delay. If Tenant fails to notify Landlord in writing of its
approval or disapproval of the additional cost and delay within the five
Business Day period, Tenant will be deemed to have disapproved the additional
cost or delay. If Tenant disapproves the additional cost or delay, Tenant is
deemed to have withdrawn its proposed revisions to the Final Plans. If incident
to a requested revision to the Final Plans, Landlord stops work pending
resolution of whether Tenant finally approves or disapproves a proposed
revision, then whether or not Tenant ultimately approves or disapproves the
proposed revision and its attendant additional cost or delay, any delay
resulting from the work stoppage will constitute a Tenant Delay.
17.1.8 SUBSTANTIAL COMPLETION.
Landlord will use commercially reasonable efforts to achieve
Substantial Completion of Tenant's Improvements on or before the Delivery Date,
subject to Tenant Delays and delays caused by Force Majeure. Landlord will
notify Tenant on or before 60 days prior to the Delivery Date, if Landlord
believes that Substantial Completion of Tenant's Improvements will occur after
the Delivery Date. To the extent any delay in Substantial Completion of the
Premises more than 15 days but less than 30 days past the Delivery Date is
attributable to delay caused by Landlord, then Landlord will pay to Tenant, as
liquidated damages, a sum equal to the number of days of delay attributable to
delay by Landlord after expiration of such 15-day period times 150% of the per
diem Basic Rent specified for the first 60 months of the Initial Term. To the
extent any delay in Substantial Completion of the Premises more than 30 days
past the Delivery Date is attributable to delay caused by Landlord, then
Landlord will pay to Tenant, as liquidated damages, a sum equal to the number of
days of delay attributable to delay by Landlord after expiration of such 30-day
period times 250% of the per diem Basic Rent specified for the first 60 months
of the Initial Term. SEE SECTION 17.1.14.
17.1.9 FAILURE TO COMPLETE CONSTRUCTION.
If Landlord fails to achieve Substantial Completion of the
Landlord's Improvements and the Tenant's Improvements on Floors 10 and 11 by the
Outside Delivery Date as extended, if at all, as a result of Tenant Delays or
Force Majeure (the "Right to Cancel Date"), Tenant may terminate this Lease by
delivering fifteen (15) days prior written notice to Landlord at any time after
the Right to Cancel Date. Notwithstanding the foregoing, however, unless
Landlord, within fifteen (15) days of the receipt of the Tenant's termination
notice causes Substantial Completion to occur and delivers the Premises to
Tenant as required hereby, this lease will be automatically terminated at the
expiration of such fifteen (15) day period following Landlord's receipt of
Tenant's notice. Upon such termination, except as provided in Section 17.1.8,
neither party will have any additional Claims against the other except to the
extent Landlord's failure to achieve Substantial Completion by the Outside
Delivery Date is due to a cause other than Tenant Delays or Force Majeure, then
Landlord will pay Tenant, as liquidated damages and as Tenant's sole and
exclusive remedy, a sum equal to $3,125,000 plus Tenant's Out of Pocket Expenses
within thirty (30) days following Landlord's receipt of notice from Tenant
terminating this Lease and Landlord's receipt of Tenant's demand accompanied by
reasonable supporting invoices.
17.1.10 TENANT DELAYS.
To the extent a delay in the Substantial Completion of the
Premises which is a direct, indirect, partial, or total result of any of the
following, the delay is a "Tenant Delay":
(a) Tenant's failure to comply with Tenant's
Improvements deadlines which are Tenant's responsibility to meet in
accordance with this Lease;
(b) Tenant's failure to timely approve any
matter requiring Tenant's approval;
30.
(c) Tenant's failure to maintain the Security
Deposit required by Section 17.18; provided, however, that if the
Security Deposit is provided by a pledge of marketable securities under
Section 17.18.4, then Tenant shall not be deemed to have failed to
maintain the Security Deposit under this Section 17.1.10 unless the
value of the pledged securities is less than 90% of the value required
by Section 17.18.4, and if Landlord stops construction due to a
violation of the foregoing standard, then promptly after Tenant
restores the Security Deposit to the required amount, Landlord shall
recommence construction;
(d) Tenant's request for changes in any of the
plans, drawings or specifications which have been, by process of the
approval procedures described in this Lease, deemed to be "Final
Plans";
(e) Tenant's requirement for materials,
components, finishes or improvements which are not available in a
commercially reasonable time given the anticipated date of Substantial
Completion of the Premises, as set forth in this Lease, or which are
different from, or not included in, the Standard Improvement Package;
(f) changes to the building shell and core, or
structural components or systems of the Building required by the Final
Plans or any changes thereto requested by Tenant;
(g) Landlord's inability to obtain a temporary
certificate of occupancy (or its equivalent) for the Premises as a
result of the failure of the Tenant's Improvements shown on the Final
Plans to comply with any applicable governmental requirements;
(h) Tenant's request that Landlord temporarily
suspend any portion of the construction of the Tenant's Improvements
for reasons unrelated to the construction of the Tenant's Improvements
in an unsatisfactory manner; or
(i) a delay arising out of Section 17.1.7.
No occurrence will be deemed to be a "Tenant Delay" unless
Landlord identifies such occurrence in writing in a notice to Tenant as a
"Tenant Delay." Landlord agrees to use good faith reasonable efforts to counter
the effect of any Tenant Delay; however, Landlord will not be obligated to
expend any additional amounts in such efforts (e.g., by employing overtime
labor) unless Tenant agrees in advance to bear any incremental cost associated
with such efforts (whether or not such efforts are ultimately successful).
Notwithstanding the foregoing, a Tenant Delay will not be deemed to have delayed
Substantial Completion unless there is a direct causation between the Tenant
Delay and Landlord's failure to achieve Substantial Completion.
17.1.11 PUNCH LIST.
Landlord will give Tenant not less than five Business Days'
notice of the estimated date of Substantial Completion. Within three Business
Days after the Tenant's Improvements are substantially complete, Landlord and
Tenant will inspect the Premises and will thereafter develop a Punch List.
Landlord will complete (or repair, as the case may be) the items described on
the Punch List with commercially reasonable diligence and speed, subject to
delays caused by Tenant Delays and Force Majeure. If Tenant refuses to inspect
the Premises with Landlord within the period required by this section, then upon
Substantial Completion the Tenant's Improvements will be deemed to be
substantially completed in accordance with the Final Plans and Tenant is deemed
to have accepted the Premises as delivered, subject to Section 17.1.12. SEE
SECTION 17.1.14.
17.1.12 CONSTRUCTION WARRANTY.
Landlord (a) warrants Landlord's Improvements will be
constructed in a good and workmanlike manner, free of defects and in conformance
with all applicable laws, codes, regulations and ordinances and with EXHIBIT F,
and (b) warrants Tenant's Improvements will be constructed in a good and
workmanlike manner, in conformance with the Final Plans (as revised pursuant to
this Section 17.1) and will be free of defects in workmanship and materials for
a period of one year after the date of Substantial Completion. Landlord will
repair
31.
or replace, as necessary, any defective item that is a part of Tenant's
Improvements caused by poor workmanship or materials if Tenant notifies Landlord
of the defective item within such one year period. Landlord has no obligation to
repair or replace any item that is a part of Tenant's Improvements unless Tenant
notifies Landlord of the defect before the one year period expires. Tenant must
strictly comply within Warranty Terms. Upon expiration of the one-year warranty
period set forth in this section in connection with Tenant's Improvements,
Landlord will assign to Tenant any warranties of workmanship or materials given
to Landlord by subcontractors or materialmen for a period longer than the
one-year warranty described above. Landlord makes to warranty or representation
that any such warranties will be assignable. To the extent that any such
warranty is not assignable, Landlord agrees to cooperate with Tenant in the
enforcement thereof by Tenant, at Tenant's sole cost. Landlord also agrees to
cooperate with Tenant in the enforcement by Tenant, at Tenant's sole cost, of
any service contracts that provide service, repair or maintenance for a period
longer than such one-year period on any item incorporated in the Building, that
is to be maintained by Tenant. SEE SECTION 17.1.14.
17.1.13 REPRESENTATIVES.
"Designated Representative" means any person authorized to
speak and act on behalf of Landlord or Tenant and upon whom the other will fully
and unconditionally be entitled to rely for any and all purposes of this Section
17.1 until such designation will be revoked or altered as hereinafter provided.
Landlord hereby appoints Xxx Xxxxxxx as its Designated Representative. Tenant
hereby appoints Xxxxxxx Xxxx and Xxxxx Xxxxxxxxx-Xxxxxxx as its Designated
Representatives. Either party may change its Designated Representatives by
notice to the other, but no such change or revocation of the power of a
Designated Representative will affect any approval or consent given by a party's
Designated Representative prior to the other party receiving notice of
revocation of such Designated Representative's appointment. Landlord or Tenant's
approval or consent to any matter arising under this Section 17.1 or Section
17.19 will conclusively be evidenced by the signature of one of its Designated
Representatives.
Landlord and Tenant will cause their respective Designated
Representatives to have weekly meetings commencing in the first week of August
1999, for the purpose of keeping each other informed on the status of all
matters involving Landlord's Improvements or Tenant's Improvements. Landlord
will also cause its project manager and site superintendent to attend such
meetings.
17.1.14 DELIVERY IN SEGMENTS.
The parties agreed that: all of the Rentable Area on Floors 7,
8 and 9 of the Building (the "First Takedown Space") will be included in the
Premises Rentable Area the earlier of (a) the date 60 days after the
Commencement Date or (b) the date on which Tenant actually occupies or uses any
portion of the First Takedown Space for any purpose whatsoever, except as
permitted by Section 1.2.4; all of the Rentable Area on Floors 4, 5 and 6 of the
Building (the "Second Takedown Space") will be included in the Premises Rentable
Area the earlier of (c) the date 120 days after the Commencement Date or (d) the
date on which Tenant actually occupies or uses any portion of the Second
Takedown Space for any purpose whatsoever, except as permitted by Section 1.2.4;
and all the Rentable Area on Floors 1, 2 and 3 (the "Third Takedown Space") will
be included in the Premises Rentable Area on the earlier of the date that is (e)
180 days after the Commencement Date or (f) the date on which Tenant actually
occupies any portion of the Third Takedown Space for any purposes whatsoever,
except as permitted by Section 1.2.4. Notwithstanding any other provision of
this Lease, Landlord may elect to achieve Substantial Completion of the Tenant's
Improvements in each of the First Takedown Space, the Second Takedown Space, and
the Third Takedown Space, respectively, as necessary to enable the Rentable Area
in such portions of the Building to be added to the Premises on the foregoing
schedule. All of Tenant's rights under Sections 1.2.2, 1.2.4; 1.3, 17.1.8,
17.1.11 and 17.1.12 will be deemed to apply separately to the First Takedown
Space, the Second Takedown Space and/or the Third Takedown Space and,
accordingly, any reference to the "Premises" in those sections and in the
definition of Commencement Date on EXHIBIT A will be deemed to refer to the
First Takedown Space, the Second Takedown Space and/or the Third Takedown Space,
as the case may be. In addition, any reference to the Delivery Date in Sections
1.1.2, 1.2.4 and 17.1.8 or in the definition of Commencement Date shall mean, in
the case of the First Takedown Space, the Second Takedown Space or the Third
Takedown Space, the date the Rentable Area thereof is to be added to the
Premises as set forth above in this section or established, if at all, pursuant
to the next paragraph of this section.
32.
Tenant may elect, by delivering not less than 150 days' prior
written notice to Landlord, to accelerate the date Landlord will achieve
Substantial Completion of the Tenant's Improvements in all or any of the First
Takedown Space, the Second Takedown Space or the Third Takedown Space, as the
case may be; provided, however, that Tenant may elect so to accelerate the
Delivery Date only on a floor-by-floor basis, commencing on Floor 9, and then
proceeding to each next succeeding lower floor in the Building.
17.2 SPECIAL TERMINATION OPTION.
Provided that an Event of Default under this Lease does not then exist,
Tenant will have the right to partially terminate this Lease for up to two
contiguous floors (which must be on Floor 11 and then on Floor 10) as of the end
of the 96th or the 108th full calendar month of the Initial Term, by giving not
less than 12 months irrevocable written notice of termination to Landlord.
Tenant's notice of partial termination will be effective only if it is delivered
to Landlord on or before the last day of the 83rd full calendar month of the
Initial Term (in the case of termination as of the end of the 96th full calendar
month of the Initial Term) or on or before the last day of the 95th calendar
month of the Initial Term (in the case of termination as of the end of the 108th
full calendar month of the Initial Term). It is a condition of any such partial
termination that Tenant will pay Landlord, as Additional Rent, on or before the
expiration of the 96th or the 108th full calendar month of the Initial Term, as
the case may be, an amount (a "Termination Fee") equal to multiplying (x) the
fraction, the numerator of which is the Rentable Area of the Premises as to
which the Lease is being terminated, and the denominator of which is the
Rentable Area of the Initial Premises, times (y) an amount equal to the then
unamortized portion (based upon an amortization period of 120 months with
interest at 11 percent per annum) of the Improvement Allowance, Landlord's
reasonable legal fees incurred in connection with this Lease, and Broker fees
paid by Landlord and attributable to this Lease. In furtherance thereof,
Landlord will deliver to Tenant within 60 days after receiving a partial
termination notice from Tenant pursuant to this section, Landlord's computation
of the Termination Fee due and payable to Landlord in connection with the
partial termination. The provisions of this section are for the personal benefit
of the original Tenant that executes this Lease only, and no assignee or
sublessee (except for an Affiliate to which Tenant has assigned its interest in
this Lease or subleased all or a part of the Premises as permitted by Section
13.1.2) will have any rights whatsoever under this section. THE PARTIES HEREBY
AGREE THAT (a) TIME IS PARTICULARLY OF THE ESSENCE WITH RESPECT TO THE
PROVISIONS OF THIS SECTION; (b) NOTWITHSTANDING ANY LAW IN THE STATE OF
WASHINGTON, INCLUDING CASE LAW, TO THE CONTRARY, LANDLORD WILL BE UNDER NO DUTY
WHATSOEVER TO NOTIFY TENANT THAT TENANT HAS FAILED TO GIVE THE NOTICE IT HAS THE
RIGHT TO GIVE UNDER THE FOREGOING PROVISIONS OF THIS SECTION; AND (c) THE ENTIRE
PROVISIONS OF THIS SECTION HAVE BEEN SPECIALLY NEGOTIATED BY THE PARTIES.
17.3 RENEWAL TERMS.
Tenant will have the right, subject to all provisions of this Section
17.3, to extend the Lease Term for two consecutive and successive periods of
five years (each of which is a "Renewal Term" and all of which are sometimes
collectively the "Renewal Terms"), provided that: (a) Tenant has delivered to
Landlord an information notice of its intent to exercise its right to a Renewal
Term, which information notice must be delivered to Landlord not less than 18
months prior to the expiration of the then Initial Term or Renewal Term, as the
case may be; (b) this Lease is in full force and effect; (c) an Event of Default
does not exist on the last day of the Initial Term or of the first Renewal Term,
as the case may be; (d) Tenant exercises its right to each of the Renewal Terms
by giving Landlord written notice of its election at least one year before the
first day of the Renewal Term being exercised; and (e) each Renewal Term will be
upon the same terms, covenants and conditions as provided in this Lease except
that: (i) the Improvements Allowance and the Special Termination Option set
forth in Section 17.2 will not apply, (ii) there will be no renewal option
beyond those provided in this Section 17.3, and (iii) the monthly Basic Rent
will be the Basic Rent determined pursuant to this section. THE PARTIES HEREBY
AGREE THAT (a) TIME IS PARTICULARLY OF THE ESSENCE WITH RESPECT TO THE
PROVISIONS OF THIS SECTION; (b) NOTWITHSTANDING ANY LAW IN THE STATE OF
WASHINGTON, INCLUDING CASE LAW, TO THE CONTRARY, LANDLORD WILL BE UNDER NO DUTY
WHATSOEVER TO NOTIFY TENANT THAT TENANT HAS FAILED TO GIVE THE NOTICE IT HAS THE
RIGHT TO GIVE UNDER THE FOREGOING PROVISIONS OF THIS SECTION; AND (c) THE ENTIRE
PROVISIONS OF THIS SECTION HAVE BEEN SPECIALLY NEGOTIATED BY THE PARTIES.
33.
17.3.1 RENEWAL TERM BASIC RENT.
The annual Basic Rent during each Renewal Term will be the
annual Market Rent for Comparable Space in the Relevant Market leased on
comparable terms and conditions. Landlord will give Tenant notice of Landlord's
estimation of such Market Rent on the later of (a) that day which is 15 days
after receiving Tenant's informational notice of its intent to exercise its
right to renew, and (b) that day which is 18 months prior to the expiration of
the then-current Term. If Tenant disagrees with such estimate, it will notify
Landlord in writing thereof within 30 days of Tenant's receipt of its notice. If
Tenant fails to notify Landlord that it disagrees with the estimation within
said 30-day period, Tenant will be deemed to have agreed to the Market Rent
proposed by Landlord. If there is a disagreement on such estimation, the parties
will promptly meet to attempt to resolve their differences. If the differences
as to Market Rent are not resolved within 30 days of the date Tenant objects to
Landlord's initial estimate of Market Rent, then the parties will submit the
matter to appraisal in accordance with Section 17.3.2 so that Market Rent is
determined no later than twelve months prior to the expiration of the
then-current Term.
17.3.2 APPRAISAL PROCEDURE.
If the parties are to submit any matter to appraisal pursuant
to the terms of this Lease, either Landlord or Tenant (the "Moving Party") may
give notice to the other demanding appraisal and naming an independent and
neutral appraiser or appraisal company. The recipient of such notice (the
"Recipient") will, within 15 days after receiving the Moving Party's notice,
give notice to the Moving Party naming an independent and neutral appraiser or
appraisal company selected by the Recipient. Each appraiser will be a member of
the American Institute of Appraisers and will have not less than 10 years
experience in the appraisal of properties like the Building in the Relevant
Market. If the Recipient fails to notify the Moving Party of the name of the
appraisal company it has selected within said 15 day period, the appraisal
company selected by the Moving Party will determine the matter submitted. The
appraiser(s) will render a determination in writing to Landlord and Tenant
simultaneously within 15 days of their appointment. Any determination in which
the appraiser appointed by Landlord and the appraiser appointed by Tenant concur
will be binding and conclusive upon the parties.
If the two appraisers are unable to determine the matter within 20 days
after appointment of the second of the two appraiser(s), they will appoint a
third appraiser, who will be an independent and neutral person with
qualifications the same as to those required of the first two appraisers. If the
initial two appraisers are unable to agree upon such appointment within 5 days
after expiration of the 20 day period, the third appraiser will be selected by
the parties themselves, if they can agree, within a further period of 10 days.
If the parties do not so agree, then either party, on behalf of both, may
request appointment of such a qualified person by Judicial Dispute Resolution,
LLC ("JDR") of Seattle, Washington. The other party will not raise any question
as to JDR's full power and jurisdiction to entertain the application for and
make the appointment. If the matter cannot be determined by agreement between
the two appraisers selected by Landlord and Tenant, or settlement between the
parties during the course of appraisal, then it will be determined by the three
appraisers in accordance with the following procedure. Each of the two
appraisers originally selected by the parties will prepare a written statement
of his determination, supported by the reasons therefor, with counterpart copies
for each party and the third appraiser. The appraisers will arrange for a
simultaneous exchange of their written statements. The role of the third
appraiser will be to select which of the two proposed determinations most
closely approximates his determination on the matter. The third appraiser will
have no right to propose a middle ground or any modification of either of the
two determinations. The third appraiser will determine the matter within 10 days
after his or her receipt of the written statements of each of the first two
appraisers. The determination chosen by the third appraiser will constitute the
determination of the appraisers and be final and binding upon the parties.
In the event of a failure, refusal or inability of any appraiser to
act, his successor will be appointed by him, but in the case of the third
appraiser, his successor will be appointed in the manner described above for
appointment of the third appraiser. The appraisers will have the right to
consult experts and competent authorities with factual information or evidence
pertaining to a determination on the matter, but any such consultation will be
made in the presence of both parties with full right on their part to
cross-examine. The appraiser(s) will render the determination on the matter in
writing, with counterpart copies to each party. The appraisers will have no
power to modify the provisions of this Lease. Each party will pay the fees and
expenses of its respective appraiser and both will share equally the fees and
expenses of the third appraiser, if any. Each party will pay the attorneys' fees
and expenses of
34.
its counsel and the fees and expenses of any witnesses called by that party.
Time is of the essence in connection with any matter submitted to appraisal
pursuant to this section.
17.3.3 TENANT'S RIGHT NOT TO RENEW.
Notwithstanding anything herein to the contrary, Tenant will
have the absolute right to elect not to exercise its option to renew the Lease
Term whether or not Basic Rent for a Renewal Term will have been determined;
provided, however, that if Tenant has given Landlord its informational notice
pursuant to Section 17.3 and Basic Rent has not been determined by that date
which is 12 months prior to the expiration of the then-current Term, then to the
extent any delay is the result of Landlord's failure to comply with the
deadlines specified in Section 17.3.1 and 17.3.2, the last date for Tenant's
notice of its exercise of an option to extend the Term of the Lease will be
extended on a day-for-day basis, until Landlord's compliance is complete; and
provided, further, that if the Basic Rent for a Renewal Term has been determined
pursuant to the Appraisal Procedures set forth in Section 17.3.2 and if Tenant
does not elect to exercise its option to renew for that Renewal Term, then
Tenant will pay to Landlord the actual fees and expenses Landlord incurred for
appraisers pursuant to Section 17.3.2 with respect to that Renewal Term.
17.4 [RESERVED]
17.5 [RESERVED]
17.6 RIGHTS OF FIRST OPPORTUNITY AND RIGHT OF FIRST REFUSAL TO
PURCHASE.
Subject to the last paragraph of this section, Tenant will have the
right of first opportunity to purchase the Unit during the term of this Lease on
the terms and conditions set forth in this section. If Landlord desires to sell
the Unit during the Term, Landlord will deliver to Tenant a copy of (a "Letter
of Intent") either a (i) letter of intent signed by Landlord and a bona fide
third party purchaser setting forth the material terms of the sale or (ii) a
list of material terms for a sale by Landlord to Tenant. Tenant will have 15
Business Days from receipt of the Letter of Intent to deliver to Landlord
written notice (the "Exercise Notice") of its intention to pursue purchase of
the Unit on the terms and conditions contained in the Letter of Intent or to
propose a counteroffer to Landlord. Tenant will have the right to deliver an
Exercise Notice only in connection with the entire Unit. Tenant's failure to
deliver the Exercise Notice or counteroffer to Landlord within the 15 Business
Day period will constitute its decision not to pursue purchase of the Unit. If
Tenant does not so deliver an Exercise Notice, or if Landlord and Tenant are
unable to reach agreement on all material terms of a sale within ten (10)
Business Days after delivery by Tenant of its counteroffer, then Landlord will
have the right to sell the Unit to any other person, provided the sale price is
not more than ten percent (10%) below the sale price offered to Tenant in the
Letter of Intent. If the sale price is more than ten percent (10%) below the
sale price offered to Tenant in the Letter of Intent, then Tenant will have a
right of first refusal to purchase the Unit on the same essential business terms
offered by the third party. Landlord will deliver to Tenant a copy of the third
party offer which Landlord desires to accept (a "Modified Letter of Intent");
Tenant will have 7 Business Days from receipt of the Modified Letter of Intent
to deliver an Exercise Notice to Landlord. As a condition of the effectiveness
of an Exercise Notice given under this right of first refusal, Tenant will,
within 7 Business Days after giving its Exercise Notice to Landlord, deliver to
Landlord a nonrefundable deposit equal to ten percent (10%) of the purchase
price set forth in the Modified Letter of Intent. If Tenant delivers the
Exercise Notice to Landlord within the 15 Business Day period or 7 Business Day
period, as the case may be, Landlord and Tenant will proceed to close the
purchase and sale of the Unit (a) within the time period, if any, accepted by
Tenant's Exercise Notice or (b) if there is no such agreed time period, within a
reasonable period of time not to exceed ninety (90) days. Landlord will also
provide Tenant with a commitment (the "Commitment") for an ALTA standard owner's
policy of title insurance (1970 form with 1984 revisions), issued by a title
insurance company selected by Landlord and reasonably acceptable to Tenant,
together with copies of all exceptions shown in the Commitment. Notwithstanding
the provisions of the applicable Letter of Intent or Modified Letter of Intent,
Tenant will have 10 days after receipt of said Commitment and copies of all
exceptions to object to any exceptions or other matters disclosed by the
Commitment, and will be deemed to have approved of all exceptions and matters
not objected to within said 10-day period. On or before the expiration of the
10-day period, Tenant may, at its option, withdraw the Exercise Notice. At the
closing, (i) Landlord will transfer title to the Unit by special warranty deed,
subject to no exceptions other than those approved by Tenant, (ii) Landlord will
pay the portion of the premium attributable to a standard form title insurance
policy, the real estate excise tax, and one half of the escrow
35.
fee, and (iii) Tenant will pay the portion of the title insurance premium
attributable to extended coverage and any endorsements desired by Tenant and one
half of the escrow fee. If Tenant does not timely deliver an Exercise Notice or
withdraws its Exercise Notice within the time period specified above, this right
of first opportunity to purchase the Unit will automatically terminate and
Landlord will be free to sell the Unit on terms and conditions that are not
materially different that those set forth in the applicable Letter of Intent or
Modified Letter of Intent. All Tenant's rights under this section are personal
to Tenant and may not be exercised by any assignee or subtenant of Tenant other
than an entity to which Tenant has assigned all or any of its interest in this
Lease as permitted by Section 13.1.2; provided, however, that at the time of any
such permitted assignment the instrument of assignment and assumption delivered
to Landlord pursuant to Section 13.1.2 will state that either (a) Tenant has
retained all of Tenant's rights under this section or (b) Tenant has assigned to
the permitted assignee all of Tenant's rights under this section. Landlord's
Mortgagee will not be required to comply with the terms of this section when
foreclosing its Mortgage or taking a deed in lieu of foreclosure of its
Mortgage. However, if Landlord's Mortgagee becomes the Landlord by purchasing
the Unit at the foreclosure sale or taking a deed in lieu of foreclosure,
Landlord's Mortgagee and its successors will comply with the terms of this
section in connection with its subsequent sale of the Unit. THE PARTIES HEREBY
AGREE THAT (a) TIME IS PARTICULARLY OF THE ESSENCE WITH RESPECT TO THE
PROVISIONS OF THIS SECTION; (b) NOTWITHSTANDING ANY LAW IN THE STATE OF
WASHINGTON, INCLUDING CASE LAW, TO THE CONTRARY, LANDLORD WILL BE UNDER NO DUTY
WHATSOEVER TO NOTIFY TENANT THAT TENANT HAS FAILED TO GIVE THE NOTICE IT HAS THE
RIGHT TO GIVE UNDER THE FOREGOING PROVISIONS OF THIS SECTION; AND (c) THE ENTIRE
PROVISIONS OF THIS SECTION HAVE BEEN SPECIALLY NEGOTIATED BY THE PARTIES.
Landlord will not deliver a Letter of Intent to Tenant prior to
September 1, 1999, provided nothing in this sentence is intended to prevent
Landlord from dealing with or providing information to potential lenders or
purchasers prior to September 1, 1999.
17.7 [RESERVED]
17.8 PARKING ALLOTMENT.
Parking for Union Station Condominium is located in the underground
parking garage ("Parking Garage") which is part of a separate condominium (the
"Base Unit") not owned or operated by Landlord. Landlord will arrange with the
Base Unit owner ("Garage Operator") for Tenant to have the right but not an
obligation to use up to the number of Executive Parking Stalls and Regular
Parking Stalls determined as set forth the in Parking Allotment described in the
Basic Terms during the Term of this Lease, subject to the rules and regulations
as may be established from time to time by the Garage Operator, provided that
(i) Tenant may, subject to the Parking Allotment, increase or decrease the
number of parking spaces licensed to it after giving Landlord not less than 30
days prior written notice of the increase or the reduction; (ii) no reduction
will be effective until Tenant surrenders to Landlord the keycards, stickers or
other identification materials used to provide garage access for the parking
spaces surrendered; (iii) absent a timely delivery of notice to increase or
reduce the number of licensed stalls, the number of stalls licensed to Tenant
will be the number of stalls licensed to it pursuant to the previous most recent
request; and (iv) if Landlord so requests, Tenant will deal directly with the
Garage Operator, rather than through Landlord, in connection with the terms and
conditions of parking in the Base Unit (but not with respect to Tenant's right
to use parking stalls, for which Landlord will at all times remain responsible).
Except during periods in which Landlord has directed Tenant to deal directly
with the Garage Operator, Tenant will pay Landlord the monthly charge (without
markup by Landlord) for all Executive Parking Stalls and Regular Parking Stalls
leased to Tenant during each calendar month on or before the first day of such
calendar month. "Executive Parking Stall" will mean a stall in the Parking
Garage which is located in a designated area within the Parking Garage available
to such users which are specifically set aside for Executive Parking Stall users
on a non-reserved basis and which will be available to such users on a 24 hour
basis throughout the entire calendar year and will not be subject to or limited
to Parking Hour. "Regular Parking Stall" will mean a parking stall available in
common with other users of the Parking Garage on a non-reserved basis, anywhere
in the Parking Garage other than stalls reserved for Executive Parking Stalls or
similar reserved parking, which is available to a user on a 24 hour basis
throughout the entire calendar year except for days when a Posted Event is
scheduled to occur. On days of Posted Events, the Regular Parking Stalls will be
limited to the Parking Hours. "Posted Event" means any event scheduled for the
Kingdome, the Football Stadium, the Baseball Stadium or the adjacent Exhibition
Hall, during non-Parking Hours, notice of which will be posted at the entrances
to the Parking Garage. "Parking Hours" will mean 7:00 o'clock a.m. to 6:00
o'clock p.m., Monday
36.
through Friday, and 7:00 o'clock a.m. to 12:00 o'clock noon on Saturday. In
addition to the Parking Allotment, as long as the same are made available by
Garage Operator, Tenant may lease additional Executive Parking Stalls or Regular
Parking Stalls on a month-to-month basis at the rate then being charged for such
stalls by Garage Operator.
Landlord and Union Station Associates, LLC, a Washington limited
liability company ("USA") are parties to that certain Real Property Purchase and
Sale Agreement dated as of May 28, 1999 (as amended to date, the "Purchase
Agreement"). USA is the holder of fee title to the Base Unit and is Garage
Operator as of the Effective Date of this Lease. The Purchase Agreement
contemplates that upon conveyance of fee title to the Property from USA to
Landlord, Landlord and USA will record a parking agreement and covenant (the
"Parking Agreement") pursuant to which, among other things, Landlord will have
the right to Lease up to one parking stall per 1,000 square feet of Rentable
Area of the Buildings, a portion of which stalls constitute Tenant's Parking
Allotment. Landlord agrees not to default under either the Purchase Agreement or
the Parking Agreement and agrees to cooperate with Tenant if Garage Operator
defaults under the Parking Agreement or the unrecorded addendum to parking
agreement and covenant (the "Parking Addendum") arising out of the Parking
Agreement and agrees not to amend in a manner which would adversely affect
Tenant, or to terminate, either the Parking Agreement or the Parking Addendum
without Tenant's prior written consent. In furtherance thereof, if Landlord
fails to pursue its rights against Garage Operator following a Garage Operator
default which could have a materially adverse impact upon Tenant, Tenant may,
upon not less than 30 days prior written notice to Landlord, elect to prosecute
the default at Landlord's expense; Landlord will cooperate with Tenant as
reasonably necessary in connection therewith. Landlord has delivered to Tenant a
copy of the form of Parking Agreement and Parking Addendum which USA and
Landlord have agreed to execute and deliver concurrently with the closing of
Landlord's purchase of the Property from USA pursuant to the Purchase Agreement.
17.9 [RESERVED]
17.10 HAZARDOUS MATERIALS.
Asbestos will not be utilized in the construction of the Building.
Landlord will not introduce any Hazardous Materials to the Building other than
office cleaning or other office supplies customarily used in the ordinary course
and in accordance with prudent industry practice.
The land below Union Station Condominium is affected by an
environmental remediation obligation to the Washington State Department of
Ecology. Landlord is the insured under an Environmental Response, Compensation
and Liability Insurance Policy issued by Xxxxxx Surplus Lines Insurance Company,
as its Policy No 4TG 000013 (the "Policy"). The Policy protects Landlord against
liability for the contamination that is the subject of the remediation
obligation. Landlord has the right to add Tenant as an insured on the Policy.
The Policy period is from June 01, 1999 to June 01, 2009, and Landlord has the
right to extend the Policy for an additional period of 10 years. Landlord
agrees: (i) promptly after the Effective Date, to add Tenant as an additional
insured on the Policy; (ii) to maintain the Policy in full force and effect
during the full stated policy period; and (iii) to add Tenant as an additional
insured on any renewal or extension of the Policy, or, if permitted by the terms
thereof, on any replacement policy; but nothing herein is intended to require
Landlord to renew or extend the Policy or purchase a replacement policy
17.11 SIGNS.
17.11.1 BUILDING STANDARD SIGNS.
Except as otherwise provided in this Lease, Tenant will not
install or permit to be installed in the Premises any sign, decoration or
advertising material of any kind that is visible from the exterior of the
Premises. Landlord may immediately remove, at Tenant's sole cost and expense,
any sign, decoration or advertising material that violates this section.
37.
17.11.2 OTHER PERMITTED SIGNS.
Tenant may, at its sole cost and expense, (subject to
obtaining any required approvals) install one or more of the following signs:
(1) exterior plaza and/or interior Building lobby monument signage; (2) Tenant's
name plate in one or all of the elevators, adjacent to the button for Tenant's
lobby; (3) Tenant's name plate in the Garage elevator lobby; and (4) if Tenant
becomes, and for as long as Tenant remains, the largest tenant in the Building
exterior building signage; provided that such signs referred to in clauses (1)
through (4) inclusive (a) do not cause any structural damage to the Building;
(b) do not violate any Laws; (c) are in accordance with the sign criteria
established by Landlord and the design guidelines established by the
International District; (e) are approved in advance by Landlord (which approval
will not be unreasonably withheld, conditioned or delayed), City and any other
entity required to approve such signs. Tenant will be solely responsible for the
maintenance, repair and replacement of all such signs and the repair,
restoration or replacement of any and all portions of the Property that are
affected by the signs. Tenant, upon vacating the Premises or removing or
altering its signs for any reason, will repair, restore and/or replace the
Property surfaces where its signs were attached.
17.12 SECURITY.
Building security will include a perimeter security access system with
card key readers at the elevators and all exterior entrances. Landlord will
cooperate with Tenant so as to provide maximum compatibility that is reasonably
practicable with Tenant's security systems at other locations provided Tenant
reimburses Landlord for any additional costs incurred by Landlord in connection
therewith. The installation of any card readers or other equipment for Tenant
will be included in the Cost of Construction of the Tenant's Improvements.
Landlord will also provide at least one security guard in the Building 24 hours
a day, 7 days a week, as part of Operating Expenses. The guard will be available
to escort Tenant's employees to their vehicles parked in the Parking Garage
after hours, as requested, at no additional charge to Tenant. Tenant will have
the right to request Landlord to upgrade the security system for the Building,
provided that Tenant will pay all costs of any kind or nature incident to any
such upgrade.
17.13 WAIVER OF LANDLORD'S LIEN.
Landlord waives any statutory lien against Tenant's property arising
out of RCW Chapter 60.72.
17.14 TELECOMMUNICATIONS LINES.
17.14.1 LANDLORD'S CONSENT.
Tenant may install, maintain, replace, remove, or modify
(each, a "Line Change") any portions of any Lines located outside the Premises
only with Landlord's prior written consent, which consent will not be
unreasonably withheld, conditioned or delayed. In exercising its discretion,
Landlord will take into consideration the fact that installation, maintenance,
repair, replacement, and expansion of, and access to and use of,
telecommunications lines is essential to Tenant's Permitted Use. Any Line Change
will be processed as an Alteration pursuant to Article 8 of this Lease;
provided, however, that Landlord's consent will not be required for routine
maintenance and repair so long as Tenant provides 48 hours' advance notice of
the work, or in case of emergency, such notices as may be reasonable under the
circumstances.
Landlord's approval of a Line Change will not be deemed a
warranty as to the adequacy thereof and Landlord hereby disclaims any
responsibility or liability for the same. Landlord disclaims all responsibility
for the condition or utility of the intra-building network cabling, including
the primary telephone cables running between the main telephone room or rooms
and a telecommunications closet on a floor of the Building (collectively, "INC")
and make no representation regarding the suitability of the INC for Tenant's
intended use. If Landlord consents to Tenant's Line Change, Tenant will: (a) pay
all costs in connection therewith (including all costs related to new Lines);
(b) comply with all requirements and conditions of this Lease; and (c) use,
maintain and operate the Lines. As soon as the work is completed, Tenant will
submit "as-built" drawings to Landlord.
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17.14.2 NEW PROVIDER INSTALLATIONS.
In the event the Tenant wishes at any time to utilize the
services of a telephone or telecommunications provider whose equipment is not
then servicing the Building, no such provider will be permitted to install its
Lines or other equipment within Union Station Condominium without first securing
the prior written approval of the Landlord, which will not be unreasonably
withheld, conditioned or delayed as provided in Section 17.14.1 above.
Landlord's approval will not be deemed any kind of warranty or representation by
Landlord, including, without limitation, any warranty or representation as to
the suitability, competence, or financial strength of the provider. Without
limitation of the foregoing standard, unless all of the following conditions are
satisfied to Landlord's satisfaction, it will be reasonable for Landlord to
refuse to give its approval: (a) Landlord will incur no expense whatsoever with
respect to any aspect of the provider's provision of its services, including
without limitation, the costs of installation, materials and services; (b) prior
to commencement of any work in or about Union Station Condominium by the
provider, the provider will supply Landlord with such written indemnities,
insurance, financial statements, and such other items as Landlord reasonably
determines to be necessary to protect its financial interests and the interests
of the Property relating to the proposed activities of the provider; (c) the
provider agrees in writing to abide by such rules and regulations, building and
other codes, job site rules and such other requirements as are reasonably
determined by Landlord to be necessary to protect the interests of the owners of
Union Station Condominium, the tenants in the Building, and the Landlord
Parties, in the same or similar manner as Landlord has the right to protect
itself and Union Station Condominium with respect to proposed Alterations as
described in this Lease; (d) landlord reasonably determines that there is
sufficient space in Union Station Condominium for the placement of all of the
provider's equipment and materials to the extent that space outside of the
Premises is required; (e) Landlord receives from provider such compensation as
is reasonably determined by Landlord to compensate it for space used in the
building (other than space within the Premises) for the storage and maintenance
of the provider's equipment, for the fair market value of a provider's access to
Union Station Condominium, and the costs which may reasonably be expected to be
incurred by Landlord in conjunction with the provider's occupancy of and
activities within Union Station Condominium (other than space within the
Premises), all of which compensation will be comparable to similar charges and
compensation received by Landlord from other providers selected by other tenants
in the building; and (f) all of the foregoing matters are documented in a
written agreement between Landlord and the provider, the form and content of
which is reasonably satisfactory to Landlord.
If Landlord wrongfully refuses to give its consent to a new provider,
Tenant will still have no right to terminate the Lease or claim an entitlement
to rent abatement, but may assert a claim for its direct damages. The provisions
of this paragraph may be enforced solely by Tenant and Landlord and their
respective successors in interest under this Lease, are not for the benefit of
any other Person, and specifically, but without limitation, no telephone or
telecommunications provider will be deemed a third party beneficiary of this
Lease.
In addition to any other indemnification obligations under this Lease,
Tenant will indemnify, protect, defend (with counsel reasonably chosen by
Tenant's insurer, or if there is no insurer, with counsel reasonably acceptable
to Landlord) and hold harmless the Landlord Parties from and against any and all
Claims arising out of or in any way related to the acts and omissions of Tenant,
Tenant's officers, directors, employees, agents, contractors, subcontractors,
subtenants, and invitees with respect to: (a) any Lines serving Tenant; (b) any
personal injury (including wrongful death) or property damage (real or personal)
arising out of or related to any Lines serving Tenant; (c) any lawsuit brought
or threatened, settlement reached, or governmental order relating to such Lines;
and (d) any violations of Laws or demands of governmental authorities, or any
reasonable policies or requirement of Landlord, which are based upon or in any
way related to such Lines. This indemnification obligation will survive the
expiration or termination of this Lease.
17.15 ELECTRIC UTILITY PROVIDER.
Landlord and Tenant acknowledge that various federal and state
initiatives are under way that are expected, over time, to result in
deregulation of the electric utility industry so that the historic, vertically
integrated monopoly for generation and delivery of electrical power and services
is replaced by market-priced elements of production, capacity, transmission and
ancillary services. Following any such deregulation giving Landlord a choice of
electric utility providers, (a) Landlord will endeavor to procure electric
utility service at competitive prices serving the best interests of all tenants
and other occupants of the Property, and (b) at such time as Tenant leases all
of the Rentable Area in the Building, Tenant shall have the right to select the
electric utility service provider to the Premises.
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17.16 INTEGRATION WITH CONDOMINIUM.
Article 19 of the Condominium Declaration contemplates that the
Building, will have all necessary easements in the Base Unit for support,
utilities, equipment and improvements, elevators, access and telecommunications
links and that the owner of the Base Unit will grant to Landlord as the owner of
Unit 4 and or Unit 3, specific easements for utilities, equipment and
improvements, elevators and telecommunications links in locations and under
terms and conditions approved by Landlord and the Base Unit owner. Landlord
agrees to obtain all such necessary easements and not to terminate or amend in
any way that would materially adversely affect Tenant or the Premises, either
any such easement or the Condominium Declaration, without Tenant's prior written
consent, which will not be unreasonably withheld or delayed.
17.17 LICENSE FOR SATELLITE EQUIPMENT SITE.
Tenant may throughout the Term, install, operate and maintain, at
Tenant's sole expense and risk, one or more satellite dishes and other antennas
and related communication equipment described in drawings and specifications
prepared by or on behalf of Tenant and approved by Landlord in writing (the
"Approved Equipment Plans"), together with required utility cabling
(collectively, the "Equipment"), provided that the maximum outside diameter of
any dish antenna will not exceed the diameter permitted by applicable Laws. The
Equipment will be mounted on the exterior of the Building using utility conduits
in locations and in the manner approved in advance in writing by Landlord. The
Equipment will be installed in accordance with the approved Equipment Plans.
On or before the first day of each calendar month (prorated for any
partial month in which the Equipment has been installed or removed in accordance
with this section, as the case may be), Tenant will pay to Landlord with the
monthly Basic Rent payable to Landlord pursuant to the Lease, in advance and
without notice, setoff or deduction, as Additional Rent, the sum (the "Satellite
Equipment Rent") equal to $250.00 for each dish or other antenna installed,
except there will be no charge for the first dish or other antenna installed by
Tenant. The Satellite Equipment Rent will be increased by 2.5% on the third
anniversary of the Commencement Date and on each third anniversary of the
Commencement Date thereafter.
The Equipment will be used solely for internal communications on a
non-fee basis and no other use without the prior written consent of Landlord,
which may be withheld or conditioned in Landlord's sole discretion. Tenant will
operate the Equipment in a manner that does not interfere with normal electronic
or communications equipment of any kind located in the Building.
Tenant will obtain all necessary licenses, permits and approvals
relating to installation and operation of the Equipment from state, federal and
other governmental authorities. Tenant will install, operate and maintain the
Equipment in accordance with all applicable laws, ordinances, rules and
regulations and in a manner that will not invalidate or increase the rate of any
insurance on the Premises or any other portion of the Building.
Tenant will, at Tenant's sole expense, maintain the Equipment in good
condition and repair and repair any damage to the Premises or any other portion
of the Building arising in connection with the installation, operation or
removal of the Equipment. Tenant will have reasonable access to the roof and
other common areas of the Building to facilitate the installation, use and
maintenance of the Equipment and the removal of the Equipment, at all times
subject to any reasonable regulation thereof by Landlord. In no event, however,
will Tenant place or keep personnel on the roof of the Premises, other than for
periodic visits by maintenance, repair or installation personnel. Tenant will
reimburse Landlord for all increased costs of maintaining the roof or utility
systems caused by the presence, operation or maintenance of the Equipment. Upon
termination of this License, Tenant will remove the Equipment from the Building,
repair all damage to the Building resulting from said removal and surrender the
site to Landlord in substantially the same order and condition as originally
delivered to Tenant, excepting ordinary wear and tear, damage by fire and other
casualty, and termination of this Lease pursuant to Article 11 or Article 12
excepted. If Tenant fails to so remove the Equipment and repair any damage,
Landlord may do so on Tenant's behalf, and Tenant will within ten (10) days
after receipt of Landlord's written demand pay to Landlord the actual costs
incurred by Landlord in so doing.
Tenant will be responsible for the costs and expenses of any and all
utilities and services supplied to the Premises which are consumed by Tenant in
installing or operating the Equipment, whether by Landlord or directly
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by utility companies. Landlord may require Tenant to install, at Tenant's sole
expense, separate meters for such utilities. Landlord will xxxx Tenant for any
of said utilities and services supplied by Landlord, and Tenant will pay said
charges, together with its monthly payments of Additional Rent. If items are not
separately metered, the charge will be based on the Landlord's engineer's
reasonable estimate of the cost of said utilities and services provided by
Landlord.
Installation, maintenance and use of the Equipment will not in any way
interfere with the systems of the Building or the quiet enjoyment of the
Property by any other tenant or occupant, including without limitation the use
of television, radio, telephone and other communications equipment and any other
communications apparatus now or hereafter located on the roof of the Building.
If Landlord receives complaints regarding interference with reception from
another tenant or occupant, and Landlord reasonably believes the source of the
interference is the Equipment, Tenant will take all steps necessary to stop the
interference. If in the reasonable opinion of Landlord, the interference is not
corrected within 48 hours of Tenant's receiving notice of the interference,
Tenant will cease the use of the Equipment until the interference is corrected.
Tenant's obligations under Section 10.3 extend to any Claims arising out of
Tenant's installation, operation, maintenance, use or removal of the Equipment,
or caused by or resulting from any act or omission of Tenant or Tenant's
contractors, subcontractors or engineers, or of any officer, agent, employee,
guest, invitee or visitor of any such person while performing services or acting
for Tenant pursuant to this section in, on or about the Building or caused by or
resulting from Tenant's breach of its other obligations under this section. The
Landlord Parties will not be responsible or liable to Tenant for any loss or
damage whatsoever that may occur to the Equipment, whether occasioned by or
through the acts or omissions of Landlord, its managing agent or employees.
Tenant will look solely to its insurance for recoveries of such loss or damage
Tenant and Landlord will promptly deliver to the other a copy of any
and all notices which it receives from third parties that the Equipment is or
may be in violation of any law, ordinance or regulation. Tenant will pay all
taxes of any kind or nature whatsoever levied upon the Equipment and all
licensing fees, franchise taxes and other charges, expenses and costs of any
nature whatsoever relating to the installation, ownership, maintenance and
operation of the Equipment. If the Equipment is assessed for tax purposes as
part of the Property or Landlord's personal property, Tenant will reimburse
Landlord within 30 days of written demand for all additional taxes, if any,
attributable to the Equipment.
Nothing in this section will prevent Landlord from licensing others to
use the roof for development, installation and operation of electromagnetic
radiation and reception facilities or FM broadcasting and two-way radio and
microwave transmission, provided such facilities do not unreasonably or
materially interfere with the operations of Tenant pursuant to its rights
granted herein, or with the functioning of Tenant's Equipment.
Tenant may upon not less than 30 days prior written notice to Landlord,
terminate the License created by this section and remove all Equipment from the
Building in compliance with the fifth paragraph of this Section 17.17.
17.18 SECURITY DEPOSIT.
17.18.1 GENERAL REQUIREMENTS.
Within twenty-one (21) days after execution of this Lease,
Tenant will pay or otherwise provide to Landlord, as required or permitted by
this section, a security deposit (the "Security Deposit") in the amount of per
square foot of Rentable Area of the Premises. For purposes of the initial
Security Deposit, the parties have assumed that the Rentable Area of the
Premises is 249,970 square feet; promptly after the final Rentable Area has been
determined pursuant to the second paragraph of Section 1.1 and Section 17.7, the
Security Deposit initially provided will be increased or decreased accordingly.
Commencing with the first day of the fourth Lease Year, provided there is no
Event of Default under the Lease, the Security Deposit will be reduced by twenty
percent (20%) per Lease Year until the Security Deposit is reduced to $0.
Notwithstanding the foregoing sentence, the Security Deposit will not be reduced
below a sum equal to the last month's Basic Rent and estimated Operating
Expenses as reasonably determined by Landlord, except in accordance with Section
17.18.5. The amount of the Security Deposit required under this section is the
"Security Deposit Amount." In addition to the foregoing reductions, if and when
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Tenant's credit rating reaches a level BBB or its equivalent, then the formula
for reduction of the amount of the Security Deposit set forth in Section 17.18.5
will apply.
Tenant can elect to satisfy the Security Deposit Amount either
with cash, a letter of credit, or pledged marketable securities from Tenant's
corporate cash investment portfolio. Landlord will hold the Security Deposit as
security for the performance of Tenant's obligations under the Lease. The
Security Deposit will not be considered an advance payment of Rent or a measure
of Tenant's liability for damages. Landlord may, from time to time, without
prejudice to any other remedy, upon the occurrence of an Event of Default, use
all or a portion of the Security Deposit to make good any arrearage of Rent, to
repair damages to the Premises, to clean the Premises upon termination of the
Lease or otherwise to satisfy any other covenant or obligation of Tenant under
the Lease, in each case to the extent Tenant is liable therefor under the terms
of the Lease. Following any such application of the Security Deposit, Tenant
will restore the Security Deposit to its Security Deposit Amount. Any assignment
of the Lease by Landlord, whether voluntary or through involuntary assignment or
transfer such as bankruptcy or foreclosure, will automatically and without
further action by either party cause an assignment of the Security Deposit
(whether cash, marketable securities, or a letter of credit) to the assignee
(and the parties will execute such documents as necessary to reflect such
assignment), and upon the assignee's assumption of Landlord's obligations under
the Lease (including Landlord's obligations with respect to the Security
Deposit), Landlord thereafter will have no further liability for the return of
such Security Deposit and in such circumstances Tenant agrees to look solely to
such transferee or assignee for the return of the Security Deposit. Landlord and
its successors and assigns will not be bound by any actual or attempted
assignment or encumbrance of the Security Deposit by Tenant, provided, however,
if Tenant's interest in the Lease has been assigned, Landlord will, provided
that Landlord has been furnished with a fully executed copy of the agreement
assigning such Security Deposit, return the Security Deposit to such assignee in
accordance with the terms and conditions hereof. If Landlord returns the
Security Deposit to Tenant's assignee as aforesaid, Landlord will have no
further obligation to any party with respect thereto.
17.18.2 CASH SECURITY DEPOSIT:
At the option of Tenant Tenant may elect to provide all or any
portion of the Security Deposit in the form of cash. If Tenant elects to satisfy
all or any portion of the Security Deposit with cash, Landlord will be required
to keep the Security Deposit invested and separate from its other accounts.
Furthermore, Landlord will credit all interest and other income capital gains
earned or generated by the Security Deposit to Tenant, and will return all such
interest and capital gains to Tenant upon Tenant's written request.
17.18.3 LETTER OF CREDIT / SECURITY DEPOSIT:
At the option of Tenant, Tenant may elect to provide all or
any portion of the Security Deposit in the form of a letter of credit (the
"LOC"). The LOC will be an irrevocable and unconditional standby letter of
credit, issued by a financial institution determined by Tenant, satisfactory to
Landlord and with a term of at least one year, drawable by Landlord upon
presentation, and substantially in the form of EXHIBIT L attached hereto.
Landlord may draw upon the LOC under the same terms and conditions as Landlord
may apply a cash security deposit; provided, however, that the parties agree
that the reference to "USD$500" on page L-2 of EXHIBIT L may be increased at the
rate of 3 percent per annum on each anniversary of the Commencement Date. In
addition, Landlord may draw upon the LOC if Tenant fails to deliver to Landlord
no later than thirty (30) days prior to the expiration date of the existing LOC
a renewal or extension of the LOC for a term of not less than one year.
Notwithstanding the foregoing, and unless a renewal or extension of the LOC has
not been delivered to Landlord thirty (30) days prior to the expiration date of
the existing LOC, Landlord will give Tenant 5 Business Days prior written notice
before drawing upon the LOC.
17.18.4 PLEDGED SECURITIES/ SECURITY DEPOSIT:
At the option of Tenant, Tenant may elect to provide all or
any portion of the Security Deposit by pledging for the benefit of Landlord
marketable securities with a market value equal to the Security Deposit Amount.
The pledge will be of short term (three (3) years or less) fixed income
marketable securities from Tenant's corporate cash investment portfolio,
including money market funds, rated A-/A3 or equivalent by a nationally
recognized credit rating service. The pledged marketable securities will be held
by a bank or financial institution mutually approved by Landlord and Tenant as
custodian for Landlord, either in a separate custodian account or as specially
designated securities within a larger custodian account. The pledge agreement
must be substantially in the
42.
form of EXHIBIT M attached hereto and provide Landlord with a perfected first
lien security interest in the pledged securities. The custodial agreement must
be substantially in the form of EXHIBIT N attached hereto, and provide direct
access authorization which would permit Landlord in an Event of Default, without
approval of Tenant, to authorize the sale of the securities and the withdrawal
of the proceeds thereof (not to exceed the amount of the then required Security
Deposit) for application by Landlord on the same terms and conditions as
Landlord could draw on a LOC in an Event of Default. Tenant will be entitled to
retain all interest and other income capital gains earned or generated by the
pledged securities.
At all times, the value of the pledged securities if they are
held in the form of corporate bonds must equal or exceed 115% of the amount then
required, however such amount will be reduced to 110% if not more than 50% of
such securities are held in the form of corporate bonds. If the market value of
the pledged securities drops below the required level of the then-required
Security Deposit, Tenant will immediately add additional marketable securities
to the pledge to increase the value of the pledged securities to equal or exceed
the required level. Failure of Tenant to increase the pledged securities as
required within 3 Business Days of notice from Landlord and/or the account
custodian will constitute an Event of Default. Tenant will have the right to
substitute additional marketable securities for the securities subject to the
pledge, provided Landlord obtains a perfected first lien security interest in
the substituted securities prior to the release of the pledged securities.
17.18.5 REDUCTION OF SECURITY DEPOSIT:
17.19 SPECIAL CONTINGENCY.
Landlord will diligently and in good faith endeavor, on or before
December 31, 1999 (the "Special Contingency Date") to: (i) cause the working
drawings and specifications for the Building to be completed, which plans and
specifications will be substantially in accordance with the plans and
specifications for the Building, a portion of which is leased to Tenant pursuant
to the Other Amazon Lease, which plans and specifications will also be subject
to Tenant's reasonable approval, which shall not be unreasonably withheld,
conditioned or delayed; (ii) confirm entitlements and permit schedules; (iii)
obtain project financing acceptable to Landlord; and (iv) prepare the final
project schedule for Tenant's approval, which approval will not be unreasonably
withheld, conditioned or delayed. Landlord will diligently and in good faith
endeavor to achieve and eliminate the foregoing contingencies as soon as
possible and, in any event, on or before the Special Contingency Date. If
Landlord is not satisfied that it has or will be able to remove the foregoing
contingencies to its satisfaction, Landlord may terminate this Lease by notice
to Tenant on or before the Special Contingency Date. Upon such termination
neither party shall have any Claim against the other arising out of or in
connection with this Lease except Landlord will reimburse Tenant, within 30 days
of invoice accompanied by reasonable supporting data, for Tenant's Out of Pocket
Expenses not in excess of $125,000.
17.20 DISASTER RECOVERY PLAN.
Landlord will, on or before 90 days prior to the Commencement Date,
cause a disaster recovery plan reasonably acceptable to Tenant to be developed
and implemented for the Building, the principal purpose of which will be to
enable the Building to be restored to fully operational status as soon as
possible following damage or destruction. All costs of developing and updating
any such plan shall constitute Operating Expenses.
43.
ARTICLE 18
INSOLVENCY
Landlord and Tenant (as either debtor or debtor-in-possession) agree
that if a petition is filed by or against Tenant (each a "Petition") under any
chapter of the Bankruptcy Code, and is not dismissed within 120 days: (a) Tenant
will perform each and every obligation of Tenant under this Lease, until such
time as this Lease is either rejected or assumed; (b) adequate protection for
the performance of Tenant's post-Petition but pre-assumption or pre-rejection
obligations under this Lease will be provided within 120 Business Days after the
filing and will be in the form of a security deposit to be held by the court or
an independent escrow agent approved by the court, in an amount equal to all
amounts then payable by Tenant to Landlord under the terms of the Lease during a
one-month period; (c) Tenant will give Landlord at least 30 days' prior written
notice of any abandonment of the Premises; (d) if Tenant abandons the Premises,
Tenant stipulates to the entry, without notice to any party, of an ex parte
order modifying the stay to permit Landlord to take reasonable steps to secure
the Premises, including changing the locks, putting lights on timers and
covering the windows; (e) if Tenant has failed to timely and fully perform any
of its obligations under this Lease before the filing of the Petition, whether
or not Landlord has given Tenant written notice of said failure and whether or
not any time period for performance or cure set forth in Article 14 has expired
before the filing of the Petition, a Tenant Event of Default would have deemed
to have been in existence on the date the Petition was filed; (f) Tenant will
provide Landlord with 30 days' prior written notice of the proposed assumption
or assignment of this Lease, which notice will set forth (1) the compensation
for pecuniary loss to be provided to Landlord, (2) the adequate assurance of
prompt cure and future performance to be provided to Landlord, (3) the name,
address, state and federal tax identification numbers, and any other federal,
state or local registration numbers, of any proposed assignee and (4) all of the
terms and conditions of any proposed assignment; (g) prompt cure of Events of
Default will mean cure within 30 days after assumption; (h) adequate assurance
of future performance of this Lease after assumption by Tenant or any proposed
assignee will require that Tenant or the proposed assignee deposit with Landlord
as security for such future performance, an amount equal to 3 months of Basic
Rent and Additional Rent; and (i) if this Lease is to be assigned, adequate
assurance of future performance by the proposed assignee will also require that
(1) the assignee demonstrate that it has the business experience and financial
ability to perform Tenant's obligations under this Lease and operate the
Premises in the manner contemplated by this Lease, (2) the Premises will remain
a single space and no physical changes of any kind will be made to the Premises
without complying with the applicable provisions of this Lease and (3) the
assignee assumes any obligations of Tenant to pay for improvements to the
Premises constructed by Landlord, which obligations are contained in any
agreement or instrument other than this Lease. Tenant will do all other things
of benefit to Landlord that are otherwise permitted under the Bankruptcy Code.
ARTICLE 19
MISCELLANEOUS PROVISIONS
19.1 NOTICES.
All Notices must be in writing and must be sent by personal delivery,
United States registered or certified mail (postage prepaid) or by an
independent overnight courier service, addressed to the addresses specified in
the Basic Terms or at such other place which is not a post office box as either
party may designate to the other party by written notice given in accordance
with this section. Notices given by mail are deemed effective within three
Business Days after the party sending the Notice deposits the Notice with the
United States Post Office. Notices delivered by courier are deemed effective on
the next Business Day after the day the party delivering the Notice timely
deposits the Notice with the courier for overnight (next day) delivery.
19.2 TRANSFER OF LANDLORD'S INTEREST.
If Landlord Transfers any interest in the Premises for any reason other
than collateral security purposes, the transferor is automatically relieved of
all obligations on the part of Landlord accruing under this Lease from and after
the date of the Transfer, provided that the transferee assumes the obligations
of Landlord under this Lease from and after the date of the Transfer.
44.
19.3 SUCCESSORS.
Subject to applicable limitations set forth in this Lease, the
covenants and agreements contained in this Lease bind and inure to the benefit
of Landlord, its successors and assigns, bind Tenant and its successors and
assigns and inure to the benefit of Tenant and its successors and assigns.
19.4 CAPTIONS AND INTERPRETATION.
The captions of the articles and sections of this Lease are to assist
the parties in reading this Lease and are not a part of the terms or provisions
of this Lease. Whenever required by the context of this Lease, the singular
includes the plural and the plural includes the singular. Whenever words such as
"herein," "hereunder," etc., are used in this Lease, they will mean and refer to
this Lease in its entirety and not to any specific section, paragraph or other
part of this Lease.
19.5 RELATIONSHIP OF PARTIES.
This Lease does not create the relationship of principal and agent, or
of partnership, joint venture, or of any association or relationship between
Landlord and Tenant other than that of landlord and tenant
19.6 ENTIRE AGREEMENT; AMENDMENT.
The Basic Terms and all exhibits, addenda and schedules attached to
this Lease are incorporated into this Lease as though fully set forth in this
Lease and together with this Lease contain the entire agreement between the
parties with respect to the improvement and leasing of the Premises. All prior
and contemporaneous negotiations, including, without limitation, any letters of
intent or other proposals and any drafts and related correspondence, are merged
into and superseded by this Lease. No subsequent alteration, amendment, change
or addition to this Lease (other than to the Building Rules) is binding on
Landlord or Tenant unless it is in writing and signed by the party to be charged
with performance.
19.7 SEVERABILITY.
If any covenant, condition, provision, term or agreement of this Lease
is, to any extent, held invalid or unenforceable, the remaining portion thereof
and all other covenants, conditions, provisions, terms and agreements of this
Lease, will not be affected by such holding, and will remain valid and in force
to the fullest extent permitted by law.
19.8 LANDLORD'S LIMITED LIABILITY.
Except for Landlord's obligations under Section 17.1, Tenant will look
solely to Landlord's interest in the Property for recovering any judgment from
Landlord or any other Landlord Party. Tenant agrees that neither Landlord nor
any other Landlord Party will be personally liable for any personal judgment or
deficiency decree or judgment against it.
19.9 SURVIVAL.
All of Tenant's and Landlord's obligations under this Lease (together
with interest on payment obligations at the Maximum Rate) accruing prior to
expiration or other termination of this Lease survive the expiration or other
termination of this Lease. Further, all of Tenant's and Landlord's release,
indemnification, defense and hold harmless obligations under this Lease survive
the expiration or other termination of this Lease, without limitation.
19.10 ATTORNEYS' FEES.
In the event of any litigation or other proceeding, declaratory or
otherwise, arising out of this Lease, including an action to collect or enforce
a judgment or order entered in any such litigation or proceeding, the prevailing
party will recover its attorneys' fees from the nonprevailing party, in an
amount which will be fixed by
45.
the court. If Landlord engages counsel to enforce the terms of this Lease
(including for the purpose of preparing a delinquency notice), Tenant will
reimburse Landlord for all attorneys' fees incurred before any subject Event of
Default is considered cured. As used in this Lease, "attorneys' fees" means all
costs, damages and expenses, including attorneys', paralegals', clerical and
consultants' respective fees and charges actually expended or incurred in
connection therewith, including for appeals.
Tenant will indemnify, defend (with counsel reasonably acceptable to
Landlord), protect and hold harmless the Landlord Parties from and against all
Claims Landlord or any of the other Landlord Parties incurs if Landlord or any
of the other Landlord Parties becomes or is made a party to any claim or action
(a) instituted by Tenant against, or instituted against Tenant by, any person
holding any interest in the Premises by, under or through Tenant; (b) for
foreclosure of any lien for labor or material furnished to or for Tenant or such
other person; or (c) otherwise arising out of or resulting from any act or
omission of Tenant or such other person. In addition to the foregoing, Landlord
is entitled to reimbursement of all of Landlord's fees, expenses and damages,
including, but not limited to, reasonable attorneys' fees Landlord incurs in
connection with protecting its interests in any bankruptcy or insolvency
proceeding involving Tenant, including, without limitation, any proceeding under
any chapter of the Bankruptcy Code; by asserting or defending a claim; by
defending a preference or fraudulent transfer action; by exercising and
advocating rights under Section 365 of the Bankruptcy Code; by proposing a plan
of reorganization and objecting to competing plans; and by filing motions for
relief from stay. Such fees and expenses are payable on demand, or, in any
event, upon assumption or rejection of this Lease in bankruptcy.
Landlord will indemnify, defend (with counsel reasonably acceptable to
Tenant), protect and hold harmless the Tenant from and against all Claims Tenant
incurs if Tenant becomes or is made a party to any claim or action (a)
instituted by Landlord against, or instituted against Landlord by, any person
holding any interest in the Premises by, under or through Landlord (other than
Tenant or anyone holding through Tenant); (b) for foreclosure of any lien for
labor or material furnished to or for Landlord or such other person (other than
Tenant or anyone holding through Tenant) or (c) otherwise arising out of or
resulting from any act or omission of Landlord or such other person (other than
Tenant or anyone holding through Tenant). In addition to the foregoing, Tenant
is entitled to reimbursement of all of Tenant's fees, expenses and damages,
including, but not limited to, reasonable attorneys' fees Tenant incurs in
connection with protecting its interests in any bankruptcy or insolvency
proceeding involving Landlord or any of the other Landlord Parties, including,
without limitation, any proceeding under any chapter of the Bankruptcy Code; by
asserting or defending a claim, by defending a preference or fraudulent transfer
action; by exercising and advocating rights under Section 365 of the Bankruptcy
Code, by proposing a plan of reorganization and objecting to competing plans;
and by filing motions for relief from stay. Such fees and expenses are payable
on demand, or, in any event, upon assumption or rejection of this Lease in
bankruptcy.
19.11 BROKERS.
Tenant represents and warrants to Landlord that it has not had any
dealings with any realtors, brokers, finders or agents in connection with this
Lease, except the Brokers set forth in the Basic Terms. Each of Landlord and
Tenant agrees to release and will indemnify, defend and hold the other harmless
from and against any Claim based on the failure or alleged failure to pay any
compensation, commission or changes claimed by any other realtors, brokers,
finders or agents claiming by, through or on behalf of it with respect to this
Lease or the negotiation of this Lease.
19.12 GOVERNING LAW.
This Lease is governed by, and must be interpreted under, the internal
laws of the State. Any suit arising from or relating to this Lease must be
brought in the County; Landlord and Tenant waive the right to bring suit
elsewhere.
19.13 TIME IS OF THE ESSENCE.
Time is of the essence with respect to the performance of every
provision of this Lease in which time of performance is a factor.
46.
19.14 JOINT AND SEVERAL LIABILITY.
All parties signing this Lease as Tenant and any Guarantors of this
Lease are jointly and severally liable for performing all of Tenant's
obligations under this Lease.
19.15 BARRIER CODE.
The Common Areas in the portions of the Building and the Premises
designed by Landlord's architect will comply in all material respects with the
Barrier Free Code of the State of Washington, applicable to the Property on the
Commencement Date,
19.16 TENANT'S ORGANIZATION DOCUMENTS; AUTHORITY.
Tenant and each individual signing this Lease on behalf of Tenant
represents and warrants that they are duly authorized to sign on behalf of and
to bind Tenant and that this Lease is a duly authorized obligation of Tenant.
Tenant will deliver to Landlord, prior to Landlord's execution of this Lease, a
certified copy of a resolution of the Board of Directors of Tenant, signed by
the secretary or an assistant secretary of Tenant, confirming the authorization
of Tenant's signator to execute and deliver this Lease on behalf of Tenant.
19.17 PROVISIONS ARE COVENANTS AND CONDITIONS.
All provisions of this Lease, whether covenants or conditions, are
deemed both covenants and conditions.
19.18 FORCE MAJEURE.
If Landlord is delayed or prevented from performing any act required in
this Lease (excluding, however, the payment of money) by reason of Tenant Delay
or Force Majeure, Landlord's performance of such act is excused for the longer
of the period of delay or the period of delay caused by such Tenant Delay or
Force Majeure and the period of the performance of any such act will be extended
for a period equivalent to such longer period.
If Tenant is delayed or prevented from performing any act required in
this Lease (excluding, however, the payment of money) by reason of Landlord's
failure timely to perform its obligations under Section 17.1 or Force Majeure,
Tenant's performance of such act is excused for the longer of the period of
delay or the period of delay caused by such Landlord's failure timely to perform
its obligations under Section 17.1 or Force Majeure and the period of the
performance of any such act will be extended for a period equivalent to such
longer period.
Nothing in this lease is intended to restrict or prohibit Tenant from
taking such action as it deems prudent and reasonable, at its sole cost and
expense, to minimize or overcome the effect of Force Majeure, so long as such
action does not interfere with the rights or obligations of Landlord under this
Lease.
19.19 MANAGEMENT.
Property Manager is authorized to manage the Property. Landlord
appointed Property Manager to act as Landlord's agent for leasing, managing and
operating the Property. The Property Manager then serving is authorized to
accept service of process and to receive and give notices and demands on
Landlord's behalf.
19.20 FINANCIAL STATEMENTS.
Tenant will, prior to Tenant's execution of this Lease and within 10
days after Landlord's request at any time during the Term, deliver to Landlord
complete, accurate and up-to-date financial statements with respect to Tenant,
which financial statements must be (a) prepared according to generally accepted
accounting principles consistently applied, and (b) certified by an independent
certified public accountant or by Tenant's chief financial officer that the same
are a true, complete and correct statement of Tenant's financial condition as of
the date of such financial statements. This section will not apply to
Xxxxxx.xxx, Inc. or any Affiliate for so long as the stock of Xxxxxx.xxx is
publicly traded over the counter or on a national securities exchange.
47.
19.21 QUIET ENJOYMENT.
Landlord covenants that Tenant will have quiet enjoyment of the
Premises during the Term, without disturbance by Landlord or any person claiming
by, through or under Landlord, subject to the terms and conditions of this
Lease, if Tenant pays all Rent as and when due and keeps, observes and fully
satisfies all other covenants, obligations and agreements of Tenant under this
Lease.
19.22 SHORT FORM: TITLE INSURANCE.
This Lease will not be recorded. At the request of either party,
Landlord and Tenant will execute and deliver to the other a short form
memorandum of this Lease in form and content mutually acceptable to both
parties. Tenant may in its discretion and at its expense record the memorandum
and obtain a leasehold policy of title insurance insuring its leasehold estate
in the Premises and Landlord shall cooperate as may be reasonably required in
order to obtain the issuance of such a policy.
19.23 CONFIDENTIALITY OF LEASE AND LEASE MATTERS.
Each of Landlord and Tenant agrees that the terms and conditions of
this Lease and details regarding its negotiation are and shall remain
confidential between Landlord and Tenant, except that Landlord and Tenant shall
have the right to disclose this Lease and its terms to any lender (or potential
tender) or to a purchaser (or potential purchaser) of its interest in the
Building, and to its respective legal counsel, accountants and other financial
advisors or analysts, who have a need to know and have agreed to the foregoing
limits on use and confidentiality, except as required by law, or by governmental
regulation, requirement or order, or as may be necessary to establish or assert
its rights hereunder. Neither Landlord nor Tenant will distribute, copy or
otherwise submit this Lease or any summary thereof, orally or in writing, to any
other person.
[Rest of page intentionally left blank]
48.
19.24 CONSTRUCTION OF LEASE AND TERMS.
The terms and provisions of this Lease represent the results of
negotiations between Landlord and Tenant, each of which are sophisticated
parties and each of which has been represented or been given the opportunity to
be represented by counsel of its own choosing, and neither of which has acted
under any duress or compulsion, whether legal, economic or otherwise.
Consequently, the terms and provisions of this Lease must be interpreted and
construed in accordance with their usual and customary meanings, and Landlord
and Tenant each waive the application of any rule of law that ambiguous or
conflicting terms or provisions contained in this Lease are to be interpreted or
construed against the party who prepared the executed Lease or any earlier draft
of the same. Landlord's submission of this instrument to Tenant for examination
or signature by Tenant does not constitute a reservation of or an option to
lease and is not effective as a lease or otherwise until Landlord and Tenant
both execute and deliver this Lease. The parties agree that, regardless of which
party provided the initial form of this Lease, drafted or modified one or more
provisions of this Lease, or compiled, printed or copied this Lease, this Lease
is to be construed solely as an offer from Tenant to lease the Premises,
executed by Tenant and provided to Landlord for acceptance on the terms set
forth in this Lease, which acceptance and the existence of a binding agreement
between Tenant and Landlord may then be evidenced only by Landlord's execution
of this Lease.
Landlord and Tenant each caused this Lease to be executed and delivered
by its duly authorized representative to be effective as of the Effective Date.
LANDLORD:
Date: 8/23/99 OPUS UNION STATION, L.L.C.
a Delaware limited liability company
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxx, Vice President
TENANT:
XXXXXX.XXX, INC.,
a Delaware corporation
By: /s/ Xxxxxx Xxxx, Xx.
----------------------------------------
Xxxxxx Xxxxx, Xx., President and Chief
Operating Officer
49.
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
I certify that I know or have satisfactory evidence that
XXXXXX X. XXXXXXX is the person who appeared before me, and said person
acknowledged that he signed this instrument, on oath stated that he was
authorized to execute the instrument and acknowledged it as the Vice President
of OPUS UNION STATION, L.L.C., a Delaware limited liability company, to be the
free and voluntary act of such party for the uses and purposes mentioned in the
instrument.
Dated: August 20, 1999
/s/ Xxxxx X. Xxxxxxxxxx
----------------------------------------
(Signature of Notary Public)
Xxxxx X. Xxxxxxxxxx
----------------------------------------
(Printed Name of Notary Public)
My Appointment expires 6/15/2002
STATE OF WASHINGTON )
) ss
COUNTY OF KING )
I certify that I know or have satisfactory evidence that
XXXXXX XXXXX, XX. is the person who appeared before me, and said person
acknowledged that he signed this instrument, on oath stated that he was
authorized to execute the instrument and acknowledged it as the President of
XXXXXX.XXX, INC., a Delaware corporation, to be the free and voluntary act of
such party for the uses and purposes mentioned in the instrument.
Dated: August 20, 1999
/s/ Xxxxx X. Xxxxxxxxxx
----------------------------------------
(Signature of Notary Public)
Xxxxx X. Xxxxxxxxxx
----------------------------------------
(Printed Name of Notary Public)
My Appointment expires 11-20-99
50.
EXHIBIT A
DEFINITIONS
"ADDITIONAL RENT" means any charge, fee or expense (other than Basic Rent)
payable by Tenant under this Lease, however denoted.
"AFFILIATE" means (a) any person that, directly or indirectly, Controls, is
Controlled by or is under common Control with Tenant; (b) any Entity resulting
from a merger or consolidation with Tenant, and (c) any Entity succeeding to the
business and substantially all of the assets and goodwill of Tenant.
"ALTERATION" means any change, alteration, addition or improvement to the
physical structure of the Premises or Property but will exclude the initial
buildout of the Premises.
"BANKRUPTCY CODE" means the United States Bankruptcy Code as the same now exists
and as the same may be amended, including any and all rules and regulations
issued pursuant to or in connection with the United States Bankruptcy Code now
in force or in effect after the Effective Date.
"BASIC RENT" means the Basic Rent amounts specified in the Basic Terms.
"BASIC TERMS" means the terms of this Lease identified as the "Basic Terms"
before Article 1 of the Lease.
"BOMA STANDARDS" means the "Standard Method for Measuring Floor Area in Office
Buildings" approved June 7, 1996 by the American National Standards Institute,
Inc. and the Building Owners and Managers Association International (ANSI/BOMA
Z65.1-1996).
"BUILDING" means both the office building and related improvements in Unit 4,
which is located approximately as shown on the Site Plan as the Opus Center
South Building.
"BUILDING RULES" means those certain rules attached to this Lease as EXHIBIT E,
as Landlord may amend the same from time to time.
"BUSINESS DAYS" means any day other than Saturday, Sunday or a legal holiday in
the State.
"BUSINESS HOURS" means Monday through Friday from 7:00 a.m. to 6:00 p.m. and on
Saturdays from 8:00 a.m. to 1:00 p.m., excluding national holidays.
"CITY" means Seattle, Washington.
"CLAIMS" means all claims, actions, demands, liabilities, damages, costs,
penalties, forfeitures, losses or expenses, including, without limitation,
reasonable attorneys' fees and the costs and expenses of enforcing any
indemnification, defense or hold harmless obligation under the Lease.
"COMMENCEMENT DATE" means the later of (a) the Delivery Date specified in the
Basic Terms, (b) 30 days after the Premises has been delivered to Tenant
pursuant to and for the purposes set forth in Section 1.2.4 or (c) the date of
Substantial Completion of the Tenant's Improvements, unless Landlord does not
achieve Substantial Completion of the Tenant's Improvements on or before the
Delivery Date because of Tenant Delays, in which event the Commencement Date is
the later of (x) the Delivery Date (y) 30 days after the Premises has been
delivered to Tenant pursuant to and for the purposes set forth in Section 1.2.4
or (z) the date the Tenant's Improvements would have been substantially
completed in accordance with the definition of Substantial Completion but for
the delay attributable to the delay attributable to the Tenant Delays, provided
that the first fifteen (15) days of Tenant Delays will be disregarded for
purposes of this clause (z). Notwithstanding the foregoing, if Tenant commences
business operations in any of the Premises after the date of Substantial
Completion but before the Delivery Date, the Commencement Date will be the date
in which Tenant so commences business operations in the Premises.
A-1.
"COMMENCEMENT DATE MEMORANDUM" means the form of memorandum attached to the
Lease as EXHIBIT D.
"COMMON AREA" means the lobby areas, and other interior or exterior areas of the
Property Landlord may designate from time to time as common area available to
all tenants.
"COMPARABLE SPACE" means a comparable amount of space (considering the standard
of measurement by which square footage is measured) in comparable condition (for
example, shell or second generation) on a comparable floor and with a comparable
view located in a building of comparable age and construction, with a comparable
number of floors, a floor plate of comparable size and configuration and
offering comparable services and amenities.
"CONDEMNING AUTHORITY" means any person or entity with a statutory or other
power of eminent domain.
"CONDOMINIUM DECLARATION" means the restated and amended Declaration and
Covenants, Conditions, Restrictions and Reservations for Union Station, a
condominium, recorded in the records of King County, Washington, under recording
number 9811171094, as now or hereafter amended or restated in the records of
King County, Washington.
"CONTROL" means the possession of the power to direct or cause the direction of
the management and policies of Tenant, whether through ownership of voting
securities, by contract or otherwise.
"COST OF CONSTRUCTION" means (a) Landlord's out-of-pocket costs (including sales
and excise taxes) incurred in the design or construction of the Tenant's
Improvements; (b) premiums for builder's risk, workers compensation and
liability insurance directly related to the construction of the Tenant's
Improvements; (c) costs of obtaining building permits, water, sewer and utility
tap fees; and (d) compensation to Landlord or its affiliate for actual overhead
and general conditions (not to exceed 8 percent of the costs described in (a),
(b) and (c) of this definition), and (e) a fee as a general contractor in an
amount equal to three percent (3%) of the costs described in clauses (a), (b)
and (c) of this definition.
"COUNTY" means King County, Washington.
"CPI" means the Consumer Price Index for All Urban Consumers, U.S. city average,
all items, 1982-84 equals base. If the said Index is discontinued, then "CPI"
will mean the closest successor index reasonably selected by Landlord.
"DELIVERY DATE" means either the target date for Landlord's delivery of Floors
11 and 12 of the Premises to Tenant, which is the delivery date specified in the
Basic Terms, or the delivery date established for other portions of the Premises
pursuant to Section 17.1.14, as the context may require.
"EFFECTIVE DATE" means the date Landlord executes this Lease.
"ENTITY" means any Person not a natural person.
"EVENT OF DEFAULT" means the occurrence of any of the events specified in
Section 14.1 of the Lease.
"FINAL PLANS" means the final working drawings and specifications for the
Tenant's Improvements prepared by Tenant and approved by Landlord.
"FLOOR PLANS" means the floor plans attached to the Lease as EXHIBIT C.
"FORCE MAJEURE" means acts of God; strikes; lockouts; labor troubles; inability
to procure materials, despite commercially reasonable efforts to procure the
materials; governmental laws or regulations; orders or directives of any
legislative, administrative, or judicial body or any governmental department
inability to obtain any governmental permits, licenses, permissions or
authorizations (despite commercially reasonable pursuit of such permits,
licenses, permissions or authorizations); and other similar or dissimilar causes
beyond a party's reasonable control.
A-2.
"HAZARDOUS MATERIALS" means any of the following, in any amount: (a) any
petroleum or petroleum product, asbestos in any form, urea formaldehyde and
polychlorinated biphenyls; (b) any radioactive substance; (c) any toxic,
infectious, reactive, corrosive, ignitable or flammable chemical or chemical
compound; and (d) any chemicals, materials or substances, whether solid, liquid
or gas, defined as or included in the definitions of "hazardous substances,"
"hazardous wastes," "hazardous materials," "extremely hazardous wastes,"
"restricted hazardous wastes," "toxic substances," "toxic pollutants," "solid
waste," or words of similar import in any federal, state or local statute, law,
ordinance or regulation now existing or existing on or after the Effective Date
as the same may be interpreted by government offices and agencies.
"HAZARDOUS MATERIALS LAWS" means any federal, state or local statutes, laws,
ordinances or regulations now existing or existing after the Effective Date that
control, classify, regulate, list or define Hazardous Materials.
"IMPROVEMENT ALLOWANCE" means the amount (per square foot of Rentable Area in
the Premises) specified in the Basic Terms for the cost of designing and
installing Tenant's Improvements.
"IMPROVEMENTS" means, collectively, the Landlord's Improvements and the Tenant's
Improvements.
"INCLUDING" and "INCLUDING" means "including but not limited to."
"LANDLORD" means Opus Union Station, L.L.C., its successors and assigns as the
record holder of fee simple title to the Property at the time in question.
"LANDLORD PARTIES" means Landlord and Property Manager and their respective
officers, directors, partners, shareholders and members.
"LANDLORD'S IMPROVEMENTS" means the base building improvements described on the
attached EXHIBIT F.
"LAWS" means any law, regulation, rule, order, statute or ordinance of any
governmental or private entity in effect on or after the Effective Date and
applicable to the Property or the use or occupancy of the Property, including,
without limitation, Hazardous Materials Laws, Building Rules and Permitted
Encumbrances.
"LEASE" means this Multi-Tenant Office Lease Agreement, as the same may be
amended or modified after the Effective Date.
"LEASE YEAR" means each consecutive 12 month period during the Term, commencing
on the Commencement Date, except that if the Commencement Date is not the first
day of a calendar month, then the first Lease Year is a period beginning on the
Commencement Date and ending on the last day of the calendar month in which the
Commencement Date occurs plus the following 12 consecutive calendar months.
"LINES" means, individually and collectively, communications or computer wires,
cables and related devices and equipment of any nature, wherever located on or
about the Property or Union Station Condominium.
"MARKET RENT" means the annual amount per square foot that a willing tenant
would pay and a willing landlord would accept, in an arms-length lease for
Comparable Space for a comparable period of time, giving consideration to the
financial capability of the tenants, the amount of square feet being leased, the
rent rates per square foot, the standard of measurement by which square footage
is measured, the type and extent of liability under any escalation clauses, the
approximate amount of operating expenses to be paid by the tenant, the amenities
and services provided, any rent concessions and all other applicable conditions
of tenancy.
"MAXIMUM RATE" means interest at a rate equal to the lesser of Prime Rate plus
5% per annum and the maximum interest rate permitted by law.
"MORTGAGE" means any mortgage, deed of trust, master lease of the Building,
"synthetic lease," security interest or other security document of like nature
that at any time may encumber all or any part of the Property and any
A-3.
replacements, renewals, amendments, modifications, extensions or refinancings
thereof, and each advance (including future advances) made under any such
instrument.
"MORTGAGEE" means the beneficial owner of any encumbrance created by a Mortgage.
"NET RENT" means all rental Landlord actually receives from any reletting of all
or any part of the Premises, less any indebtedness from Tenant to Landlord other
than Rent (which indebtedness is paid first to Landlord) and less the Re-entry
Costs (which costs are paid second to Landlord).
"NOTICES" means all notices, demands or requests that may be or are required to
be given, demanded or requested by either party to the other as provided in the
Lease.
"OPERATING EXPENSES" means all expenses Landlord incurs in connection with
maintaining, repairing and operating the Property, as determined by Landlord's
accountant in accordance with generally accepted accounting principles
consistently followed, including, but not limited to, the following: all
Property Taxes; insurance premiums and deductible amounts under any insurance
policy; maintenance and repair costs; steam, electricity, water, sewer, gas and
other utility charges and the costs of providing such utilities; fuel; lighting;
window washing; janitorial services; trash and rubbish removal; property
association fees and dues and all payments under any Permitted Encumbrance
(except Mortgages and liens) affecting the Property; wages payable to persons at
the level of manager and below whose duties are connected with maintaining and
operating the Property (but only for the portion of such persons' time allocable
to the Property), together with all payroll taxes, unemployment insurance,
vacation allowances and disability, pension, hospitalization, retirement and
other so-called "fringe benefits" of a monetary nature paid in connection with
such persons (allocated in a manner consistent with such persons' wages);
amounts paid to contractors or subcontractors for work or services performed in
connection with maintaining and operating the Property; all costs of uniforms,
supplies and materials used in connection with maintaining, repairing and
operating the Property; any wage or monetary fringe benefit related expense
imposed upon Landlord, its contractors or subcontractors pursuant to Laws or
pursuant to any collective bargaining agreement covering such employees; all
services, supplies, repairs, replacements or other expenses for maintaining and
operating the Property; costs of complying with Laws; reasonable management fees
not to exceed then-current market standards and the costs (including rental) of
maintaining a building or management office in the Building occupying not in
excess of 1,520 useable square feet; and such other expenses as may ordinarily
be incurred in connection with maintaining and operating an office complex
similar to the Property. The term "Operating Expenses" also includes expenses
Landlord incurs in connection with public sidewalks adjacent to the Property,
any pedestrian walkway system (either above or below ground) and any other
public facility to which Landlord or the Property is from time to time subject
in connection with operating the Property and all costs incurred by Landlord in
connection with transportation management for the Property including payments to
or for public transit, shuttles, car pooling facilities, a transportation
manager or otherwise as required by Law, except that such costs will be excluded
from Operating Expenses if and to the extent that Tenant's program satisfies the
requirements of Law concerning transportation management. The term "Operating
Expenses" does not include: (a) the cost of repairs, restoration or other work
occasioned by fire, the exercise of eminent domain, or by windstorm or other
insured casualty other than the amount of any deductible under any insurance
policy (regardless whether the deductible is payable by Landlord in connection
with a capital expenditure); (b) expenses Landlord incurs in connection with
leasing or procuring tenants or renovating space for new or existing tenants;
(c) legal expenses incident to Landlord's enforcement of any lease; (d) interest
or principal payments on any Mortgage or other indebtedness of Landlord or
expenses in connection with any financing; (e) an allowance or expense for
depreciation or amortization; (f) any cost or expense to the extent to which
Landlord is paid or reimbursed or is entitled to payment or reimbursement from
any person (other than as a payment for Operating Expenses), including but not
necessarily limited to (1) work or service performed for any tenant (including
Tenant) at such tenant's cost, (2) the cost of any item for which Landlord is
reimbursed by insurance proceeds, warranties, service contracts, condemnation
proceeds or otherwise, (3) increased insurance or taxes assessed specifically to
any tenant of the Building, (4) charges (including applicable taxes for heat,
air conditioning, electricity, water or other utilities for which Landlord is
entitled to direct reimbursement from any tenant, and (5) the cost of items
furnished to a tenant to a materially greater extent or in a materially more
favorable manner than that furnished generally to the tenants and other
occupants of the Building (including Tenant); (g) the cost of installing,
operating and maintaining any special facilities, such as an observatory,
cafeteria, luncheon club, athletic club or other similar facilities; (h) the
cost of correcting defects in the initial design or
A-4.
construction of the Building; (i) any cost or expense which is applicable to or
incurred for maintaining and operating parking in the Parking Garage in the Base
Unit; (j) taxes, Operating Expenses or the cost of any work or services
performed for any facility other than the Building or the portions of the Base
Unit benefiting the Building; (k) any fees, costs, and commissions incurred in
procuring or attempting to procure other tenants including, but not necessarily
limited to brokerage commissions, finders' fees, attorneys' fees and expenses,
expenses of relocating tenants in the Building, entertainment costs, travel
expenses and advertising and production costs; (1) any cost included in
Operating Expenses representing an amount paid to a Person related to Landlord
which is in excess of the amount which would have been paid on an arms length
basis in the absence of such relationship; (m) any costs of painting or
decorating of any interior parts of the Building other than the Building's
Common Area; (n) landlord's general overhead except as it relates specifically
to the actual management of the Building; (o) the cost of the initial
landscaping of the Building; (p) attorney's fees, costs and other expenditures
incurred in connection with leasing of premises in the Building, leasing
disputes with tenants or occupants of the Building and/or claims by such
tenants; (q) the cost of any repairs, alterations, additions, improvements,
changes, replacements or other items which under generally accepted accounting
principles are properly classified as capital expenses, provided that,
notwithstanding the foregoing, Operating Expenses may include: (1) the cost of
capital improvements to the Building expended by Landlord to comply with Laws
and regulations not applicable to the Building at the time relevant permit
applications were deemed complete by City ("Compliance Capital Costs"), the cost
of which will be amortized over the useful life of the improvements in
accordance with generally accepted accounting principles, limited, however, in
any calendar year, to an amount not in excess of 3% of total Operating Expenses
for such calendar year excluding Property Taxes; and (2) to the extent that any
such repairs, alterations, additions, etc. result in a reduction of Operating
Expenses, Landlord may charge annually a pro rata amount of such cost amortized
over the useful life of the item in question based on generally accepted
accounting principles, but in an amount which does not exceed the savings in
operating expenses which has been realized for that year; (r) the cost of the
initial stock of tools and equipment for operation, repair and maintenance of
the Building; (s) the cost of acquiring sculptures, paintings and other objects
of art; (t) the cost of remediating any environmental condition not caused by
Tenant, including the removal of, or other steps taken with respect to, asbestos
located in the Building; (u) any late fees, fines or penalties incurred by
Landlord and cost and expenses incurred in contesting or settling any claimed
violation of Laws; and (v) any insurance deductible in excess of $25,000 (which
amount will be adjusted on the first day of each Lease Year by the change in the
CPl for the calendar month two months before the first day of the Lease Year,
compared to the CPl for the month two months before the first calendar month of
the Term) per loss. Any reference in the foregoing definition of Operating
Expenses to the Property includes improvements in the Base Unit benefiting the
Building such as passenger elevators, freight elevators, loading docks,
stairways and stairwells.
"OTHER AMAZON LEASE" means the multi-tenant office lease concurrently made and
dated herewith relating to the building known as the Opus Center West Building
and located in Xxxx 0 of the Union Station Condominium, as now or hereafter
amended.
"OUT OF POCKET EXPENSES" are Tenant's reasonable expenses actually incurred with
respect to this Lease and the Premises, including space planning and design
fees, storage costs and reasonable attorneys' fees.
"OUTSIDE DELIVERY DATE" means either (a) July 1, 2001 if Landlord receives a
building permit from City for Landlord's Improvements or before December 31,
1999, or (b) if said building permit is received after December 31, 1999, 18
months after the date Landlord receives from City a Building permit for
Landlord's Improvements.
"PARKING ALLOTMENT" means the Parking Allotment specified in the Basic Terms.
"PERMITTED ENCUMBRANCES" means all Mortgages, liens, easements, condominium or
other declarations, including the Condominium Declaration, encumbrances,
covenants, conditions, reservations, restrictions and other matters affecting
title to the Property as of the Effective Date.
"PERMITTED USE" means the use permitted pursuant to Section 4.1.
"PERSON" and "person" means and includes any natural person, corporation, firm,
partnership, limited partnership, limited liability company, limited liability
partnership, trust, estate, unincorporated organization or other legal or
business entity, however designated or constituted.
A-5.
"PREMISES" means that certain space situated in the Building shown and
designated on the Floor Plans and described in the Basic Terms.
"PRIME RATE" means the published "Prime Rate" announced as such by U.S. Bank
National Association, its successors or assigns, including by merger or other
operation of law, but in no event greater than the maximum lawful rate.
"PROPERTY" means, collectively, subject to Section 3.7, the Building and all
other improvements to the Landlord's Unit in which the Building is located.
"PROPERTY MANAGER" means any agent Landlord appoints to manage the Property.
"PROPERTY TAXES" means any general real property tax, improvement tax,
assessment, special assessment, reassessment, commercial rental tax, tax, in
lieu tax, levy, charge, penalty or similar imposition imposed by any authority
having the direct or indirect power to tax, including but not limited to, (a)
any city, county, state or federal entity, (b) any school, agricultural,
lighting, drainage or other improvement or special assessment district, (c) any
governmental agency, or (d) any private entity having the authority to assess
the Property under any of the Permitted Encumbrances. The term "Property Taxes"
includes all charges or burdens of every kind and nature Landlord incurs in
connection with using, occupying, owning, operating, leasing or possessing the
Property, without particularizing by any known name and whether any of the
foregoing are general, special, ordinary, extraordinary, foreseen or unforeseen;
any tax or charge for fire protection, street lighting, streets, sidewalks, road
maintenance, refuse, sewer, water or other services provided to the Property.
The term "Property Taxes" does not include Landlord's state or federal income,
franchise, real estate transfer, estate or inheritance taxes, or any fine,
penalty or cost attributable to delinquent payment thereof. If Landlord is
entitled to pay, any of the above listed assessments or charges in installments
over a period of two or more calendar years, then Landlord will elect to do so
and only such installments of the assessments or charges (including interest
thereon) as are required to be paid in a calendar year will be included within
the term "Property Taxes" for such calendar year.
"PUNCH LIST" means a list of minor items of construction, decoration and/or
adjustment not completed by Landlord in connection with the Tenant's
Improvements which do not interfere in any material respect with Tenant's
occupancy of the Premises or its use thereof for the Permitted Use or Tenant's
Improvements items in need of repair prepared in accordance with Section
17.1.11.
"RE-ENTRY COSTS" means all costs and expenses Landlord incurs re-entering or
reletting all or any part of the Premises, including, without limitation, all
costs and expenses Landlord incurs (a) maintaining or preserving the Premises
after an Event of Default; (b) recovering possession of the Premises, removing
persons and property from the Premises (including, without limitation, court
costs and attorneys' fees) and storing such property; (c) reletting, renovating
or altering the Premises; (d) real estate commissions, advertising expenses and
similar expenses paid or payable in connection with reletting all or any part of
the Premises; and (e) the value of free rent and other concessions Landlord
gives in connection with re-entering or reletting all or any part of the
Premises.
"RELEVANT MARKET" means the area bounded by the Fremont/Wallingford Districts to
the north, South Xxxxx Xxxxxxxx Way to the south, Interstate 5 to the east and
Puget Sound to the west.
"RENT" means, collectively, Basic Rent and Additional Rent.
"RENT COMMENCEMENT DATE" means the earlier of (a) the Commencement Date; or (b)
the date Tenant commences business operations in the Premises.
"RENTABLE AREA" means the rentable area of the Premises, the Building, or any
other area, as applicable, calculated in accordance with the BOMA Standards for
the calculation of "Building Rentable Area" if a tenant occupies an entire
Building and, if a tenant does not occupy an entire Building, "Floor Rentable
Area," as set forth in BOMA Standards. Unheated storage space will not be
included in Rentable Area.
A-6.
"STANDARD IMPROVEMENT PACKAGE" means Building standard finishes, components and
interior materials and improvements established by Landlord. Such materials may
be subject to change based upon availability or fluctuations in the cost of
labor or materials.
"STATE" means the State of Washington.
"STRUCTURAL ALTERATIONS" means any Alterations involving the structural,
mechanical, electrical, plumbing, fire/life safety or heating, ventilating and
air conditioning systems of the Building
"SUBSTANTIAL COMPLETION" means (a) provided the Tenant's Improvements have been
constructed in accordance with the Final Plans subject only to Punch List items,
the date that the City or other appropriate authority issues a conditional or
unconditional Certificate of Occupancy or similar document for the Premises or
(b) if the City or other appropriate authority does not require that a
Certificate of Occupancy or other similar document be issued for Tenant's
occupancy of the Premises, and provided the Tenant's Improvements have been
constructed in accordance with the Final Plans subject only to Punch List items,
the date that Tenant is reasonably able to occupy and use the Premises for its
intended purposes.
"TAKING" means the exercise by a Condemning Authority of its power of eminent
domain on all or any part of the Property, either by accepting a deed in lieu of
condemnation or by any other manner.
"TENANT" means the tenant identified in the Lease and such Tenant's permitted
successors and assigns. In any provision relating to the conduct, acts or
omissions of "Tenant," the term "Tenant" includes the tenant identified in the
Lease and such Tenant's agents, employees and contractors.
"TENANT DELAYS" means any delays caused or contributed to by Tenant as described
in Section 17.1.10.
"TENANT'S IMPROVEMENTS" means all initial improvements to the Premises (other
than Landlord's Improvements).
"TENANT'S SHARE OF OPERATING EXPENSES" means the product obtained by multiplying
the amount of Operating Expenses for the period in question by the Tenant's
Share of Operating Expenses Percentage.
"TENANT'S SHARE OF OPERATING EXPENSES PERCENTAGE" means the percentage specified
in the Basic Terms, as such percentage may be adjusted in accordance with the
terms and conditions of this Lease.
"TERM" means the Initial Term of this Lease specified in the Basic Terms and, if
applicable, any Renewal Term then in effect.
"TRANSFER" means an assignment, mortgage, pledge, transfer, sublease, or other
encumbrance or conveyance (voluntarily, by operation of law or otherwise) of
this Lease or all or any portion of the Premises or any interest in this Lease
or all or any portion of the Premises. If the stock of Tenant is not publicly
traded over the counter or on a national securities exchange, the term
"Transfer" also includes any assignment, mortgage, pledge, transfer or other
encumbering or disposal (voluntarily, by operation of law or otherwise) of any
ownership interest in Tenant or any Guarantor that results or could result in a
change of Control of Tenant or any Guarantor.
"TRANSFEREE" means the Person to whom Tenant makes a Transfer.
"UNION STATION CONDOMINIUM" means Union Station, a condominium, recorded in
Volume 15 of Condominiums, pages 37-45, according to the amended and restated
declaration thereof recorded under King County Recording No. 9811171094 and any
amendments thereto, including and together with those certain easements for
support, utilities, equipment and improvements, elevators, access and
telecommunications links as set forth therein; situated in the City of Seattle,
County of King, State of Washington.
"UNIT" means Xxxx 0 xx Xxxxx Xxxxxxx Xxxxxxxxxxx.
X-0.
"WARRANTY TERMS" means, collectively, the Punch List and construction warranty
provisions of Section 17.1 of the Lease.
A-8.
EXHIBIT B
[SITE PLAN]
This exhibit diagrammatic only and is intended to show only the general location
of the Units, the Property, the Buildings and the common walkways and other
improvements on or about the ground level of Union Station Condominium. This
exhibit is not a warranty that the improvement shown hereon will be as depicted
either at the commencement of or during the Term.
B-1.
EXHIBIT C
FLOOR PLAN
[FLOOR PLAN]
[FLOOR PLAN]
[FLOOR PLAN]
[FLOOR PLAN]
[FLOOR PLAN]
[FLOOR PLAN]
[FLOOR PLAN]
[FLOOR PLAN]
[FLOOR PLAN]
[FLOOR PLAN]
[FLOOR PLAN]
EXHIBIT D
COMMENCEMENT DATE MEMORANDUM
THIS MEMORANDUM is made and entered into as of [___________, ____] by
and between [_______________] ("Landlord") and [______________] ("Tenant").
RECITALS:
1. Landlord and Tenant are party to a certain Multitenant Office
Lease Agreement dated as of [___________, ____] ("Lease"), relating to certain
premises ("Premises") located in the building commonly known as
["_______________,"] located at [_______________] ("Building").
2. Landlord and Tenant desire to confirm the Commencement Date
and Rent Commencement Date (as such terms are defined in the Lease) and the date
the [initial] Term of the Lease expires [and the notice date(s) and expiration
date(s) of any renewal Term(s) provided to Tenant under the Lease].
ACKNOWLEDGMENTS:
Pursuant to Section 1.2.3 of the Lease and in consideration of the
facts set forth in the Recitals, Landlord and Tenant acknowledge and agree as
follows:
1. All capitalized terms not otherwise defined in this Memorandum
have the meanings ascribed to them in the Lease.
2. The Commencement Date under the Lease is [_______________].
3. The Rent Commencement Date under the Lease is [_____________].
4. The Initial Term of the Lease expires on [_______________],
unless the Lease is sooner terminated in accordance with the
terms and conditions of the Lease.
5. Tenant must exercise its right to the first renewal Term, if
at all, by notifying Landlord no later than ______________,
subject to the conditions and limitations set forth in the
Lease.
6. The first renewal Term expires on _______________.
7. Tenant must exercise its right to the second renewal Term, if
at all, by notifying Landlord no later than _______________,
subject to the conditions and limitations set forth in the
Lease.
8. The second renewal Term expires on _______________.
12. Tenant must exercise its special termination option set forth
in Section 17.2, if at all, by notifying Landlord no later
than _______________, subject to the conditions and
limitations set forth in the Lease.
D-1.
Landlord and Tenant each caused this Memorandum to be executed by its
duly authorized representative as of the day and date written above. This
Memorandum may be executed in counterparts, each of which is an original and all
of which constitute one instrument.
LANDLORD:
[____________________________________]
By:__________________________________________
Name:________________________________________
Its:_________________________________________
TENANT:
[______________________________________]
By:__________________________________________
Name:________________________________________
Its:_________________________________________
D-2.
EXHIBIT E
BUILDING RULES
RULES AND REGULATIONS
1. The sidewalks, entrances, passages, courts, elevators,
vestibules, stairways, corridors and halls will not be obstructed or used for
any purpose other than ingress and egress. The halls, passages, entrances,
elevators, stair-ways, balconies and roof are not for the use of the general
public, and the Landlord will in all cases retain the right to control and
prevent access thereto of all persons whose presence, in the judgment of the
Landlord, will be prejudicial to the safety, character, reputation and interests
of the Building and its tenants, provided that nothing herein contained will be
construed to prevent such access to persons with whom the Tenant normally deals
only for the purpose of conducting its business on the Premises (such as
clients, customers, office suppliers and equipment vendors, and the like) unless
such persons are engaged in illegal activities. Except as permitted pursuant to
Section 17.17 of the Lease, neither Tenant nor its employees, agents or
contractors will go upon the roof of the Building without the written consent of
the Landlord.
2. No awnings or other projections will be attached to the
outside walls of the Building. No curtains, blinds, shades or screens will be
attached to or hung in, or used in connection with, any window or door of the
Premises other than Landlord standard window covering. All electric ceiling
fixtures hung in offices or spacers along the perimeter of the Building must be
fluorescent, of a quality, type, design and bulb color approved by Landlord.
Neither the interior nor the exterior of any windows will be coated or otherwise
sunscreened without written consent of Landlord.
3. No sign, advertisement, notice or handbill will be exhibited,
distributed, painted or affixed by any Tenant on, about or from any part of the
Premises or the Building without the prior written consent of the Landlord. If
the Landlord will have given such consent at the time, whether before or after
the execution of this Lease, such consent will in no way operate as a waiver or
release of any of the provisions hereof or of this Lease, and will be deemed to
relate only to the particular sign, advertisement or notice so consented to by
the Landlord. In the event of the violation of the foregoing by any Tenant,
Landlord may remove or stop same without any liability, and may charge the
expense incurred in such removal or stopping to the Tenant. The directory tablet
will be provided exclusively for the display of the name and location of the
Tenants only and Landlord reserves the right to exclude any other names
therefrom. Nothing may be placed on the exterior of corridor walls or corridor
doors other than Landlord's standard signage.
4. Tenant will exercise reasonable care and caution that all
water faucets or water apparatus are entirely shut off before Tenant or Tenant's
employees leave the Building, so as to prevent waste or damage. Tenant will
cooperate with Landlord in obtaining maximum effectiveness of the cooling system
by closing blinds when the sun's rays fall directly on the windows of the
Premises. Tenant will not tamper with or change the sweating of any thermostats
or temperature control valves.
5. The toilet rooms, water and wash closets and other plumbing
fixtures will not be used for any purpose other than those for which they were
constructed, no sweepings, rubbish, rags, or other substances will be thrown
therein. All damages resulting from any misuse of the fixtures by Tenant, its
subtenants, assignees or any of their servants, employees, agents, visitors or
licensees will be borne by Tenant.
6. No Tenant will xxxx, paint, drill into, or in any way deface
any part of the Premises or the Building. No boring, cutting or stringing of
wires or laying of linoleum or other similar floor coverings will be permitted,
except with the prior written consent of the Landlord (which Landlord will not
unreasonably withhold) and as the Landlord may direct.
7. No bicycles, vehicles, birds or animals of any kind (except
for seeing eye dogs for the blind) will be brought into or kept in or about the
Premises, and no cooking will be done or permitted by any Tenant on the
Premises, except that microwave oven, snack and coke type vending machines and
the preparation of coffee, tea, hot chocolate and similar items for Tenants and
their employees will be permitted provided power will not exceed that
E-1.
amount which can be provided by a 30 amp circuit. No Tenant will cause or permit
any unusual or objectionable odors to be produced or permeate the Premises.
Smoking or carrying lighted cigars, cigarettes or pipes in the Building is
prohibited.
8. The Premises will not be used for manufacturing or for the
storage of merchandise except as such storage may be incidental to the permitted
use of the Premises. No Tenant will occupy or permit any portion of the Premises
to be occupied as an office for a public stenographer or typist, or for the
manufacture or sale of liquor, narcotics, or tobacco in any form or as a medical
office, or as a xxxxxx or manicure shop, or as an employment bureau, without the
express written consent of Landlord. No Tenant will engage or pay any employees
on the Premises except those actually working for such Tenant on the Premises,
nor advertise for laborers giving an address at the Premises. The Premises will
not be used for lodging or sleeping or for any immoral or illegal purpose.
9. No Tenant, subtenant or assignee nor any of their servants,
employees, agents, visitors or licensees, will at any time bring or keep upon
the Premises any inflammable, combustible or explosive fluid, chemical or
substance
10. No additional locks or bolts of any kind will be placed upon
any of the doors or windows by any Tenant, nor will any changes be made in
existing locks or the mechanisms thereof. Each Tenant must upon the termination
of his tenancy, restore to the Landlord all keys of stores, offices, and toilet
rooms, either furnished to, or otherwise procured by, such Tenant and in the
event of the loss of keys so furnished, such Tenant will pay to the Landlord the
cost of replacing the same or of changing the lock or locks opened by such lost
key if Landlord will deem it necessary to make such changes.
11. The removal or the carrying in or out of any safes, freight,
furniture, or bulky matter of any description must take place during the hours,
which Landlord will determine from time to time. The moving of safes or other
fixtures or bulky matter of any kind must be done upon previous notice to the
Building Manager of the Building and under his supervision, and the persons
employed by any Tenant for such work must be acceptable to Landlord. The
Landlord reserves the right to inspect all safes, freight or other bulky
articles to be brought into the Building and to exclude from the Building all
safes, freight or other bulky articles which violate any of these Rules and
Regulations or the Lease. The Landlord reserves the right to prescribe the
weight and position of all safes, which must be placed upon supports, approved
by Landlord to distribute the weight. No furniture or bulky packages will be
received in the Building or carried up or down in the elevator except on freight
elevators and during such hours as will be designated by the Landlord. In no
event will Tenant be charged a freight elevator usage fee.
12. No Tenant will purchase ice, towels, janitorial or maintenance
or other like services, from any person or persons not approved by the Landlord,
which approval will not be unreasonably withheld.
13. Landlord will have the right to prohibit any advertising by
any Tenant which impugns the reputation of the Building or its desirability as
an office location and upon written notice from Landlord any Tenant will refrain
from or discontinue such advertising.
14. Landlord reserves the right to exclude from the Building
between the hours of 6:00 p.m. and 7:00 a.m., Monday through Friday and at all
hours on Saturday and Sunday and legal holidays, all persons who do not present
a current security card to the Building. The Landlord will furnish security
cards to persons for whom any Tenant requests the same in writing. Each Tenant
will be responsible for all persons for whom he requests passes and will be
liable to the Landlord for all acts of such persons. Landlord will in no case be
liable for damages for any error with regard to the admission to or exclusion
from the Building of any person. In case of an invasion, mob riot, public
excitement or other circumstances rendering such action advisable in Landlord's
opinion, Landlord reserves the right without any abatement of rent to require
all persons to vacate the Building and to prevent access to the Building during
the continuance of the same for the safety of the Tenants and the protection of
the Building and the property in the Building.
15. Any persons employed by any Tenant to do janitorial work will,
while in the Building and outside of the Premises, be subject to and under the
control and direction of the superintendent of the Building (but not as an agent
or servant of said superintendent or of the Landlord), and Tenant will be
responsible for all acts of such persons on or about the Property.
E-2.
16. All doors opening onto public corridors will be kept closed,
except when in use for ingress and egress.
17. Canvassing, soliciting and peddling in the Building are
prohibited and each Tenant will report and otherwise cooperate to prevent the
same.
18. All office equipment of any electrical or mechanical nature
will be placed by Tenant in the Premises in settings approved by Landlord, to
absorb or prevent any vibration, noise and annoyance.
19. There will not be used in any space or in the public halls of
the Building, either by any tenant or others, any hand trucks except those
equipped with rubber tires and rubber side guards.
20. The scheduling of Tenant move-ins and move-outs will be
subject to the reasonable discretion of Landlord.
21. The term "personal goods or services vendors" as used herein
means persons who periodically enter the Building of which the Premises are a
part for the purpose of selling goods or services to a Tenant, other than goods
or services which are used by the Tenant only for the purpose of conducting its
business on the Premises. "Personal goods or services" include, but are not
limited to, drinking water and other beverages, food, barbering services, and
shoe shining services. Landlord reserves the right to prohibit personal goods
and services vendors from access to the Building except upon such reasonable
terms and conditions, including but not limited to, the payment of a reasonable
fee and provision for insurance coverage, as are related to the safety, care and
cleanliness of the Building, the preservation of good order thereon, and the
relief of any financial or other burden on the Landlord occasioned by the
presence of such vendors or the sale by them of personal goods or services to
the Tenant or its employees. If necessary for the accomplishment of these
purposes, Landlord may exclude a particular vendor entirely or limit the number
of vendors who may be present at any one time in the Building.
22. Landlord will not be responsible for lost or stolen property,
equipment, money or jewelry from Tenant's area or public rooms regardless of
whether such loss occurs when such area or public rooms are locked against
entry, unless due to the gross negligence or willful acts or omissions of
Landlord.
E-3.
EXHIBIT F
LANDLORD'S IMPROVEMENTS
I. BASE BUILDING SPECIFICATIONS
A. SERVICE CORE
1. All building common areas completed which will include
elevator lobbies, rest rooms installed and "finished out" per
building standards on each floor, telephone room, mechanical
room and janitors closet.
2. Main elevator lobby installed and complete.
3. Exit Stairways as required by code, in acceptable condition to
serve as a connecting stairway.
4. Common Area electrical, telephone, janitor, mechanical rooms
on each floor (for Tenant's use on full floors). Include
maintenance sink in janitor's closet.
5. Common Area Electrical closets complete with service
distribution panel boards and transformers as specified by
Landlord as Building Standard.
6. Core walls and columns within service core on partial, full
and main floor complete with drywall, taped, sanded and ready
for paint. Common Areas finished.
7. Men's and women's washrooms on each floor finished with:
a. Ceramic tile or better on floors and wet walls.
b. Other walls and ceilings finished.
c. Vanities, cubicles, accessories, fixtures, trim
lighting and all mechanical and plumbing services
complete.
d. Complied with all applicable laws and codes.
8. All hardware is, including locking devices and closures for
restrooms, closets, stairwells and other Common Areas.
9. Water and drainage on each floor.
a. Access at the core to domestic water, drainage and
vent systems.
b. Three wet columns per floor except at 1st floor. One
wet column at 1st floor.
c. Drinking fountains per floor, with chilled water
installed, as per applicable code. Note quantity (2
each floor).
d. Water heating system for hot water installed for rest
rooms and janitors closet.
10. Communication risers providing:
a. Telephone and data communication cables to each
floor.
F-1.
b. Conduit from the roof to each floor for antenna and
data transmission cable to be installed by Tenant.
11. Access to main telephone service on the first floor or lower
level of the Building as required and set forth in the Lease
agreement.
X. XXXXX
1. All interior drywall for the building shell to be furred,
taped and ready for painting.
2. Panelized brick and/or pre-cast concrete exterior wall
treatment installed and sealed.
3. Exterior windows installed and sealed. Glass shall have a
shading [missing text] of 0.45.
4. Building standard window coverings for all areas of exterior
or [missing text] wall glazing. Window covering: Xxxxxx
Xxxxxxx Aluminum Blinds #171 Umber Perforated 1" mini.
5. Exterior walls will be insulated only (from slab-to-slab).
C. FLOORS
1. Design to support a minimum live load of 80 lbs per square
foot at the building core and 50 lbs. at the perimeter with a
partition load of 20 lbs. per square foot. See the structural
drawing as to the floor loading distribution.
2. Concrete floors with trowel finish leveled to tolerance of 1/2
inch of a 10 radius (non-cumulative). Maximum deviation not to
exceed 2.5 inches between any two points on the floor.
3. Smooth and ready to receive the floor covering per carpet
industry standards.
D. MECHANICAL
HVAC system and design criteria shall comply with ASHRAE and other
pertinent codes. In no event shall compliance with ASHRAE and other codes reduce
the HVAC requirements as outlined in this section.
1. Air Conditioning shall be sized at a minimum of 000 xxxxxx
xxxx xx xxxxx xxxx per ton.
2. HVAC shall be a system designed for construction to provide
zones, each of 1200 usable square feet maximum, except where
standard design criteria suggest larger interior zones.
3. Condenser water loop includes the ability to extend the loop
at each floor via valved fitting. Average floor can support an
additional (6 tons) 19 gallons per minute of condenser water
flow.
4. HVAC systems to service cores on all floors.
5. Primary HVAC service installed and ready for distribution,
including only VAV boxes required for freeze protection as
indicated on shell mechanical drawings.
6. Heating energy sources shall be electric.
7. Exhaust systems for toilet rooms and janitor closets designed
to accommodate a minimum of 2 CFM per sq. ft.
F-2.
8. Fresh air ventilation shall be provided to satisfy local
energy codes for office buildings or appropriate ASHRAE
standards, whichever is more stringent. (As mutually agreed
upon based upon final Tenant design.)
9. HVAC systems operational a minimum of 30 days prior to
occupancy.
10. Elevator lobby diffusers installed.
11. Exhaust system has future tenant tap at 1,000 CFM per floor.
E. CEILINGS
1. Installed in main lobby, elevator, partially occupied floor
lobbies, toilet rooms, and freight vestibules.
2. Suspended 4' by 4' ceiling grid system throughout.
3. Building standard ceiling tile purchased and stacked on floor.
4. Easy access to overhead mechanical, electrical and lighting
systems without damage to ceiling components.
5. Predominant minimum finished ceiling height is 9'0" on floors
2-11. Predominant finished ceiling height is 12'0" on 1st
floor.
F. ELECTRICAL/POWER
Landlord shall provide in the Base Building a minimum three (3) xxxxx
per usable square foot for Tenant convenience power, including transformers and
panels for electrical power per the Base Building electrical specifications.
Total service shall provide between 22 and 25 xxxxx per square foot for all
building systems including HVAC and lighting requirements.
NOTE: These are Tenant demand loads and do not include base building
equipment power requirements.
1. Step-down Transformers located on each floor per the Base
Building electrical specification.
2. Primary electrical service includes two (2) K rated
transformers per floor. Panels will be installed in accordance
with the drawings listed below.
3. System provides code maximum of 2.0 xxxxx per square foot for
lighting (Base Building Design standard is 1.2 xxxxx per
square foot). Electrical design will support 5.0 xxxxx per
square foot (connected load) for an average of 3.5 xxxxx per
square foot (demand load).
4. 900 kva emergency generator and circuit to at least one
elevator, life-safety systems, and all emergency lighting.
Landlord expects to use approximately 40% of the generator's
capacity for such purposes. The remaining emergency generator
capacity will be available to Tenant for dedicated Tenant
loads.
5. Emergency lighting and power home run grids installed.
6. Utility costs during tenant build-out.
7. Provisions for both general and clean (dedicated) power
circuits.
F-3.
8. The Building must have the capability of installing local
emergency generators for tenant use only, in a mutually agreed
upon location in accordance with all applicable building
codes, at any point during the lease term.
9. The capability for separate metering or monitoring.
10. Facility will have lighting system designed with UL Master
Label. System will be fully grounded.
11. Dedicated tenant electrical panels and transformers shall be
installed within Tenant's Premises.
G. LIGHTING
1. Building standard light fixtures installed and operating in
main lobby, stairwells, elevators, multitenant floor lobbies,
mechanical room, utility rooms and other lighting as required
by code.
H. DOORS
1. Doors for stairwells, electrical rooms, mechanical, janitor,
telephone closet, toilet room installed.
2. Common doors finished and complete with frame, trim, hardware,
locking devices and closers.
I. LIFE SAFETY
1. Sprinkler System
a. Fire sprinkler system, including sprinkler risers,
main loop, and sprinkler heads installed in the
Premises as required by code for the shell.
b. Primary loop with branch distribution with heads
turned up.
c. Sprinkler heads installed and operational in the
core.
2. Fire hose and extinguisher cabinets with extinguishers and/or
hoses finished and installed as required by code for building
shell.
3. Pressurized exit stairwells and elevator shafts for smoke
protection with standard shoot out panels for building smoke
exhaust evacuation.
4. Smoke detectors in all elevator lobbies.
5. Exit signs illuminated with power shall be backed up by an
emergency source or self-illuminating exit signs, or as
required by code for building shell.
6. Fire horns and exit signs as required by code for building
shell.
7. Fire alarm system installed as required for Common Areas.
8. Infrastructure for the installation of fire horns and strobes
required for the tenant improvement build-out is provided in
building shell.
J. ELEVATORS AND FREIGHT FACILITIES
1. All passenger elevators installed and operational as designed
(5 - 3,500 lb, 400 ft per minute passenger with 1 - 4,500 lb,
350 ft per minute service elevator).
F-4.
2. Service elevator installed and operational as designed.
3. Freight vestibules installed as designed.
4. Truck height loading dock facilities installed in parking
garage as designed for the space available.
5. Service elevator to accommodate a twelve (12) foot roll of
carpet material in its entirety when ceiling is removed or
opened up.
Landlord shall provide in the Base Building 24-hour freight elevator
capabilities via use of public elevators. Said elevators shall be
located in the near proximity of the loading area.
K. PARKING - BY OTHERS
1. Garage and loading dock construction complete with all
equipment operational and spaces lined.
2. Parking lot paved, lined, and reserved spaces in a specific
area of the garage. See plans for details.
L. SECURITY
1. Guard station/reception desk installed and operational with
roving guard for the site and Buildings as part of the Union
Station project.
2. Electronic surveillance installed and operational per Landlord
design (specify type in notes).
a. Entrances TBD
b. Elevators TBD
c. Stairwells TBD
d. Garage Entrances (By Others)
3. Electronic pass systems installed and operational for building
perimeter and elevators per design. Schlage or equivalent.
II. BID DOCUMENT DRAWING
Landlord and Tenant will amend the Lease to insert the final bid
document drawings promptly upon request of Landlord.
III. SPECIAL NOTE
The foregoing specifications and drawings substantially reflect the
Landlord's Improvements anticipated to be provided as the Building shell and
core. Tenant and Tenant's architect, however, will be responsible to field
verify final conditions so as to identify and allow for reasonable adjustments
and revisions made during the course of construction of the Building.
F-5.
EXHIBIT G
TENANT'S IMPROVEMENTS OUTLINE SPECIFICATIONS
A. INTERIOR WALLS
1. Tenant corridors on floors fully occupied by Tenant.
B. FLOORS
1. Standard Carpet:Mohawk - Rio 30 oz. cut pile over 3/8 inch
felt pad.
2. Upgrade Carpet: Bently - New Xxxxxxxxx over Interloc I Pad.
3. Vinyl Composition Tile: Mannington Essentials
4. Sheet Vinyl: Mannington - Fine Fields Color @ hard surfaces.
5. Rubber Base: Xxxxx 4" Cove.
C. MECHANICAL
1. Supplemental cooling system includes the ability to extend the
condenser water loop via valved fittings provided at each
floor to provide approximately 6 tons of cooling per floor.
Average floor can support 19 gallons per minute of condenser
water flow.
4. All ceiling units, dampers, etc., shall be isolated from the
Building and Premises via vibration isolation devices.
5. Auxiliary exhaust fans for kitchen, conference rooms, etc.
6. Heating and air-cooling equipment with necessary controls
including complete perimeter heating system, main fan system
installed and operational
8. Mechanical systems designed with appropriate isolation and
control valving or mechanisms; nominally at each branch line,
each riser and each fan unit, to minimize disruption to system
operation during maintenance and emergencies.
D. ACOUSTICS
1. AI of .05 or less in all floor-to-ceiling offices and
conference rooms.
2. AI of .20 or less between workstations and within paneled
offices.
E. CEILINGS
1. Ceiling Tile: Xxxxxxxxx - Second Look.
2. Ceiling tiles to comply with Federal Specifications SS-S-118B,
Class A (sound controlling/acoustical tiles and panels), and
surface burning characteristics:
a. flame spread - 25 or less.,
b. smoke developed - 50 or less,
G-1.
c. color ranges - light neutrals,
d. light reflectance - 1,
e. NRC range - .65-.75 Mineral Fiber (NOTE: In high
ceiling areas use Glass Fiber) (Note: .55 - .65 is
typical office building standard.)
f. STC range - 35-39 (in enclosed offices),
g. style - heavy tex
3. Installation of spacer bars and tile.
F. ELECTRICAL/POWER
1. Dedicated tenant electrical panels and transformers installed
within the Premises, except those shown on the shell drawings
listed in Exhibit F.
2. Dedicated circuits for PC outlet use. Five PCs per circuit
maximum.
3. The purchase and installation of VAV boxes, except those shown
on the shell drawings listed in Exhibit F, and all
distribution.
4. All electrical service upgrades to building standard
specifications required by Tenant,
5. Emergency power distribution including automatic transfer
switches, conduits, conductors, transformers and panels.
G. LIGHTING
1. Light Fixtures: 2'x4', 3 lamp fluorescent parabolic troffer
Luminaire equal to or better than Lithonia "Optimax" System
with rapid start electronic low harmonic ballast.
2. Downlights: 1 lamp, 26-watt compact fluorescent recessed
downlight, 6" diameter aperture. 1 HPF electronic ballast.
Lithonia AFV 32 TRT-6 AR2776EB10, Halo, Lightolier,
Prescolite, Xxxx Xxxxxx.
3. Light fixtures to be parabolic fixtures with min. 3" deep
cell. Lamps are to be of the "warm white", energy saving type.
Ballasts shall also be electronic energy efficient, high power
factor U.L. listed, class P, and have a sound rating of "A".
4. Purchase and installation of all light fixtures.
H. LIFE SAFETY
1. Trimming of all sprinkler drops and installation of all
sprinkler heads.
I. ELEVATORS AND FREIGHT FACILITIES
1. Hoist operator provided (if applicable).
G-2.
SPECIAL NOTE
The foregoing specifications are not exhaustive. They are only intended
either (a) to establish minimum quality standards for Tenant's Improvements or
(b) to clarify miscellaneous items not being installed by Landlord as part of
Landlord's Improvements.
G-3.
EXHIBIT H
[RESERVED]
H-1.
EXHIBIT I
JANITORIAL SPECIFICATIONS
CLEANING SERVICES
1. General Cleaning
Nightly
a. Empty and clean all waste receptacles, removing waste
to a designated central location for disposal.
Landlord is to provide for disposal of waste.
b. Empty and clean all ash trays and receptacles.
Weekly
c. Hand dust and clean all office furniture that has
been cleared of papers, boxes, and/or personal items,
ledges, chair rails, baseboards, and window xxxxx.
d. Remove all fingerprints, smudges, and other marks
from metal partitions, doors, and other surfaces
2. Flooring
Group A-Granite, ceramic tile, marble, terrazzo
Group B-Linotile, asphalt, koroseal, plastic vinyl, wood,
rubber, or other composition floors and base.
Nightly
a. All floors in Group A to be swept, wet mopped and
rinsed.
b. All floors in Group B to be dry mopped.
Weekly
c. All floors in Group B to be damp mopped.
Every six (6) months
d. All floors to be scrubbed and buffed.
At Additional cost
e. Stripping and waxing at a direct, additional cost to
Tenant.
3. Vacuuming
Nightly
a. Vacuum or Carpet sweep all high traffic areas of rugs
and carpeted areas.
Weekly
I-1.
b. Vacuum or carpet sweep all rugs and carpeted areas.
Monthly
b. Brush or dust by hand carpet edges inaccessible to
high pressure vacuum attachments.
4. High Dusting
Every six (6) months
a. Dust all clothes closet shelving, pictures, charts,
graphs, etc.
b. Dust clean all vertical surfaces such as walls,
partitions, door bucks, and other surfaces.
c. Dust all venetian blinds.
Special service
Records and General Storage Space
Floors are to be broom cleaned weekly. Files and
exposed open shelves dusted once every three (3)
months.
5. Other Services
a. Landlord will supply all soap, towels, and toilet
tissue in both men's and women's rooms and sanitary
napkins in coin dispensers in the women's rooms.
b. Landlord will supply all coin operated dispensers and
will be responsible for the servicing of same and for
the collection of money from the machine.
c. During the Term of this Lease the dispenser price for
sanitary napkins will not exceed a price equal to
1501; of the wholesale price paid by Landlord.
6. Carpeting
At Additional Cost
a. General carpet shampooing at a direct, additional
cost to Tenant.
7. Glass
Monthly
a. Clean all partitions and furniture glass.
Annually
b. Clean all perimeter windows, both inside and out.
8. Kitchen Areas
Nightly
a. Clean all tables, chairs, counters, and sinks.
I-2.
b. Spot cleaning of walls.
9. General
a. All lights are to be extinguished and the doors as
specified by Tenant are to be locked after cleaning
is completed.
b. All personnel are to be uniformed and clean in
appearance during business hours.
c. Cleaning of all private bathrooms will be subject to
additional charges will be determined on a
case-by-case basis.
d. Recycling will be encouraged as long as it is
economically cost effective. During any period in
which recycling is, in Landlord's reasonable opinion,
not economically cost effective, Landlord will
arrange for recycling for the Premises at Tenant's
request and at Tenant's sole cost and expense;
provided that if Tenant desires to continue recycling
service and if Landlord can arrange, to its
reasonable satisfaction, for non-cost-effective
recycling to be done for the entire Building, the
cost thereof will be an Operating Expense.
I-3.
EXHIBIT J
HVAC SPECIFICATIONS
HVAC SYSTEM BASED ON FOLLOWING CRITERIA:
Roof "U" Value (BTUH/S.F. F) = .05
Wall "U" Value (BTUH/S.F. F) = .14
Floor "U" Value (BTUH/S.F. F) = .056
Glass "U" Value (BTUH/S.F. F) = .50
Glass Shade Coeff = .45
Lighting (Xxxxx/S.F.) = 1.2 (Energy Code)
Misc. Equipment (Xxxxx/S.F.) = 3.0
People Density (People/S.F.) = 143
Cooling Indoor Design Temp (F) = 74
Cooling Outdoor Design Temp (F) = 83
Heating Indoor Design Temp (F) = 70
Heating Outdoor Design Temp (F) = 23
HVAC SYSTEM:
Shell and core ductwork is sized to accommodate an average zone size of 1,000
S.F./zone.
A/C units are vertical self-contained (VSC) floor-by-floor water-cooled with
100% economizer.
Central cooling tower providing condenser water-cooling to each floor-by-floor
unit.
Auxiliary condenser water loop expandable to accommodate Tenant supplemental
systems (TI).
Shell and core work per EXHIBIT F, VAV boxes, down stream ductwork and
diffusers, and the balance of the temperature control system, are tenant
improvements (T.I.).
DDC electronic temperature control system to coordinate the operation of the
HVAC equipment.
Telephone equipment rooms will be fitted with thermostatically controlled
exhaust fans.
J-1.
EXHIBIT K.
[RESERVED]
K-1.
EXHIBIT L
FORM OF LETTER OF CREDIT
[BANK LETTERHEAD]
IRREVOCABLE STANDBY LETTER OF CREDIT
DATE OF ISSUE: CREDIT NUMBER:
[Month, Day, Year] DATE OF EXPIRY: [Month, Day, Year]
BENEFICIARY: APPLICANT:
Opus Union Station, L.L.C. Xxxxxx.xxx, Inc.
Attn: Xxxxxx X. Xxxxxxx, Vice President Attn: Director, Global Real Estate
000 - 000xx Xxxxxx XX, Xxxxx 000 0000 00xx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxxx, XX 00000 Xxxxxxx, XX 00000
And
Xxxxxx.xxx, Inc.
Attn: General Counsel
0000 00xx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
We hereby issue in your favor this Standby Letter of Credit which is
available by your drafts at sight drawn on [Name of Bank], [City], [State] and
accompanied by any of the following documents:
1. Your written certification, notarized, reading as follows (all
blank spaces will be completed by Beneficiary):
In reference to [Name of Bank] Letter of Credit
No._____________________ , we hereby certify and affirm that an Event
of Default has occurred after the expiration of any applicable cure
period under that certain Multi- Tenant Office Lease Agreement
dated_______________________________ , between Opus Union Station,
L.L.C. ("Landlord") and_________________________________ ("Tenant").
The delinquent amount, as defined in said Lease, owed by Tenant to
Landlord as a result of such Event of Default is
USD$___________________________ ."
We hereby irrevocably instruct [Name of Bank] to pay the sum specified
above as follows: Such sum will be paid directly to Opus Union Station,
L.L.C., at___________________________________.
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Certificate as of the________________________day of________________, _________.
Opus Union Station, L.L.C.
By:______________________________________
Name:____________________________________
Title:___________________________________
L-1.
2. Your written Certification, notarized, reading as follows (all
blank spaces will be completed by Beneficiary):
In reference to [Name of Bank] Letter of Credit No.______________ we
hereby certify that this Letter of Credit is within thirty (30) days
prior to its expiration date and has not been extended or replaced
pursuant to that certain Multi-Tenant Office Lease Agreement
dated_______________________ , between Opus Union Station, L.L.C.
("Landlord"), and____________________________ ("Tenant").
We hereby irrevocably instruct [Name of Bank] to pay the sum of USD$
______________ directly to Opus Union Station, L.L.C., at
______________________________.
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Certificate as of the ______________ day of ____________________, __________
Opus Union Station, L.L.C.
By:______________________________________
Name:____________________________________
Title:___________________________________
SPECIAL CONDITIONS:
- All drafts must be marked "drawn under [Name of Bank] Letter of Credit
No.__________________ dated ____________________ ."
- Notwithstanding any reference in this Letter of Credit to other
documents, instruments, or agreements or references in such other
documents, instruments, or agreements to this Letter of Credit, this
Letter of Credit contains the entire agreement among the Applicant,
Beneficiary, and the issuer relating to the obligations of the issuer
hereunder.
- If this Letter of Credit is not extended or replaced pursuant to the
Lease, the Beneficiary may draw under number 2 above hereunder on or
prior to the then relevant expiration date, in the full amount of this
Letter of Credit. Notice of extension will be given to Beneficiary at
the address set forth herein, or, if we have received an executed
notice of transfer as provided herein, at the address as the
Beneficiary may designate to us in writing at our address set forth
herein. We agree that we will, upon written request, confirm in
writing any transferee or prospective transferee of this Letter of
Credit, the then outstanding amount of this Letter of Credit.
Beneficiary will be permitted to make one or more partial draws on
this Letter of Credit.
- This Letter of Credit is transferable in its entirety (but not in
part), on one or more occasions. We will not recognize any transfer of
this Letter of Credit until an executed transfer in the form of Annex
1 is filed with us and our customary charges (not in excess of
USD$500) are paid (Form for Filing Transfer Instructions with us is
attached), accompanied by the original of this Letter of Credit (or a
replacement Letter of Credit issued pursuant to this paragraph), upon
receipt of the above-mentioned documents, we will issue and deliver a
replacement Letter of Credit to the transferee which (I) designates
the transferee as beneficiary, and with all references herein to "you"
referring to it, and (II) is otherwise in the same form as this Letter
of Credit and is also transferable. Until the transferee receives the
replacement Letter of Credit in the form required hereby, this Letter
of Credit will remain outstanding and in full force and effect
notwithstanding delivery of the original hereof to us. A transfer of
this Letter of Credit as provided herein will transfer all rights
hereunder to the transferee, and the transferee will for all purposes
to be considered the Beneficiary hereunder, with full right and
authority to draw on this Letter of Credit as provided herein, but
upon the transferee's receipt of the replacement Letter of Credit in
the form required hereby, this Letter of Credit will be invalid.
L-2.
- We hereby undertake to promptly honor your sight draft(s) drawn on us,
indicating our Credit No. _____________ for all or any part of this
Letter of Credit if presented at our office at [Address], [City],
[State] [Zip Code] on or before __________________________.
- All inquiries and/or correspondence pertaining to this Letter of
Credit must be in writing and directed to the attention of [Name],
[Telephone Number], at the above-mentioned address, and must
specifically refer to this Letter of Credit No. .
Except as otherwise expressly stated herein, this Letter of Credit is
subject to the Uniform Customs and Practice for Documentary Credits (1993
Revision) International Chamber of Commerce Publication No. 500.
Very truly yours,
[Name of Bank]
By:__________________________________
Its:_________________________________
L-3.
ANNEX 1
[Name of Bank]
[Address]
[City, State, Zip Code]
Reference is made to [Name of Bank] Letter of Credit No._____________ .
The undersigned, as Beneficiary hereby irrevocably transfers to
___________________________________ (the "Transferee") all rights of the
undersigned to draw under the Letter of Credit.
Very truly yours,
Opus Union Station, L.L.C.
By:__________________________________
Its:_________________________________
L-4.
EXHIBIT M
FORM OF STOCK PLEDGE AGREEMENT
SECURITY DEPOSIT PLEDGE AGREEMENT
THIS SECURITY DEPOSIT PLEDGE AGREEMENT (the "Agreement"), dated as of
_____ ____,1999, is between Xxxxxx.xxx, Inc. ("Tenant"), a Delaware corporation,
and OPUS Union Station, L.L.C. ("Landlord"), a Delaware limited liability
company.
The parties hereto agree as follows:
1. DEFINITIONS
For purposes of this Agreement, the following terms have the meanings
set forth below:
"Collateral" has the meaning specified in Section 5.
"Collateral Securities" means fixed income securities that meet the
following requirements:
(a) are rated A- or better by Standard & Poor's Rating Group or A3
or better by Xxxxx'x Investors Service;
(b) are freely transferable without restriction of any kind
(including any restrictions that may be imposed under federal or state
securities laws);
(c) have remaining maturities of not more than 3 years; and
(d) otherwise meet the requirements of Section 17.18.4 of the
Lease, a copy of which is attached to this Agreement as EXHIBIT A.
"Control Account" means the account established by Tenant in its name
at Xxxxxx Xxxxxxx & Co., Bankers Trust Company, Seafirst Bank or such other
brokerage firm or bank as Landlord may reasonably approve, which account is
subject to the terms and conditions of the Control Account Agreement.
"Control Account Agreement" means the "Security, Custodian and Control
Account Agreement" in substantially the form of EXHIBIT B, which is entered into
with respect to the Control Account.
"Event of Default" has the meaning specified in Section 8.
"Lease" means the "Multi Tenant Office Lease" between Tenant and
Landlord having an Effective Date of August _, 1999, as now or hereafter
amended, relating to certain premises in Building 2 (the "Building") of Xxxx
Xxxxxx @ Xxxxx Xxxxxxx, Xxxxxxx, Xxxxxxxxxx.
"Market Value" means, as of any date of determination, the market value
of the Collateral Securities then held in the Control Account, as reflected on
the most recently monthly account statement delivered to Landlord and Tenant
pursuant to the Control Account Agreement.
2. PURPOSE
This Agreement is for the purpose of securing the prompt payment and
performance in full when due, whether at stated maturity, by acceleration or
otherwise, of Tenant's obligations (the "Obligations") with respect to the
security deposit (the "Security Deposit") that are detailed in Section 17.18 of
the Lease. The amount of the
M-1.
Security Deposit required under the terms of the Lease from time to time is
referred to as the "Security Deposit Amount.
3. COLLATERAL SECURITIES
As collateral for the Obligations throughout the term of the Lease,
Tenant will pledge to Landlord, and grant Landlord, a perfected, first priority
security interest in, Collateral Securities held in the Control Account with a
Market Value at all times equal to 115% of the Security Deposit Amount, or such
lower percentage thereof as may be permitted by the second paragraph of Section
17.18.4 of the Lease (the "Required Percentage"). A list of the initial
Collateral Securities pledged by Tenant and held in the Control Account is
attached to this Agreement as EXHIBIT C.
4. CONTROL ACCOUNT
Subject to the terms of the Agreement and the Control Account
Agreement, the Collateral Securities pledged by Tenant pursuant to this
Agreement shall at all times be held in the Control Account. The maintenance,
disposition and transfer of the Control Account and all Collateral Securities
held therein shall at all times be subject to the terms of the Agreement and the
Control Account Agreement.
5. GRANT OF PERFECTED FIRST LIEN SECURITY INTEREST
Throughout the term of the Lease, as security for the Obligations,
Tenant hereby delivers, pledges, grants, transfers, assigns and sets over to
Landlord, and hereby grants to Landlord a continuing perfected first lien
security interest in, the following (the "Collateral"):
(a) All Collateral Securities, securities, shares, certificates,
cash, cash equivalents, financial assets and other assets held in the Control
Account;
(b) The Control Account;
(c) All securities entitlements and financial assets relating to
the foregoing; and
(d) All proceeds and products of any of the foregoing held in the
Control Account.
6. CONSENT RIGHTS, TRADING RIGHTS AND PAYMENTS IN RESPECT OF THE
COLLATERAL
(a) So long as no Event of Default has occurred and is continuing,
Tenant shall be entitled (i) to exercise (but not in a manner inconsistent with
this Agreement or the Control Account Agreement) all consent or other voting
rights with respect to the Collateral Securities, (ii) to receive and retain all
regularly scheduled payments of interest or dividends in respect of the
Collateral Securities or (iii) to substitute at any time during the term of the
Lease the Collateral Securities with other Collateral Securities of equal or
greater value ("Substitute Collateral"), provided Landlord obtains a perfected
first priority security interest in the Substitute Collateral Securities prior
to the release of the pledged Collateral Securities. Upon such substitution,
release and withdrawal of such released assets from the Control Account, such
released assets will no longer be subject to a security interest in favor of
Landlord and, unless subsequently re-deposited into the Control Account, will no
longer be "Collateral": within the meaning of this Agreement.
(b) If an Event of Default has occurred and is continuing,
Landlord shall be entitled (i) to exercise all consent or other voting rights
with respect to the Collateral Securities, (ii) to any and all rights of sale,
conversion, exchange, subscription, withdrawal and any other rights, privileges
or options pertaining to the Collateral as if Landlord were the absolute owner
thereof and (iii) to receive and retain, as additional Collateral hereunder, any
and all interest, dividends or other payments at any time and from time to time
paid on the Collateral; provided, however, that prior to any exercise by
Landlord of any of the preceding rights with respect to the Collateral
Securities, Landlord agrees to provide Tenant three (3) business days' prior
written notice of its intent to exercise its rights to the to the Collateral.
Tenant appoints Landlord its attorney-in-fact, with full power of substitution,
upon an
M-2
Event of Default and its continuance for purpose of exercising its
remedies under this Agreement and taking any action and executing any instrument
reasonably necessary or desirable to accomplish the purposes of this Agreement
as a result of or in connection with the Event of Default, which appointment is
irrevocable and coupled with an interest.
(c) Any principal amount at any time paid in respect of the
Collateral Securities (whether at the acceleration thereof, as a scheduled or
mandatory sinking fund payment, in redemption or prepayment thereof or at the
maturity thereof) shall constitute part of the Collateral and shall be held in
the Control Account until reinvested therein as provided in the Collateral
Account Agreement. If for any reason Tenant should receive any such payment of
principal in respect of the Collateral Securities, Tenant shall receive and hold
the same in trust, for the benefit of Landlord, and shall promptly deposit such
payment (or, at Tenant's option, substitute Collateral Securities) in the
Control Account.
7. REPRESENTATIONS, WARRANTIES AND COVENANTS BY TENANT
(a) Tenant represents that the execution, delivery and performance
of this Agreement does not violate any agreement to which it is bound or any law
or regulation applicable to Tenant, and that it has the corporate power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder.
(b) Tenant represents that it is, for all Collateral Securities,
the sole beneficial owner of the Collateral Securities and the proceeds thereof
free and clear of any adverse claim, pledge, mortgage, hypothecation,
encumbrance, security interest, lien or other right, title or interest of any
party except for the first priority security interest created favor of Landlord
pursuant to and in accordance with this Agreement. Tenant will not create or
permit to exist any adverse claim, pledge, mortgage, hypothecation, encumbrance,
security interest, lien or other encumbrance on or against the Collateral,
except the lien and security interest granted hereunder. Tenant further
represents, except as permitted under this Agreement and the Control Account
Agreement, that for the term of this Agreement it will not sell, convey,
transfer or otherwise dispose of any of the Collateral Securities.
(c) Tenant represents that this Agreement and delivery of the
Collateral into the Collateral Account creates a valid, perfected, and first
priority security interest in the Collateral in favor of Landlord, and all
actions necessary to achieve such perfection have been duly taken.
(d) Tenant represents that this Agreement and delivery of the
Substitute Collateral into the Collateral Account pursuant to clause (iii) of
Section 6(a) will create a valid, perfected, and first priority security
interest in the Substitute Collateral in favor of Landlord, and all actions
necessary to achieve such perfection, upon delivery to the Custodian, will have
been duly taken.
(e) Tenant at all times will cause the Control Agreement to remain
in full force and effect and will cause the Collateral Securities to be held in
the Control Account.
(f) Upon demand by Landlord, Tenant will permit inspection of the
Collateral Securities by Landlord.
(f) Tenant at all times will cause the Market Value of Collateral
Securities held in the Control Account to equal or exceed the Required
Percentage of the Security Deposit Amount. If, at any time, the Market Value of
Collateral Securities held in the Control Account is less than the Required
Percentage of the Security Deposit Amount, Tenant shall immediately cause to be
deposited in the Control Account additional Collateral Securities with a Market
Value sufficient to cause the aggregate Market Value of all Collateral
Securities then held in the Collateral Account to equal or exceed the Required
Percentage of the Security Deposit Amount.
8. EVENTS OF DEFAULT; REMEDIES
(a) The occurrence of any of the following constitutes an "Event
of Default":
(i) Failure of Tenant to perform the Obligations;
M-3
(ii) The occurrence of an "Event of Default" under the
Lease,
(iii) Failure of Tenant to comply with any covenant or
agreement required to be observed or performed by it pursuant to this
Agreement or the Control Account Agreement;
(iv) Any representation or warranty made by Tenant
hereunder is, now and also upon the delivery of any Collateral or
Substitute Collateral to Custodian, false in any material respect; or
(v) This Agreement or the Control Account Agreement for
any reason ceases to be valid, binding or enforceable; or Tenant,
Custodian or any of their affiliates, or any of the assignees of
Tenant, Custodian or any of their affiliates, or any entity related to
either Tenant or Custodian or any trustee in bankruptcy or receiver for
Tenant, Custodian or any of their affiliates, or any of the assignees
of Tenant, Custodian or any of their affiliates contests or denies the
validity or enforceability thereof.
(b) Upon the occurrence and continuance of an Event of Default,
Landlord shall be entitled to exercise the following rights and remedies
(i) To give instructions pursuant to the Control Account
Agreement, instructing the account manager thereunder to sell or
withdraw Collateral Securities or other assets from the Control Account
and/or any proceeds thereof and deliver the same to or for the account
of Landlord in an amount not to exceed the Security Deposit;
(ii) To exercise all rights and remedies of a secured
party under the Uniform Commercial Code of California with respect to
the Collateral; and
(iii) To exercise all other rights and remedies available
to it under this Agreement at law or in equity;
provided, however, that Landlord shall give Tenant three (3) business days'
prior written notice of its intent to exercise remedies or to make a sale and/or
withdrawal of any Collateral Securities or other assets held in the Control
Account and any instructions delivered by Landlord pursuant to the Control
Account Agreement shall be accompanied by a sworn, notarized affidavit stating
that such notice has been given.
9. LIABILITY
Tenant shall indemnify the financial institution party to the Control
Account Agreement for any and all costs and expenses, and attorney's fees and
court costs, which directly result from any sale of Collateral Securities and
the withdrawal of the settlement proceeds thereof (not to exceed the amount of
the Security Deposit Amount) authorized by Landlord to fulfill any of Tenant's
Obligations; provided, however, that nothing in this indemnification provision
shall operate or be construed to limit Tenant's rights against Landlord under
the terms of the Lease or Landlord's rights against Tenant thereunder. Tenant
shall indemnify and defend, with counsel reasonably acceptable to Landlord,
Landlord's right, title and first priority security interest in the Collateral
and Substitute Collateral. After Landlord delivers a Notice of Exclusive Control
to the financial institution party to the Control Account Agreement, (a)
Landlord may liquidate or sell all or any part of the Collateral in a
commercially reasonable manner and whether or not the value of any of the
Collateral is rising, failing or holding, and (b) Landlord is not required to
exercise any right, option or privilege arising from or relating to the
Collateral. The provisions of this section shall survive expiration or
termination of this Agreement or any determination that this Agreement or any
portion is void or voidable.
10. ASSIGNMENT AND AMENDMENT
(a) This Agreement may not be amended without the prior written
consent of both parties.
(b) This Agreement may not be assigned by either party without the
prior written consent of the other party; provided, however, that:
M-4
(i) Landlord may at any time, and without notice to or
the necessity of obtaining Tenant's consent, assign to any financial institution
providing a loan to Landlord in connection with the Building (together with any
such financial institution's successors or assigns, the "Lender") all of its
rights under, and interest in, this Agreement. Within one (1) business day after
making any such assignment, Landlord shall deliver to Tenant written notice of
the assignment and a copy of the instrument of assignment. Upon receipt by
Tenant of the aforementioned notice, Lender shall thereafter succeed to all of
the rights and privileges of Landlord and shall be subject to the same
obligations, terms, conditions and restrictions applicable to Landlord under the
terms of this Agreement, provided that after Lender sends Custodian a Lender
Notice of Exclusive Control pursuant to Section 10(b) of the Control Account
Agreement, Lender shall also be subject to the same obligations (including
indemnification obligations arising from and after the date of the Lender Notice
of Exclusive Control) as Landlord. Lender will not be liable for any act,
omission or breach by Landlord of any obligation under this Agreement or the
Control Account Agreement which occurs prior to the date of the Lender Notice of
Exclusive Control and will, upon any sale or transfer by Lender of its interest
in the property and the Lease, automatically be released and discharged from any
and all liability thereafter accruing under this Agreement or the Control
Account Agreement; and
(ii) If Landlord assigns its interest in the Lease,
whether voluntary or through involuntary assignment or transfer such as
bankruptcy or foreclosure, such assignment will automatically and without
further action or notice to Tenant, cause an assignment of Landlord's rights in
this Agreement and the Collateral to the assignee and upon the assignee's
assumption of Landlord's obligations under the Lease (including Landlord's
obligations with respect to this Agreement and the Collateral), Landlord will
thereafter accrue no further liability for the return of the collateral and
Tenant will look solely to the transferee or assignee for the return of the
Collateral. Upon request of either party, Landlord and Tenant agree to execute
such documents as may be necessary or desirable to reflect or better confirm
such assignment, assumption and/or release.
11. WAIVERS
A waiver by either party of a breach of any provision of this Agreement
shall not constitute a waiver of any subsequent breach of such provision or of
any other provision hereof. Failure of either party to enforce at any time or
from time to time any provision of this Agreement shall not be construed as a
waiver thereof.
12. SEVERABILITY
Each provision of this Agreement is intended to be severable from the
others so that if any provision or term hereof is illegal or invalid for any
reason whatsoever, such illegality or invalidity shall not affect the validity
of the remaining provisions and terms hereof.
13. GOVERNING LAW: SUCCESSORS BOUND
This Agreement shall be construed in accordance with the internal laws
of the State of Washington, determined without regard to conflicts of law.
Subject to all the terms and provisions hereof, this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Each party hereto consents to submit to the jurisdiction
of the courts of the State of Washington and of the United States of America
located in King County, Washington for any action, suit or proceeding arising
out of or relating to this Agreement. Each party further waives any objection to
the laying of venue of any such action, suit or proceeding in such courts, and
further agrees not to plead or claim in any such court that any such action,
suit or proceeding has been brought in an inconvenient forum.
14. NOTICES
All notices must be in writing and must be sent by personal delivery,
United States registered or certified mail (postage prepaid) or by an
independent overnight courier service, addressed to the addresses specified
below or at such other place which is not a post office box as either party may
designate to the other party by written notice given in accordance with this
section. Notices given by mail are deemed effective within three business days
after the party sending the notice deposits the notice with the United States
Post Office. Notices delivered by courier are
M-5
deemed effective on the next business day after the day the party delivering the
notice timely deposits the notice with the courier for overnight (next day)
delivery.
If to Tenant: c/o General Counsel
Xxxxxx.xxx, Inc.
0000 00xx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
With a copy to: Treasurer
Xxxxxx.xxx, Inc.
0000 00xx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
If to Landlord: x/x Xxxxxx X. Xxxxxxx, Xxxx Xxxxxxxxx
Xxxx Xxxxx Xxxxxxx, X.X.X.
000 - 000xx Xxxxxx XX
Xxxxxxxx, XX 00000
With a copy to: x/x Xxxxx Xxxxxxxxxx
Xxxx, X.X.X.
00000 Xxxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000
15. ENTIRE AGREEMENT
This Agreement, together with the Lease and the Control Account
Agreement, embody the entire agreement and understanding between the parties
pertaining to the subject matters hereof and thereof, and supersedes any prior
agreements, understandings, negotiations, representations and discussions,
whether oral or written, of the parties, pertaining to such subject matters. The
parties acknowledge that they have all participated in the drafting of this
Agreement, and that they all have been represented by legal counsel of their own
choosing and the language of all parts of this Agreement shall in all cases be
construed as a whole, according to its fair meaning, and not strictly for or
against any of the parties.
16. FURTHER ASSURANCES
Tenant shall, upon the request of Landlord, execute and deliver such
other instruments and take and cause to be taken such further actions as may be
reasonably necessary or reasonably appropriate to carry out the provisions and
purposes of this Agreement and the Lease, and specifically to continue the
creation, attachment and perfection of the security interest granted hereunder,
or which are necessary or appropriate for Landlord to enforce its rights and
remedies hereunder. Tenant will promptly execute and deliver to Landlord such
UCC financing statements to be filed of record in the appropriate filing office
or offices if Landlord deems such filing or filings to be necessary or
advisable. Tenant will also deliver to Landlord, at its expense, an opinion
letter from Xxxxxxx Coie LLP, or other attorneys reasonably acceptable to
Landlord, substantially in the form of EXHIBIT D.
17. REINSTATEMENT
In the event all or any portion of the Obligations are paid by Tenant
or any other person, this Agreement, the Control Account Agreement, the
respective obligations of Tenant hereunder and thereunder and the liens and
security interests created hereby shall continue and remain in full force and
effect or be reinstated, as the case may be, in the event that all or any part
of such payments are rescinded or recovered from Landlord as a preference,
fraudulent transfer or otherwise, and any such payments which are so rescinded
or recovered shall constitute Obligations for all purposes of this Agreement and
the Control Account Agreement.
M-6
IN WITNESS WHEREOF, Tenant and Landlord have caused this Agreement to
be executed by their proper corporate officers as of the day and year first
above written.
XXXXXX.XXX, INC.,
a Delaware corporation
By ______________________________________
Name:____________________________________
Title:___________________________________
OPUS UNION STATION, L.L.C.,
a Delaware limited liability company
By ______________________________________
Name:____________________________________
Title:___________________________________
M-7
EXHIBIT A
TO
SECURITY DEPOSIT PLEDGE AGREEMENT
COPY OF SECTION 17.18.4 OF THE LEASE
At the option of Tenant, Tenant may elect to provide all or
any portion of the Security Deposit by pledging for the benefit of Landlord
marketable securities with a market value equal to the Security Deposit Amount.
The pledge will be of short term (three (3) years or less) fixed income
marketable securities from Tenant's corporate cash investment portfolio,
including money market funds, rated A-/A3 or equivalent by a nationally
recognized credit rating service. The pledged marketable securities will be held
by a bank or financial institution mutually approved by Landlord and Tenant as
custodian for Landlord, either in a separate custodian account or as specially
designated securities within a larger custodian account. The pledge agreement
must be substantially in the form of EXHIBIT M attached hereto and provide
Landlord with a perfected first lien security interest in the pledged
securities. The custodial agreement must be substantially in the form of EXHIBIT
N attached hereto, and provide direct access authorization which would permit
Landlord in an Event of Default, without approval of Tenant, to authorize the
sale of the securities and the withdrawal of the proceeds thereof (not to exceed
the amount of the then required Security Deposit) for application by Landlord on
the same terms and conditions as Landlord could draw on a LOC in an Event of
Default. Tenant will be entitled to retain all interest and other income capital
gains earned or generated by the pledged securities.
At all times, the value of the pledged securities if they are
held in the form of corporate bonds must equal or exceed 115% of the amount then
required, however such amount will be reduced to 110% if not more than 50% of
such securities are held in the form of corporate bonds. If the market value of
the pledged securities drops below the required level of the then-required
Security Deposit, Tenant will immediately add additional marketable securities
to the pledge to increase the value of the pledged securities to equal or exceed
the required level. Failure of Tenant to increase the pledged securities as
required within 3 Business Days of notice from Landlord and / or the account
custodian will constitute an Event of Default. Tenant will have the right to
substitute additional marketable securities for the securities subject to the
pledge, provided Landlord obtains a perfected first lien security interest in
the substituted securities prior to the release of the pledged securities.
M-A-1.
EXHIBIT B
TO
SECURITY DEPOSIT PLEDGE AGREEMENT
[COPY OF EXECUTED CONTROL ACCOUNT AGREEMENT]
M-B-1.
EXHIBIT C
TO
SECURITY DEPOSIT PLEDGE AGREEMENT
COLLATERAL SECURITIES IN ACCOUNT
M-C-1.
EXHIBIT D
TO
SECURITY DEPOSIT PLEDGE AGREEMENT
FORM OF OPINION LETTER
August ___, 1999
Opus Union Station, L.L.C.
000 - 000 Xxxxxx X.X.
Xxxxxxxx, XX 00000
RE: SECURITY DEPOSIT FOR MULTI-TENANT OFFICE LEASE TO XXXXXX.XXX,
INC., BUILDING 2 OF OPUS CENTER
Ladies and Gentlemen:
We have acted as counsel to Xxxxxx.xxx, Inc., a Delaware corporation
(the "Company"), in connection with the transactions contemplated by the tenant
security deposit provisions of the Multiple-Tenant Office Lease (the "Lease")
dated as of August ____, 1999 between the Company and Opus Union Station
L. L. C. (the "Landlord").
A. BASIS OF OPINION
In connection with this opinion letter, we have examined originals, or
copies certified or otherwise identified to our satisfaction, of such documents,
records, certificates and statements of government officials, corporate officers
and other representatives of the persons referred to therein, and such other
instruments as we have deemed relevant or necessary as the basis for the
opinions herein expressed, including the following:
A.1. The Lease, including the exhibits thereto;
A.2. The Security Deposit Pledge Agreement (the "Pledge Agreement")
between the Company and Landlord, dated as of August ____, 1999; and
A.3. The Security, Custodian and Control Agreement (the "Control
Account Agreement") among Landlord, the Company and Bankers Trust Company of
California, N.A. (the "Custodian"), dated as of August ____, 1999.
Documents A.2 and A.3 are hereinafter collectively referred to as the
"Security Documents." The assets pledged by the Company as security in
accordance with the Pledge Agreement and delivered to and held by the Custodian
in the State of California in accordance with the Control Account Agreement are
referred to herein as the "Collateral."
As to matters of fact bearing upon the opinions expressed herein, we
have, with your consent and without investigation, relied upon:
(a) information in documents issued by the Secretaries of
State of Delaware and Washington such as, without limitation,
certificates of corporate good standing of the Company; and
(b) information provided in certificates by an officer of
the Company.
We are rendering this opinion letter to you at the request of the
Company pursuant to Section 16 of the Pledge Agreement.
M-D-1.
B. ASSUMPTIONS
For purposes of this opinion letter, we have relied, without
investigation, upon the following assumptions:
B-1 All natural persons who are involved on behalf of the Company
have sufficient legal capacity to enter into and perform the transactions
contemplated by the Lease and the Security Documents or to carry out their role
in it.
B-2 The Company holds the requisite title and rights to any
property involved in the transactions.
B-3 Each party to the transactions other than the Company has
satisfied those legal requirements applicable to it that are necessary to make
the documents signed by it enforceable against it in accordance with its terms.
B-4 Each party to the transactions other than the Company has
complied with all legal requirements pertaining to its status as such status
relates to its rights to enforce the Lease and the Security Documents against
the Company.
B-5 Each document submitted to us for review is accurate and
complete, each such document that is an original is authentic, each such
document that is a copy conforms to an authentic original, and all signatures on
each such document are genuine.
B-6 Each public authority document reviewed by us for the purpose
of rendering this opinion letter is accurate, complete and authentic, and all
official public records (including their proper indexing and filing) are
accurate and complete.
B-7 There has been no mutual mistake of fact or misunderstanding,
fraud, duress or undue influence with respect to, or affecting any of, the
parties to the transactions.
B-8 The conduct of the parties to the transactions has complied
with any requirement of good faith, fair dealing and conscionability.
B-9 The party to whom this opinion letter is directed and any
agent acting for it in connection with the transactions have acted in good faith
and without notice of any defense against the enforceability of any rights
created by, or adverse claim to any property or security interest transferred or
created as a part of, the transactions.
B-10 There arc no agreements or understandings among the parties,
written or oral, and there is no usage of trade or course of prior dealing among
the parties that would, in either case, define, supplement or qualify the terms
of the Security Documents or Section 17.18 of the Lease.
B-11 All statutes, judicial and administrative decisions, and rules
and regulations of governmental agencies, constituting the law examined by us,
are generally available (i.e., in terms of access and distribution following
publication or other release) to lawyers practicing in such jurisdiction, and
are in a format that makes legal research reasonably feasible.
B-12 The constitutionality or validity of the relevant statute,
rule, regulation or agency action is not in issue unless a reported decision in
the opining jurisdiction has specifically addressed but not resolved, or has
established, its unconstitutionality or invalidity.
B-13 Other agreements and court orders will be enforced as written.
B-14 The Company will not in the future take any discretionary
action including a decision not to act) permitted under the Security Documents
that would result in the violation of law or constitute a breach or default
under any other agreement or court order.
M-D-2
B-15 All parties to the transactions will act in accordance with,
and will refrain from taking any action that is forbidden by, the terms and
conditions of any Security Document or Section 17.18 of the Lease.
B-16 The enforceability of any provisions in the Security Documents
providing for the exercise of remedies in any combination or sequence may be
limited by the California Commercial Code.
B-17 The provisions of the Security Documents or any other
documents requiring the Company or any other party to pay Landlord's attorneys'
fees and costs in any action to enforce the provisions thereof may not be
enforceable by Landlord if Landlord is not the prevailing party in such action.
Whenever a statement herein is qualified by the phrase "to our
knowledge," or by any other phrase of similar import, or where it is noted that
nothing has been brought to our attention, it means that the opinion stated is
based solely upon the conscious awareness of information as to the matters being
opined upon by (a) the attorney who signs, on behalf of Xxxxxxx Coie LLP, this
opinion letter, (b) any attorney at Xxxxxxx Coie LLP who has been actively
involved in negotiating the transactions, preparing the Security Documents or
preparing this opinion letter, and (c) solely as to information relevant to a
particular opinion issue or confirmation regarding a particular factual matter
(e,g., pending or threatened legal proceedings), any attorney at Xxxxxxx Coie
LLP who is primarily responsible for providing the response concerning that
particular opinion issue or confirmation. We have not undertaken, nor were we
obligated or expected to undertake, an independent investigation to determine
the accuracy of the facts or other information as to which our knowledge is
sought, and any limited inquiry undertaken by us during the preparation of this
opinion letter should not be regarded as such an investigation. No inference as
to our knowledge of any matters bearing on the accuracy of any such statement
should be drawn from the fact of our representation of the Company.
C. OPINIONS
Based upon the foregoing examinations and assumptions and subject to
the qualifications stated below, we are of the opinion that:
C-1 The Company is duly organized, validly existing and in good
standing under Delaware law and is duly qualified to do business and in good
standing as a foreign corporation in Washington.
C-2 The Company has all necessary corporate power and corporate
authority to enter into, and to perform its obligations under, each of the
Security Documents and to perform its obligations under Section 17.18 of the
Lease.
C-3 The Company has authorized, by all necessary corporate action,
the execution, delivery and performance of each of the Security Documents and
the Lease.
C-4 Each of the Security Documents and Section 17.18 of the Lease,
when the Security Documents and the Lease, respectively, have been executed and
delivered by the Company, will constitute the legal, valid and binding
obligation of the Company enforceable in accordance with their respective terms.
C-5 To our knowledge, there are no actions or proceedings against
the Company, pending or threatened in writing, before any court, government
agency or arbitrator that seek to affect the enforceability of any Security
Document or Section 17.18 of the Lease or that are specifically applicable to
the Collateral.
C-6 Execution and delivery by the Company of, and performance by
the Company of its agreements in, each of the Security Documents and Section
17.18 of the Lease are not prohibited by, nor do they result in the imposition
of a fine, penalty or similar action or a violation under, any statute or
regulation of Washington or California that a lawyer in Washington or
California, respectively, exercising customary professional diligence would
reasonably recognize as being directly applicable to the Company or the
transactions contemplated by such documents.
M-D-3
C-7 The Security Documents, when executed and delivered by the
parties thereto, will create and perfect a security interest in the Collateral
in favor of Landlord as secured party under Division 9 of the California
Commercial Code or Chapter 62A- 9 of the Revised Code of Washington, as the case
may be, upon deposit of the Collateral with, and so long as the Collateral is
held by, the Custodian pursuant to the Control Account Agreement.
C-8 The Collateral is not a general intangible under Division 9 of
the California Commercial Code or Chapter 62A-9 of the Revised Code of
Washington
D. QUALIFICATIONS
The opinions set forth herein are subject to the following
qualifications:
D-1 The opinions set forth herein, including those opinions as to
the enforceability of the Security Documents and Section 17.18 of the Lease, are
subject to the effect of bankruptcy, insolvency, reorganization, receivership,
moratorium and other similar laws affecting the rights and remedies of creditors
generally and the effect of general principles of equity, whether applied by a
court of law or equity.
D-2 The opinions set forth herein, including those opinions as to
the enforceability of the Security Documents and Section 17.18 of the Lease, are
subject to the effect of generally applicable rules of law that
(a) limit or affect the enforceability of provisions of a
contract that purport to require waiver of the obligations of good
faith, fair dealing, diligence and reasonableness;
(b) provide that forum selection clauses in contracts are
not necessarily binding on any court in the forum selected;
(c) limit the availability of a remedy under certain
circumstances where another remedy has been elected;
(d) limit the right of a creditor to use force or cause a
breach of the peace in enforcing rights;
(e) relate to the sale or disposition of collateral or
the requirements of a commercially reasonable sale ,
(f) limit the enforceability of provisions of releasing,
exculpating or exempting a party from, or requiring indemnification of
a party for, liability for its own action or inaction, to the extent
that the action or inaction involves gross negligence, recklessness,
willful misconduct or unlawful conduct;
(g) may, where less than all of a contract may be
enforceable, limit the enforceability of the balance of the contract to
circumstances in which the unenforceable portion is not an essential
part of the agreed exchange;
(h) govern and afford judicial discretion regarding the
determination of damages and entitlement to attorneys' fees and other
costs;
(i) may permit a party who has materially failed to
render or offer performance required by the contract to cure that
failure unless permitting a cure would unreasonably hinder the
aggrieved party from making substitute arrangements for performance or
unless it is important in the circumstances to the aggrieved party that
performance occur by the date stated in the contract.
D-3 Notwithstanding any provisions in the Security Documents to
the effect that such documents reflect the entire understanding of the parties
with respect to the matters described therein, the courts of the State of
Washington may consider extrinsic evidence of the circumstances surrounding the
negotiation and execution of such documents to ascertain the intent of the
parties in using the language employed in the documents, regardless of
M-D-4
whether or not the meaning of the language used in the documents is plain and
unambiguous on its face, and may determine that additional or supplemental terms
can be incorporated into the documents.
D-4 The opinions set forth herein, including those opinions as to
the enforceability of the Security Documents and Section 17.18 of the Lease, are
subject to the qualification that they do not address, except as expressly
stated elsewhere in the opinion letter, enforceability of any of the following
provisions included in such documents:
(a) choice of law provisions;
(b) provisions that contain a waiver of (i) broadly or
vaguely stated rights, (ii) the benefits of statutory, regulatory or
constitutional rights, unless and to the extent the statute, regulation
or constitution explicitly allows waiver, (iii) unknown future
defenses, and (iv) rights to damages;
(c) provisions that attempt to change or waive rules of
evidence or fix the method or quantum of proof to be applied in
litigation or similar proceedings;
(d) forum-selection clauses and consent to jurisdiction
clauses (both as to personal jurisdiction and subject matter
jurisdiction);
(e) provisions waiving the pledgor's rights under the
Uniform Commercial Code, including the right that Collateral be
disposed of in a reasonable commercial manner; and
(f) provisions appointing one party as an
attorney-in-fact for an adverse party.
The opinions set forth herein are as of the date hereof, and we
disclaim any undertaking or obligation to update these opinions for events and
circumstances occurring after the date hereof or as to facts relating to prior
events that are subsequently brought to our attention.
This opinion letter is rendered only to you and is solely for your
benefit in connection with the transactions contemplated by the Security
Documents and Section 17.18 of the Lease. This opinion is rendered only to you
and is, subject to the next sentence, solely for you benefit in connection with
the transactions contemplated by the Security Documents and Section 17.18 of the
Lease. This opinion letter may not, without our prior written consent, be used
or relied upon for any other purpose or by any other person except your assignee
of the Lease and your lender, in each instance in accordance with Section 10 of
the respective Security Documents.
Very truly yours,
Xxxxxxx Coie LLP
PBA.jab
M-D-5
EXHIBIT N
FORM OF CUSTODIAL AGREEMENT
SECURITY, CUSTODIAN AND CONTROL AGREEMENT
THIS SECURITY, CUSTODIAN AND CONTROL AGREEMENT ("Agreement") is made
and entered into as of the _ day of August, 1999, by and among Xxxxxx.xxx, Inc.
("Pledgor"), Bankers Trust Company of California, N.A. ("Custodian"), and OPUS
Union Station, L.L.C. (collectively, "Pledgee").
RECITALS
A. Pledgor and Pledgee have entered into a "Security Deposit
Pledge Agreement" dated as of August ____, 1999 ("Pledge Agreement") pursuant to
which Pledgor has pledged for the benefit of Pledgee certain securities
("Securities") and has granted Pledgee a security interest in the Account
(hereinafter described) pursuant to the Pledge Agreement;
B. The Pledge Agreement requires Pledgor to establish a third
party custodial account or subaccount for the deposit of such Securities;
C. Pledgor and Custodian have entered into a Custodian Agreement
dated September 8, 1998 ("Custodian Agreement") pursuant to which Custodian acts
as custodian of certain assets of Pledgor;
D. Pledgor and Pledgee desire Custodian to accept the Securities
and to hold the Securities and the cash and non-cash proceeds in a separate,
segregated custodian account or subaccount (the "Account") on the terms set
forth herein;
E. Custodian has established for this purpose Account No. _______
in the name of Pledgor in which Custodian will hold the Securities pursuant to
this Agreement; and
F. Pledgor, Pledgee and Custodian are entering into this
Agreement to provide for the control of the Account and as a means to perfect
the security interest of Pledgee in the Account and Pledgor's Security
Entitlement in respect of the Securities and any other Financial Assets in the
Account from time to time. It is understood that Custodian has no responsibility
to Pledgee in respect to the validity or perfection of such security interest
other than to act in accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, it is agreed that the Custodian will accept the Securities and
that it will hold the same as Custodian hereunder for the use and benefit, and
subject to the powers and duties, as follows:
1. CERTAIN DEFINITIONS
As used herein the following terms shall have the following meanings:
"Entitlement Holder" means a person identified in the records of
Custodian as the person having a Security Entitlement against Custodian.
"Event of Default" shall have the meaning assigned to it in the Pledge
Agreement.
"Entitlement Order" means a notification communicated to Custodian
directing transfer or redemption of a Financial Asset to which the Entitlement
Holder has a Security Entitlement.
"Financial Asset" shall mean any property, including cash, held in the
Account.
N-1.
"Security Entitlement" shall mean the rights and property interest of
an Entitlement Holder with respect to a Financial Asset as provided in Chapter 5
of Division 8 of the California Commercial Code.
2. THE ACCOUNT
EXHIBIT A attached hereto is a complete and accurate statement of the
Financial Assets maintained in the Account as of the date thereof. EXHIBIT A
does not reflect any Financial Assets which are registered in the name of
Pledgor, payable to Pledgor's order, or specifically endorsed to Pledgor, which
have not been endorsed to Custodian, or its nominee, or in blank. Except for the
claims and interests of Pledgee and Pledgor in the Account (subject to any claim
in favor of Custodian permitted under Sections 3 and 11 hereof), Custodian does
not know of any claim to or interest in the Account. Custodian will treat all
property and cash held by it in the Account as Financial Assets under Division 8
of the California Commercial Code
3. THE SECURITIES
(a) Custodian shall accept and retain the Securities in the form
in which received, except for those Securities received in physical form which
may be held in the name of Custodian's nominee or agent or which may be
converted to the Depository Trust Company or other book entry system, subject in
each case to withdrawal or other disposition pursuant to this Agreement, the
Pledge Agreement or on joint written instruction of Pledgee and Pledgor. All
Securities delivered to Custodian shall be in good deliverable form as
determined by Custodian with reference to applicable law and industry practices.
Except as otherwise provided in Section 8, Custodian shall be under no duty to
ascertain or inform any party to this Agreement of, or be required to take any
action concerning, any maturities, calls, redemptions, conversions, exchanges,
reorganizations, offers, tenders or similar matters relating to the Securities,
except that if information as to a call is received by it, Custodian shall
notify Pledgee of any called Securities.
(b) Custodian hereby acknowledges the security interest granted to
Pledgee by Pledgor. Custodian shall maintain all Securities free of any lien,
charge or claim of any kind in favor of Custodian or any person claiming through
Custodian, and it will not assert any lien, encumbrance, claim or right of
set-off against the Account or any Financial Asset carried in the Account or any
credit balance in the Account, except as otherwise provided in this Section 3(b)
and in Section 11 hereof. Notwithstanding the foregoing, any Financial Asset in
the Account may at all times be held and treated by Custodian as collateral for
the payment of any Financial Asset for which payment has not been made, or for
the purchase and sale of foreign exchange or of contracts for foreign exchange
relating to authorized transactions in the Account. Custodian will not agree
with any third party that Custodian will comply with Entitlement Orders
concerning the Account originated by such third party without the prior written
consent of Pledgee and Pledgor. Custodian represents that no such agreement with
any third party is now in effect.
4. CONTROL
Custodian will comply, and will cause its agents and subcustodians to
comply, with Entitlement Orders originated by Pledgee concerning the Account
without further consent by Pledgor, provided that such Entitlement Order must be
accompanied by the notarized affidavit required pursuant to the last sentence of
this Section 4. Except as otherwise provided in Sections 3 and 5 hereof,
Custodian shall make trades of Financial Assets held in the Account at the
direction of Pledgor, or its authorized representatives, and comply with
Entitlement Orders concerning the Account from Pledgor, or its authorized
representatives, until such time as Pledgee delivers a written notice to
Custodian, substantially in the form of EXHIBIT B hereto and accompanied by the
affidavit required by the last sentence of this Section 4, that Pledgee is
thereby exercising exclusive control over the Account. Such notice may be
referred to herein as the "Notice of Exclusive Control." After Custodian
receives the Notice of Exclusive Control, it will promptly cease complying with
Entitlement Orders or other directions concerning the Account (including any
provision hereof regarding payments to the Pledgor) originated by Pledgor or its
representatives notwithstanding any contrary provision in the Custodian
Agreement. Notwithstanding the preceding provisions, any delivery of
instructions to Custodian from Pledgee directing Custodian to trade, withdraw or
transfer Financial Assets from the Account, whether by means an entitlement
order, a Notice of Exclusive Control or otherwise, shall not be effective, under
the terms of this agreement unless accompanied by a sworn, notarized affidavit
from Pledgee
N-2
stating that Pledgee has provided Pledgor with three (3) business days' prior
written notice of its intent to so trade, withdraw or transfer Financial Assets.
5. SUBSTITUTIONS AND WITHDRAWALS
Pledgor shall have the right to substitute for Securities in the
Account other Securities as authorized by the Pledge Agreement from time to
time. Substituted Securities shall be delivered to Custodian before any
Securities being substituted for are delivered to or on instructions of Pledgor
by Custodian. Except for such substitutions, Custodian shall neither accept nor
comply, and will not permit any of its agents or subcustodians to comply, with
any Entitlement Order from Pledgor withdrawing any Financial Assets from the
Account nor deliver any such Financial Asset to or on instruction of Pledgor,
without the specific prior written consent of Pledgee; provided, however, prior
to receipt by Custodian of Notice of Exclusive Control, Custodian is authorized
to collect and receive all income with respect to the Securities and any other
Financial Assets in the Account, whether interest or dividends, and to credit
such income to Pledgor.
6. RECORDS
Custodian shall maintain the Securities and shall identify the
Securities on its books and records as securities being held, subject to this
Agreement, for Pledgee as pledgee under the Pledge Agreement.
7. RETURN OF SECURITIES
Upon joint written notification from Pledgor and Pledgee, Custodian
shall return the Securities and any other Financial Assets in the Account to
Pledgor. Any such delivery shall constitute a complete discharge of Custodian
from any and all further liability for such Securities and Financial Assets
hereunder.
8. CONFIRMATIONS
Custodian shall issue a confirmation or safekeeping receipt to Pledgor
and Pledgee for each Security received by Custodian hereunder which identifies
(as applicable) the issuer, the maturity date, the number of shares, the face
amount and the coupon rate. Custodian shall supply to Pledgor and to Pledgee a
separate written report for each preceding day listing the Securities and any
other Financial Assets held in the Account and the unaudited value thereof from
Custodian. Presently, Custodian uses Xxxxxxx Xxxxx or Interactive Data
Corporation (IDC) to provide such values ("Service Provider"). Custodian may, in
its sole discretion, decide to use another similar valuation reporting service
Custodian reasonably believes to be reliable. Custodian's report shall include
the principal amount and/or number of shares of each Security or Financial
Asset, as appropriate, and the market value of each of the Securities or
Financial Assets. Pledgor and Pledgee shall promptly review all Custodian's
reports and shall promptly advise Custodian of any error, omission or inaccuracy
in the listing of Securities or Financial Assets therein known to Pledgor or
Pledgee, as the case may be. In no event shall Custodian be required to
personally determine or, except as stated above, to report the market value of
any Security. Subject to Custodian's obligation to exercise reasonable judgment
in selecting a Service Provider as set forth above, Custodian does not verify or
represent or warrant either the reliability of Service Provider or the accuracy
or completeness of any such information furnished or obtained by or through
Service Provider and Custodian shall have no liability in selecting and
utilizing Service Provider or furnishing any information derived from Service
Provider.
9. RESPONSIBILITY OF CUSTODIAN
Custodian shall have no responsibility or liability to Pledgee for
making trades of Financial Assets held in the Account at the direction of
Pledgor or its authorized representatives or, subject to Section 4 hereof,
complying with Entitlement Orders concerning the Account from Pledgor, or its
authorized representatives, which are received by Custodian before Custodian
receives a Notice of Exclusive Control from Pledgee. Custodian shall have no
responsibility or liability to Pledgor for complying with Entitlement Orders
that comply with the requirements of Section 4 or complying with Notices of
Exclusive Control that comply with the requirements of Section 4 concerning the
Account originated or by Pledgee. Custodian shall have no duty to investigate or
make any determination as to whether a default Event of Default exists under any
agreement between Pledgor and Pledgee,
N-3
and shall comply with a Notice of Exclusive Control even if Custodian receives a
claim that no such default or Event of Default exists or believes that no such
default or Event of Default exists. This Agreement does not create any
obligation or duty on the part of Custodian other than those expressly set forth
herein. Upon receipt of a Notice of Exclusive Control, Custodian shall notify
Pledgor of its receipt of such Notice of Exclusive Control and shall deliver the
Securities and any other Financial Assets in the Account to or on instructions
of Pledgee upon Pledgee's demand. Custodian may fully rely, and may take the
actions herein set forth, notwithstanding any notice of dispute between Pledgee
and Pledgor. The parties acknowledge that, notwithstanding the above, Custodian
is required to and shall comply with the orders of any court of competent
jurisdiction with respect to matters otherwise governed by this Agreement,
provided, however, that Custodian will give Pledgee and Pledgor immediate notice
and a complete copy of any order received by it.
10. ASSIGNMENT
(a) Pledgee shall have the right to assign all of its rights under
this Agreement including, but not limited to, its rights under Section 4, to any
financial institution (together with any such financial institution's successors
or assigns, the "Lender") providing loans to Pledgee in connection with the
Property described in that certain Multi Tenant Office Lease Agreement between
Pledgor (as "Tenant") and Pledgee (as "Landlord") having an Effective Date of
August _, 1999 (as now or hereafter amended, the "Lease"). Within one (1)
business day after making any such assignment of its rights and interests under
this Agreement to Lender, Pledgee shall deliver to Custodian written notice
substantially in the form of EXHIBIT C hereto. Upon receipt by Custodian of the
aforementioned notice, (i) Lender shall thereafter succeed to all of the rights
and privileges of Pledgee and shall be subject to the same conditions and
restrictions applicable to Pledgee under the terms of this Agreement, provided
that after Lender sends Custodian a Lender Notice of Exclusive Control pursuant
to Section 10(b) below, Lender shall also be subject to the same obligations
(including indemnification obligations arising from and after the date of the
Lender Notice of Exclusive Control) as Pledgee, and (ii) Custodian shall
promptly deliver to Lender a written acknowledgment of Lender's succession to
Pledgee under this Agreement. Lender will not be liable for any act, omission or
breach by Pledgee of any obligation under this Agreement or the Pledge Agreement
which occurs prior to the date of the Lender Notice of Exclusive Control and
will, upon any sale or transfer of its interest in the property and the Lease,
automatically be released and discharged from any and all liability thereafter
accruing under this Agreement or the Pledge Agreement, but no such delivery by
Lender of its Notice of Exclusive Control will release the Pledgee Landlord from
liability to the Pledgor for acts, omissions or breaches of this Agreement
during the period the Pledgee Landlord was the Pledgee hereunder.
(b) Notwithstanding Section 10(a) above, Pledgee shall continue to
exercise all of its rights under this Agreement as a licensee of Lender until
such time as Lender delivers a written notice to Custodian, substantially in the
form of EXHIBIT D hereto, that it is thereby exercising exclusive control over
the Account (the "Lender Notice of Exclusive Control"). After Custodian receives
the Lender Notice of Exclusive Control, it will promptly cease complying with
Entitlement Orders or other directions concerning the Account (including any
provision hereof regarding payments to the Pledgor) originated by Pledgor or
Pledgee or their respective representatives notwithstanding any contrary
provision in the Custodian Agreement. After delivering a Lender Notice of
Exclusive Control, Lender shall be bound by and shall comply with all the
obligations, terms, restrictions and conditions applicable to Pledgee under the
terms of this Agreement, including those concerning trade, withdrawal or
transfer of Financial Assets.
(c) If Pledgee assigns its interest in the Lease, whether
voluntary or through involuntary assignment or transfer such as bankruptcy or
foreclosure, such assignment will automatically and without further action or
notice to Pledgor cause an assignment of Pledgee's rights in this Agreement and
the collateral to the assignee and upon the assignee's assumption of Pledgee's
obligations under the Lease (including Pledgee's obligations with respect to
this Agreement and the Collateral), Pledgee will thereafter accrue no further
liability for the return of the Collateral and Pledgor will look solely to the
transferee or assignee for the return of the Collateral, but no such assignment
will release the assigning Pledgee from liability to Pledgor for acts, omissions
or breaches of this Agreement during the period the assignor was the Pledgee
hereunder. Upon request of either party, Pledgee and Pledgor agree to execute
such documents as may be reasonably necessary or desirable to reflect or better
confirm such assignment.
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11. FEES, TAXES
(a) Pledgor shall pay to Custodian the agreed upon Custodian's
fees and other compensation or reimbursement which may become due hereunder as
provided in a separate agreement.
(b) All items of income, gain, expense and loss recognized in the
Account shall be reported to the Internal Revenue Service and any applicable
state and local taxing authorities under the name and taxpayer identification
number of Pledgor.
12. NO ADDITIONAL DUTIES
The parties acknowledge and agree that Custodian shall not have any
additional duties other than those expressly provided herein. Custodian has not
reviewed the Pledge Agreement and shall have no responsibility or liability in
respect thereof. Notwithstanding any other provisions of this agreement, the
Custodian shall have no duty, obligation or liability to ensure compliance with
any regulation or statute applicable to Pledgor or Pledgee.
13. REPRESENTATIONS
(a) Each of the parties represents and warrants that (i) it is
duly incorporated or organized and is validly existing in good standing in its
jurisdiction of incorporation or organization, (ii) the execution, delivery and
performance of this Agreement and all documents and instruments to be delivered
hereunder have been duly authorized, (iii) the person executing this Agreement
on its behalf has been duly authorized to act on its behalf, (iv) this Agreement
constitutes its legal, valid, binding and enforceable agreement, subject to the
effect of bankruptcy, insolvency or similar laws affecting the rights of debtors
and creditors generally, and (v) its entry into this Agreement will not violate
its articles of incorporation (or other governing documents) or any agreement,
law, rule or regulation by which it is bound or by which any of its assets are
affected.
(b) Custodian represents and warrants that (i) it is and will
remain a "securities intermediary" within the meaning of such term in California
Commercial Code Section 8102(a)(14), (ii) it is and will remain a "securities
intermediary" within the meaning of such term in 31 C.F.R. Section 357.2
(Regulations Governing Book-Entry Treasury Bonds, Notes and Bills) and (iii) it
has received a copy of this Agreement signed by Pledgor and Pledgee.
(c) As between Custodian and Pledgor (i) the representations and
warranties of the Pledgor and Custodian, respectively, set forth in the
Custodian Agreement, (ii) the provisions of the Custodian Agreement providing
for indemnities, exculpations, protections and other privileges for the benefit
of Custodian and (iii) the provisions of the Custodian Agreement relating to the
services to be provided by Custodian with respect to proxies, notices, reports
and other communications relative to any Securities in the Account are hereby
incorporated by reference, mutatis mutandis, in respect of this Agreement and
the transactions herein contemplated as if set forth at length in this
Agreement; provided, however, that except as to matters expressly set forth in
(iii) above such incorporation by reference shall not impose or be deemed to
impose on Custodian any duties or responsibilities beyond those expressly set
forth in this Agreement; and provided further, however, in the event of any
conflict or inconsistency between this Agreement and the Custodian Agreement,
the provision that provides the greater protection to the Custodian shall
govern. Nothing in this Section 13(c), however, will apply to Pledgee in any
manner whatsoever, including after Pledgee gives Custodian a Notice of Exclusive
Control.
(d) Custodian represents and warrants to Pledgee that it is a
directly or indirectly wholly owned subsidiary of Deutsche Bank
Aktiengesellschaft.
14. NOTICES
Except as otherwise specifically provided for by this Agreement, all
notices and other communications between parties shall be in writing, effective
upon receipt, and shall be either hand delivered or mailed by first class mail,
postage prepaid, or sent by electronic facsimile or independent courier service
as follows:
N-5
to Pledgee: Opus Union Station, L.L.C.
000 - 000xx Xxxxxx XX
Xxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx, Vice President
Fax: (000) 000-0000
With a copy to Opus, L.L.C.
00000 Xxxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Attn: Legal Department
Fax: (000) 000-0000
to Pledgor: Xxxxxx.xxx, Inc.
0000 00xx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx XX 00000
Attn: General Counsel
Fax: (000) 000-0000
to Custodian: Bankers Trust Company of California, N.A.
0000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxxx
Fax: (000) 000-0000
Each party may change its address prospectively for purposes hereof by giving
notice to the other parties in accordance with the provisions of this paragraph.
15. SIGNATURES
Both Pledgor and Pledgee agree to provide Custodian with specimen
signatures of those persons authorized, from time to time, to give instructions
to Custodian under this Agreement and Custodian shall not incur any liability
with respect to any action taken in reliance upon any written instructions which
Custodian in good faith believes to be genuine and to have been signed by a duly
authorized person.
16. INSTRUCTIONS
Custodian shall be fully protected in acting on written instructions
from Pledgor and/or Pledgee as herein provided. All such instructions shall be
delivered to Custodian sufficiently in advance to accord to Custodian reasonable
time to act thereon.
17. CUSTODIAN AGREEMENT
(a) Regardless of any provision in any other agreement, the state
of California shall be deemed to be Custodian's location for the purposes of
this Agreement and the perfection and priority of creditor's security interest
in the Account.
(b) Custodian shall not be liable for any expenses, losses or
damages Pledgee, Pledgor or any third person may suffer or incur by reason of
any delay in obtaining Securities from any clearing agent, transfer agent.,
issuer, securities broker or dealer, or any other third party, or in obtaining
monies from the Pledgee, clearing agency or the Federal Reserve wire transfer
system.
(c) Custodian shall not be responsible for the title, validity or
genuineness of any Security or other Financial Asset.
N-6
(d) Subject to Section 18 of this Agreement, Custodian shall not
be liable for any expenses, losses or damages Pledgee, Pledgor or any third
person may suffer or incur by reason of any signature by an unauthorized person
on, or forgery or wrongful alteration of, a written instrument or inaccuracy,
incompleteness or falsity of data transmitted by computer tape or terminal or in
a written instrument if Custodian believes in good faith that such instrument,
instruction or data was for the account or benefit of Pledgee or Pledgor, as
applicable, or that the writing was signed by, or the data or computer tape was
transmitted by, an appropriately authorized person.
18. STANDARD OF CARE
Custodian shall be responsible for the performance of only such duties
as are set forth herein or contained in instructions given to the Custodian
which are not contrary to the provisions of this Agreement. The Custodian will
use reasonable care with respect to the safekeeping of property in the Account
and, except as otherwise expressly provided herein, in carrying out its
obligations under this Agreement. Custodian's responsibility hereunder for
physical loss or damage of property is limited to any loss occasioned directly
by the gross negligence or willful misconduct of an employee of Custodian or by
robbery, burglary or theft (while the Securities and Financial Assets are in
Custodian's physical possession), to the extent of the market value of such
Securities and Financial Assets at the date of the discovery of such loss if
such Securities or Financial Assets cannot be replaced by Custodian. In no
event, however, shall Custodian have any responsibility for consequential,
indirect, special or exemplary damages, whether or not it has notice thereof,
nor shall it have any responsibility or liability for the validity or
enforceability of any security interest or other interest of Pledgee or Pledgor
in the Securities.
19. FORCE MAJEURE
Custodian shall not be responsible or liable for any failure or delay
in performance of its obligations under this Agreement arising out of or caused,
directly or indirectly, by circumstances beyond its reasonable control,
including without limitation, acts of God, earthquakes, fires, floods, wars,
civil or military disturbance, sabotage, epidemics, riots, acts of terrorism,
loss or malfunctions of utilities or of computer (hardware or software) or
communications services, labor disputes, acts of civil or military authority, or
governmental, judicial or regulatory actions; provided, however, that Custodian
shall use its best efforts to resume performance as soon as reasonably possible.
20. INDEMNIFICATION
Except where Custodian has defaulted on its obligations hereunder, or
Custodian has been grossly negligent or has acted in bad faith, Pledgee and
Pledgor will release Custodian from and indemnify and hold Custodian harmless
from and against any and all losses, claims, damages, liabilities, costs and
expenses (including, without limitation, reasonable counsel fees, whether
arising in an action or proceeding between the parties hereto or otherwise) to
which Custodian may become subject, or which it may suffer or incur, arising out
of or based upon this Agreement or the actions contemplated hereby; provided,
however, that Pledgee's liability under this paragraph shall be limited to
matters arising out of Custodian's execution of Pledgee's instructions or
resulting from any actual or alleged breach of this Agreement by Pledgee. This
paragraph shall survive the termination of this Agreement.
21. BINDING EFFECT; ENTIRE AGREEMENT
(a) This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns; provided,
however, that except as set forth in Section 10 of this Agreement, this
Agreement shall not be assignable by any party to this Agreement without the
prior written consent of all parties.
(b) This Agreement represents the entire agreement of the parties
with respect to its subject matter and supersedes all prior oral or written
agreements, negotiations or proposals. Custodian shall not be bound by the terms
of the Pledge Agreement notwithstanding any reference thereto in this Agreement
and shall have no duty to inquire into Pledgor's or Pledgee's compliance
therewith Pledgee shall not be bound by the terms of the Custodian Agreement
notwithstanding any reference thereto in this Agreement, and shall have no duty
to inquire into Custodian's or Pledgor's compliance therewith. This Agreement
may not be modified or amended except by written
N-7
agreement executed by all parties, and the observance of any of the terms of
this Agreement may be waived only with prior written consent of all parties
hereto.
22. TERMINATION
This Agreement may be terminated jointly by Pledgor and Pledgee by an
instrument in writing delivered or mailed, postage prepaid, to Custodian, such
termination to take effect on the date of such delivery or receipt by Custodian;
provided, however, that until a successor custodian shall have been appointed
and Custodian shall have transferred the Securities and other Financial Assets
as provided be-low, this Agreement shall continue in full force and effect. This
Agreement may be terminated by Custodian by an instrument in writing delivered
or mailed, postage prepaid, to Pledgor and Pledgee, such termination to take
effect not sooner than thirty (30) days after the date of such delivery or
mailing; provided, however, that until a successor custodian shall have been
appointed and Custodian shall have transferred the Securities as provided below
to such successor custodian, this Agreement shall continue in full force and
effect. If such successor custodian is not appointed by Pledgee and Pledgor and
has not accepted the duties of Custodian hereunder within sixty (60) days of the
delivery by custodian of its notice of termination of this Agreement, Pledgee
acting alone shall designate such successor custodian, in writing delivered to
Pledgor and Pledgee, selected from among the ten largest commercial banks (in
terms of deposits) in California or in accordance with the directions of a final
order or judgment of a court of competent jurisdiction. If a successor custodian
shall be appointed as herein provided upon termination of this Agreement,
Custodian shall transfer all Securities and other Financial Assets to the
designated account of the successor custodian physically or in the appropriate
book-entry system, if feasible, and thereupon Custodian shall be discharged from
any and all further responsibility hereunder.
23. IMMUNITY; JURISDICTION
To the extent, if any, to which Pledgor or any of its respective
properties may be deemed to have or hereafter to acquire immunity, on the ground
of sovereignty or otherwise, from any judicial process or proceeding to enforce
this Agreement or to collect amounts due hereunder (including, without
limitation, attachment proceedings prior to judgment or in aid of execution) in
any jurisdiction, Pledgor hereby waives such immunity and agrees not to claim
the same. Any suit, action or proceeding arising out of this Agreement may be
instituted in any State or Federal court sitting in Los Angeles, California,
United States of America, and the Pledgor irrevocably submits to the exclusive
jurisdiction of any such court in any such suit, action or proceeding and
waives, to the fullest extent permitted by law, any objection which it may now
or hereafter have to the laying of venue of any such suit, action or proceeding
brought in such a court and any claim that such suit, action or proceeding was
brought in an inconvenient forum.
24. COUNTERPARTS
Three or more duplicate or counterpart originals of this Agreement may
be signed by the parties hereto, each of which together shall constitute one and
the same Agreement.
25. GOVERNING LAW
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED ACCORDING TO THE
INTERNAL LAWS OF THE STATE OF CALIFORNIA (EXCLUDING ANY CONFLICT OF LAWS
PRINCIPLES THEREOF) WHICH ARE APPLICABLE TO AGREEMENTS THAT ARE NEGOTIATED,
EXECUTED, DELIVERED AND TO BE PERFORMED ENTIRELY IN THE STATE OF CALIFORNIA.
Whenever possible, each provision of this Agreement shall be interpreted in such
manner as to be effective and valid under said laws, provided, however, if any
provision of this Agreement shall be construed to be prohibited or invalid under
applicable law, such provision shall be ineffective only to the extent of such
prohibition or invalidity without invalidating the remainder of such provision
or remaining provision in this Agreement.
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26. WAIVER OF TRIAL BY JURY.
THE PARTIES HERETO MUTUALLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN
ANY LITIGATION RELATING TO THIS AGREEMENT, INCLUDING ANY COUNTERCLAIM OR
CROSS-CLAIM THEREIN.
IN WITNESS WHEREOF, each of the parties has caused this instrument to
be executed by a duly authorized representative as of the date first above
written.
XXXXXX.XXX, INC.
a Delaware corporation
By
-----------------------------------------
Authorized Signature
Name:
-----------------------------------
Title:
----------------------------------
OPUS UNION STATION, L.L.C.,
a Delaware limited liability company
By
-----------------------------------------
Authorized Signature
Name:
-----------------------------------
Title:
----------------------------------
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.
a banking corporation organized under the
laws of the United States
By
------------------------------------------
Authorized Signature
Name:
-----------------------------------
Title:
----------------------------------
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EXHIBIT A
TO
SECURITY, CUSTODIAN AND CONTROL AGREEMENT
FINANCIAL ASSETS IN ACCOUNT
N-A-1.
EXHIBIT B
TO
SECURITY, CUSTODIAN AND CONTROL AGREEMENT
FORM OF PLEDGEE'S NOTICE OF EXCLUSIVE CONTROL
__________________, 199_
TO: [Name and address of Custodian]
________________________________
________________________________
________________________________
RE: NOTICE OF EXCLUSIVE CONTROL - ACCOUNT NO._____________
Dear Sirs:
Pursuant to the provisions of the Security, Custodian and Control
Agreement dated as of ______________, among the under signed as Pledgee,
_______________ as Pledgor and you as Custodian (the "Agreement"), the
undersigned hereby gives notice of the exercise of exclusive control over the
Account due to the occurrence and continuance of an Event of Default under the
Agreement. Subject to the provisions of the Agreement, you are hereby instructed
to transfer and credit on your books and records all Financial Assets in the
Account to an account in the name of the under signed as the Entitlement Holder.
In accordance with the Agreement, you are hereby notified to cease
complying with Entitlement Orders or other directions concerning the Account or
the Financial Assets therein originated by Pledgor or its representatives.
The undersigned hereby certifies that three (3) business days prior to
the date hereof it has given notice to Pledgee that it intends to excuse
remedies under the Agreement.
All capitalized terms used herein without definition have the same
meanings as are ascribed to such terms in the Agreement.
Very truly yours,
PLEDGEE:
____________________________________________
By ________________________________________
Name: _________________________________
Title: ________________________________
N-B-1.
EXHIBIT C
TO
SECURITY, CUSTODIAN AND CONTROL AGREEMENT
FORM OF PLEDGEE'S NOTICE OF ASSIGNMENT TO LENDER
_______________, 199__
TO: [Name and address of Custodian]
________________________________
________________________________
________________________________
RE: NOTICE OF ASSIGNMENT - ACCOUNT NO._____________
Dear Sirs:
Pursuant to Section 10 of the Security, Custodian and Control Agreement
dated as of ______________, among the undersigned as Pledgee, __________ as
Pledgor and you as Custodian (the "Agreement"), the undersigned hereby gives
notice it has assigned its rights under the Agreement to the ______________ (the
"Lender").
In accordance with the provisions of Section 10 of the Agreement, the
undersigned shall continue to exercise its rights under the Agreement as a
licensee of the Lender until such time as the Lender delivers to you a Lender
Notice of Exclusive Control.
All capitalized terms used herein without definition have the same
meanings as are ascribed to such terms the Agreement.
Very truly yours,
PLEDGEE:
____________________________________________
By ________________________________________
Name: _________________________________
Title: ________________________________
N-C-1.
EXHIBIT D
TO
SECURITY, CUSTODIAN AND CONTROL AGREEMENT
FORM OF LENDER'S NOTICE OF EXCLUSIVE CONTROL
___________________, 199__
TO: [Name and address of Custodian]
________________________________
________________________________
________________________________
RE: NOTICE OF EXCLUSIVE CONTROL - ACCOUNT NO._____________
Dear Sirs:
Pursuant to the provisions of the Security, Custodian and Control
Agreement dated as of _______________ among _______________ as Pledgee,
__________________ as Pledgor and you as Custodian (the "Agreement"), the
undersigned hereby gives notice of the exercise of exclusive control over the
Account. Subject to the provisions of the Agreement, you are hereby instructed
to transfer and credit on your books and records all Financial Assets in the
Account to an account in the name of the undersigned as the Entitlement Holder.
In accordance with the Agreement, you are hereby notified to cease
complying with Entitlement Orders or other directions concerning the Account or
the Financial Assets therein originated by Pledgor, Pledgee or their respective
representatives.
All capitalized terms used herein without definition have the same
meanings as are ascribed to such terms in the Agreement.
Very truly yours,
LENDER:
___________________________________________
By ________________________________________
Name: _________________________________
Title: ________________________________
2.
Opus Center @ Xxxxx Xxxxxxx - Xxxxxxxx 0
Xxxxxxx, XX
AMENDMENT 1 TO MULTI-TENANT OFFICE LEASE AGREEMENT
This Amendment 1 to Multi-Tenant Office Lease Agreement (this
"Amendment") is by and between OPUS UNION STATION II, L.L.C., a Delaware limited
liability company ("Landlord") and XXXXXX.XXX HOLDINGS, INC., a Delaware
corporation ("Tenant"), and is made and dated as of May 21, 2001.
Landlord's predecessor in interest, Opus Union Station, L.L.C., a
Delaware limited liability company ("Original Landlord"), and Tenant's
predecessor in interest, Xxxxxx.xxx, Inc., a Delaware corporation ("Original
Tenant"), are parties to that certain Multi-Tenant Office Lease Agreement (the
"Lease") having an Effective Date of August 23, 1999 and relating to those
certain Premises in the Building In Unit 4, Union Station Condominium, a
condominium recorded in Volume 15 of Condominiums, pages 37-45, according to the
amended and restated declaration thereof recorded under King County Recording
No. 9811171094 and the first amendment thereto recorded under King County
Recording No. 9901042189, and situated in the City of Seattle, Washington.
Original Landlord assigned its entire interest in the Lease to Landlord pursuant
to that certain Assignment and Assumption of Lease dated February 15, 2000,
recorded under King County Recording No. 20000218001379. Original Tenant
assigned its entire interest in the Lease to Tenant pursuant to that certain
Assignment and Assumption Agreement having an effective date of October 1, 1999.
Unless specifically defined in this Amendment, capitalized terms in this
Amendment have the same meaning as set forth in the Lease. Substantial
Completion of Floors 1 through 3 and 8 through 11 has been delayed because of
Tenant Delays and the parties wish hereby to provide for a takedown schedule for
the Floors comprising the Premises, both initially and after the initial
takedown, that is different from the sequence now contemplated in the Lease, the
parties agreeing that neither party has any claim against the other arising out
of delays (including Tenant Delays) in Substantial Completion of such Floors. In
addition, Landlord and Tenant have established the final Rentable Area of the
Premises and the Building and have agreed that April 10, 2001 is the
Commencement Date of the Lease, and wish to amend the Lease as contemplated by
Section 1.1 thereof, in connection with matters related thereto, and to confirm
certain other agreements of the parties in connection with the Lease.
NOW, THEREFORE, for and in consideration of the mutual covenants herein
contained, receipt and sufficiency of which is fully and unconditionally
acknowledged, Landlord and Tenant do hereby agree as follows:
1. The description of the Premises in Paragraph 1 of the Basic
Term is deleted in its entirety, and in its place is substituted the following:
1.
PREMISES: The entire Rentable Area, containing 253,769
square feet, and located on the 1st floor
through the 11th floor of the Opus Center
South Building on the Property. Each floor
of the Premises is depicted approximately as
shown on EXHIBIT C.
2. Paragraphs 6, 7 and 8 of the Basic Terms of the Lease are
deleted in their entireties, and in their place is substituted the following:
6. IMPROVEMENT ALLOWANCE: per square foot of Rentable Area in the
Premises. Tenant acknowledges that Landlord
has paid the Improvement Allowance for
Tenant's Improvements in certain portions of
the Premises and that the remaining
Improvement Allowance as of the date hereof
is
7. CURRENT PROPERTY Opus Northwest Management, L.L.C.
MANAGER/LOCAL CONTACT: 000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Property Manager
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
CURRENT RENT PAYMENT Opus Union Station II L.L.C.
ADDRESS: c/o Opus Northwest Management, L.L.C.
00000 Xxxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000
8. ADDRESS OF LANDLORD FOR
NOTICES: Opus Union Station II, L.L.C.
000 - 000xx Xxxxxx XX, Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
WITH A COPY TO: Opus, L.L.C.
00000 Xxxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Attn: Legal Department
AND TO: PROPERTY MANAGER AT THE ADDRESS
DESCRIBED IN SECTION 7 OF THE BASIC TERMS
2.
3. For purposes of Section 1.1 of the Lease, the Rentable Area of
the Building is 253,769 square feet, allocated as follows:
FLOOR(s) SQUARE FEET OF RENTABLE AREA PER FLOOR
----------------- --------------------------------------
Each of 10 and 11 24,057
9 24,185
Each of 8 and 7 24,226
6 24,227
5 24,407
4 25,039
3 24,794
2 20,632
1 13,919
The parties each waive any right under Section 1.1 of the Lease to
remeasure the Premises or to have a neutral architect resolve any dispute with
respect to the measurement of Rentable Area. As of the Commencement Date, the
Rentable Area of the Premises on which Tenant will be paying Basic Rent is
73,673 square feet, which consists of Floors 4, 5 and 6 in the Building.
4. The definition of "Commencement Date" set forth in EXHIBIT A
to the Lease is hereby deleted and replaced with the following: "Commencement
Date" means April 10, 2001.
5. The definition of "Rent Commencement Date" set forth in
EXHIBIT A to the Lease is hereby deleted and replaced with the following: "Rent
Commencement Date" means with respect to each floor of the Premises, the date
upon which Tenant is required to commence paying Basic Rent as established in
Paragraph 4 of the Basic Terms of Lease (as amended below).
6. Paragraph 4 of the Basic Terms of the Lease is deleted in its
entirety and the following is substituted in its place:
a. During the period between the Commencement Date and
September 30, 2001 (the "Rent Transition End Date"), Tenant will pay Basic Rent
as follows for Floors 4 through 6: at the rate of per square foot of
Rentable Area of Floor 4, and at the rate of per square foot of Rentable
Area for Floors 5 and 6, for a total aggregate Basic Rent of per month
through the Rent Transition End Date.
b. During the period commencing on the date a particular
Takedown Space is included in the Premises Rentable Area (see the amendment to
Section 17.1.14 of the Lease as set forth in Paragraph 10 below) and ending on
the Rent Transition End Date, Tenant will pay Basic Rent for each Takedown Space
at the following rates:
3.
TAKEDOWN SPACE MONTHLY BASIC RENT
--------------------- ------------------------------------
First Takedown Space
Second Takedown Space
Third Takedown Space
Fourth Takedown Space
Fifth Takedown Space for the period, if any, prior to
October 1, 2001
c. Commencing on October 1, 2001 through April 30, 2006
(the end of the 60th month of the Initial Term), the Annual Basic Rent will be
, payable in monthly installments of .
d. From and after May 11, 2006 (the beginning of the
61st month of the Initial Term) through the end of the Initial Term on April 30,
2011, the Annual Basic Rent per square Foot of Rentable Area will be as follows
ANNUAL BASIC RENT - PER SQUARE FOOT
FLOOR OF RENTABLE AREA
-------------------------- -----------------------------------
Each of Floors 1 through 6
Each of Floors 7 through 9
Each of Floors 10 and 11
7. Section 4.5 of the Lease is amended to read as follows:
4.5 COMMON AREA.
Landlord grants Tenant the non-exclusive right, together with
all other occupants of the Building and their agents, employees and
invitees, to use the Common Area during the Term, subject to all Laws;
provided, however, that at any time that Tenant occupies all of the
Rentable Area of the Building, it shall have the exclusive right to use
the Common Area on the interior of the Building except that (i)
Landlord shall have the right to use of the freight elevator in the
Building for janitorial and maintenance services to the Building during
the hours of 6 p.m. to 7 am on Business Days and at all hours on
non-Business Days and for general deliveries, and (ii) Landlord will
coordinate with Tenant to schedule any large general deliveries during
the hours of 7:00 a.m. to 6:00 p.m. on Business Days. Landlord, at
Landlord's sole and exclusive discretion, may (a) restrain unauthorized
persons from using the Common Area; (b) temporarily close any portion
of the Common Area (i) for repairs, improvements or Alterations, (ii)
to discourage unauthorized use, (iii) to prevent dedication or
prescriptive rights, or (iv) for any other reason Landlord deems
sufficient in Landlord's reasonable judgment; (c) change the shape and
size of the Common Area; (d) add, eliminate
4.
or change the location of any improvements located in the Common Area;
and (e) impose and revise Building Rules concerning use of the Common
Area, including, but not limited to, any parking facilities comprising
a portion of the Common Area. Landlord's rights tinder this Section 4.5
will be exercised at all times in a manner so as (a) not to prevent,
impair or materially alter access to the Premises, (b) to minimize the
interference with Tenant's business in the Premises and (c) to the
extent it is under Landlord's control, maintain reasonable ingress to
and ingress between the Premises and the Parking Garage.
8. Section 17.1.4 of the Lease is amended by deleting the first
sentence in its entirety, and substituting in its place the following:
Tenant acknowledges that Landlord is not a general contractor
and that Opus Northwest, L.L.C. acted as general contractor for the
Tenant's Improvements completed through April 4, 2001.
9. Section 17.1.9 of the Lease is hereby deleted.
10. Section 17.1.14 of the Lease is amended to read as follows:
17.1.14 DELIVERY IN SEGMENTS.
The parties agree that for each Takedown Space identified
below, all of the Rentable Area on the Floors of such Takedown Space
will be included in the Premises Rentable Area on the earlier of (a)
the corresponding Last Date for Takedown specified below, or (b) the
date of Substantial Completion of any Tenant's Improvements or
Subtenant's Improvements pursuant to this Section 17.1.14, provided,
however, that if any Substantial Completion of any Subtenant's
Improvements occurs before the Last Date for Takedown specified below,
then during the period between such Substantial Completion and the Last
Date for Takedown specified below, the Rentable Area on such Floor to
be included in the Premises Rentable Area shall be limited to the
Rentable Area of the Designated Takedown Space that is the subject of
such Approved Sublease:
FLOORS COMPRISING TAKEDOWN LAST DATE
TAKEDOWN SPACE SPACE FOR TAKEDOWN
-------------------- -------------------------- -----------------
First Takedown Space Floors 2 and 3 June 1, 2001
Second Takedown Space Floors 7 and 8 July 1, 2001
Third Takedown Space Floor 1 August 1, 2001
Fourth Takedown Space Floors 9 and 10 September 1, 2001
Fifth Takedown Space Floor 11 October 1, 2001
5.
"Takedown Space" means the First Takedown Space, the Second Takedown
Space, the Third Takedown Space, the Fourth Takedown Space, or the
Fifth Takedown Space, as the case may be. Notwithstanding any other
provision of this Lease, each Takedown Space will be added to the
Premises Rentable Area on the date set forth above, regardless of
whether it is Substantially Complete.
The Final Plans were established for Floors 4, 5, 6 and 7, and all
Tenant's improvements on those floors were Substantially Completed, in
accordance with the Final Plans, on April 4, 2001, subject to mutually
agreed Punch List items. Landlord's Improvements for the entire
Building have been completed subject to mutually agreed Punch List
items except for the completion of industry standard telephone and data
communications cables to be installed within the communications risers
serving all floors of the Building. All Punch List items have since
been completed. Landlord has no further obligation to construct
Tenant's Improvements on those floors or Landlord's Improvements
(except for the cabling described above) and Tenant has accepted
possession of those Floors. The one-year warranty for the Tenant's
Improvements on Floors 4, 5, 6 and 7 commenced on April 4, 2001.
Final Plans were also established for Floors 1, 2 and 3, but Tenant
directed Landlord to stop constructing the Tenant's Improvements on
those floors. Tenant acknowledges that as of April 4, 2001 Landlord
completed on Floors 1, 2 and 3 the Tenant's Improvements summarized on
SCHEDULE 1 attached hereto. The one-year warranty for the Tenant's
Improvements on Floors 1, 2 and 3 commenced on April 4, 2001. In
addition, Tenant did not deliver space plans to Landlord for Floors 8,
9, 10 or 11 and, accordingly, no Final Plans were established by
Landlord and Tenant for those floors. Tenant has indicated to Landlord
that it may wish to change the Final Plans for all or any of Floors 1,
2 and 3. Notwithstanding anything to the contrary in this Section
17.1.14, because the damage is covered by Landlord's builder's risk
insurance, Landlord will promptly repair (to the extent not already
repaired) all earthquake damage to the Landlord's Improvements and
Tenant's Improvements on Floors 1-7 existing on the Commencement Date.
Landlord will not undertake any further buildout of Tenant's
Improvements beyond those Substantially Completed as of April 4, 2001.
Any additional Tenant's Improvements will be built out by Tenant or, if
the space is to be occupied by a subtenant ("Subtenant") pursuant to a
sublease approved by Landlord (an "Approved Sublease"), then any
Tenant's Improvements in the space to be occupied by the Subtenant
("Subtenant's Improvements") may be built out by a Subtenant, pursuant
to the following procedures:
(1) Tenant may, by notice to Landlord, designate
any portion of Floors 1 through 3, inclusive, and/or 8 through
11, inclusive, to be built out (each, a "Designated Takedown
Space") by Tenant or a Subtenant.
6.
(2) Provided that there exists no Event of
Default under the Lease, the remaining Improvement Allowance
may be applied to all costs of the Tenant's Improvements or
Subtenant's Improvements (including architectural and
engineering design, construction fees and any costs payable to
Landlord under Section 8.2) and the costs of Tenant's or any
Subtenant's service providers as described in Section 17.1.3.
Landlord shall pay Tenant (or a Subtenant if Tenant has
assigned the Improvement Allowance to a Subtenant in an
Approved Sublease) the portion of the Improvement Allowance
attributable to such Designated Takedown Space in monthly
installments as costs are incurred in accordance with the
following paragraph (3).
(3) If the total cost of construction (as
evidenced by the construction contract approved by Landlord)
exceeds the Improvement Allowance allocable to the Designated
Takedown Space, then Tenant (or Subtenant) shall contribute
its proportionate share of the cost of construction on a
monthly basis and may submit monthly draw requests on the
Improvement Allowance for Landlord's proportionate share of
the costs incurred. Each draw request shall be accompanied by
(a) invoices for work performed or materials supplied for
which payment is being requested, (b) lien releases from
Tenant's (or Subtenant's) general contractor, subcontractors
and suppliers for the work and materials covered by prior draw
requests that were paid by Landlord. Landlord shall pay the
allowable portion of the Improvement Allowance to Tenant (or
Subtenant) by the 10th business day following receipt of a
complete and accurate draw request. Notwithstanding the
foregoing, Landlord shall not be required to pay the final
disbursement until Tenant or Subtenant has provided to
Landlord a certificate of occupancy or other evidence that the
City of Seattle has approved the occupancy of the Designated
Takedown Space. Landlord may withhold a disbursement if the
work performed is not in accordance with plans submitted to
and approved by Landlord, does not meet the requirements of
Article 8 of the Lease or if Tenant is in default under the
Lease.
(4) Provided Tenant is not in default under the
Lease, then after all Tenant's Improvements and all
Subtenant's Improvements have been completed in the entire
Building, Landlord will pay any unused portion of the
remaining Improvement Allowance to Tenant within 30 days after
receipt of evidence reasonably acceptable to Landlord that all
Tenant's Improvements and Subtenant's Improvements have been
completed in accordance with the Lease and (if applicable) the
Sublease and any agreement between Landlord and the Subtenant,
accepted by Tenant and any Subtenant, all contractors and
subcontractors for the Tenant's Improvements and the
Subtenant's Improvements have been paid and all lien rights of
contractors and subcontractors have been waived or released
pursuant to Section 8.4 of the Lease; and
7.
(5) Tenant or Subtenant will prepare and
Landlord will review and approve the plans for the Tenant's
Improvements or Subtenant's Improvements in accordance with:
(i) Section 17.1.5 of the Lease (except the last sentence
thereof and except that in subclause (c) of the second
sentence, the word "Landlord" shall be changed to read
"Tenant"); (ii) the first eight (8) sentences of Section
17.1.6 of the Lease (except that in subclauses (b) and (c) of
the second sentence and in the seventh sentence, the word
"Landlord" shall be changed to read "Tenant"); and (iii) the
first two sentences of Section 17.1.7 of the Lease. Each
Designated Takedown Space will be designed in accordance with
the foregoing provisions.
The Tenant's Improvements or Subtenant's Improvements
installed in the Building after April 4, 2001 will be considered
Alterations (notwithstanding the definition of "Alterations" in Exhibit
A to the Lease) and, except as provided above with respect to the
Improvement Allowance and submittal and approval of plans, shall be
constructed by Tenant or the Subtenant (if applicable) at such party's
expense in accordance with the provisions of Section 8.1 of the Lease
(except the second paragraph) and Sections 8.2, 8.3 (except the third
sentence), 8.4 and 8.5 of the Lease. Landlord will, at no cost or
additional liability to Landlord, if requested by Tenant, execute and
deliver to Tenant any permit application relating to the Tenant's
Improvements and/or the Subtenant's Improvements if Landlord's
signature thereon is necessary under applicable Laws. Tenant
acknowledges that it is directly liable to Landlord for liens arising
out of the Subtenant's Improvements to the extent required under
Section 8.4 of the Lease. Tenant may access any of the Takedown Space
(and/or any Subtenant may access any of the space to be occupied by it)
in order to design and build any additional Tenant's Improvements or
Subtenant's Improvements and prepare the space in accordance with the
second sentence of Section 1.2.4.
11. Tenant acknowledges that Tenant or Subtenant (as applicable)
shall be solely responsible for the design and installation of any Tenant's
Improvements and/or Subtenant's Improvements after April 4, 2001, and that
(except as specifically provided above) Landlord shall have no obligations
(including without limitation, any obligations under Sections 17.1.3, 17.1.5,
17.1.6, 17.1.7, 17.1.8, 17.1.9, 17.1.10, 17.1.11, or 17.1.12) with respect to
any Tenant's Improvements or Subtenant's Improvements not completed on such
date. Landlord will not charge any fee in connection with Tenant's Improvements
or Subtenant's Improvements installed after April 4, 2001, including under
Section 17.1.4, except to the extent permitted under Section 8.2.
12. Tenant acknowledges that it has received notice from Landlord
under Section 17.6 of the Lease that Landlord intends to sell the Unit, that
Tenant has elected pursuant to the terms of Section 17.6 not to pursue purchase
of the Unit on the terms offered by Landlord, and that Landlord has the right
under Section 17.6 of the Lease to sell the Unit to any other person, provided
the sale price is not more than ten percent (10%) below the sale price that
Landlord offered to Tenant. Tenant has not waived any other right of first
opportunity or first refusal.
8.
13. If, as of the last day of the 83rd full calendar month of the
Initial Term, there exists a sublease for any part of Floor 11 the term of which
expires (or upon exercise of an option may expire) after the end of the 96th
full calendar month of the Initial Term, then Tenant shall have no right to
exercise its termination right as of the end of the 96th full calendar month of
the Initial Term with respect to Floor 11. If, as of the last day of the 83rd
full calendar month of the Initial Term, there exists a sublease for any part of
Floor 10 the term of which expires (or upon exercise of an option may expire)
after the end of the 96th full calendar month of the Initial Term, then Tenant
shall have no right to exercise its termination right as of the end of the 96th
full calendar month of the Initial Term with respect to Floor 10, but such night
will be exercisable with respect to Floor 11 except as set forth in the
immediately preceding sentence. If, as of the last day of the 95th full calendar
month of the Initial Term, there exists a sublease for any part of Floor 11 the
term of which expires (or upon exercise of an option may expire) after the end
of the 108th full calendar month of the Initial Term, then Tenant shall have no
right to exercise its terminate right as of the end of the 108th full calendar
month of the Initial Term with respect to Floor 11. If, as of the last day of
the 95th full calendar month of the Initial Term, there exists a sublease for
any part of Floor 10 the term of which expires (or upon exercise of an option
may expire) after the end of the 108th full calendar month of the Initial Term,
then Tenant shall have no right to exercise its termination right as of the end
of the 108th full calendar month of the Initial Term with respect to Floor 10,
but such right will be exercisable with respect to Floor 11 except as set forth
in the immediately preceding sentence.
13. Except as amended herein, the Lease is affirmed by the parties
and continues in full force and effect in accordance with its terms.
LANDLORD:
OPUS UNION STATION II, L.L.C.,
a Delaware limited liability company
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Xxxxxx X. Xxxxxxx, Vice President
TENANT:
XXXXXX.XXX HOLDINGS, INC.,
a Delaware corporation
By: /s/ Xxxxx Xxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxx
Its: Director
9.
RATIFICATION
XXXXXX.XXX, INC., a Delaware corporation ("Original Tenant") hereby
agrees as follows:
1. Original Tenant, as tenant, and Opus Union Station, L.L.C.
("Original Landlord"), as landlord, entered into that certain Multi-Tenant
Office Lease Agreement, Building 4 dated as of August 23, 1999 (as the same has
been and may hereafter be assigned, amended or modified from time to time, the
"Lease"). Capitalized terms not otherwise defined herein shall have the meanings
given in the Lease.
2. In connection with Section 17.18.4 of the Lease: (a) Original
Tenant and Original Landlord entered into that certain Security Deposit Pledge
Agreement dated as of September 13, 1999 (the "Pledge Agreement"); and (b)
Original Tenant, Original Landlord and Bankers Trust Company of California, N.A.
("Custodian") entered into that certain Security, Custodian and Control
Agreement dated as of September 13, 1999 (the "Control Agreement").
3. By an Assignment and Assumption Agreement dated as of October
1, 1999 (the "Lease Assignment"), Original Tenant assigned its entire interest
in the Lease to Xxxxxx.xxx Holdings, Inc. ("Tenant") and Tenant assumed all
obligations of Original Tenant under the Lease. Original Tenant did not assign
its rights in the collateral secured by the Pledge Agreement and subject to the
Control Agreement, nor its rights and obligations under said agreements.
Further, the Lease Assignment did not release or relieve Original Tenant from
any obligations under the Lease and Original Tenant remains liable thereunder as
principal and not as surety.
4. By an Assignment and Assumption of Lease dated as of February
16, 2000, Original Landlord assigned and transferred to Opus Union Station II,
LLC ("Landlord") all of Original Landlord's right, title and interest in the
Lease, together with all guaranties and other security pledged with respect
thereto and Landlord assumed all obligations of Original Landlord under the
Lease.
5. Original Tenant hereby ratifies and confirms that: (a) it has
consented and agreed to all amendments to the Lease including this Amendment;
and (b) its obligations under the Pledge Agreement and Control Agreement remain
in full force and effect and secure the obligations of Original Tenant and, by
the Lease Assignment, the Tenant, under the Lease.
ORIGINAL TENANT:
XXXXXX.XXX, INC.,
a Delaware corporation
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxx
Its: Director
10.
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
I certify that I know or have satisfactory evidence that XXXXXX X.
XXXXXXX is the person who appeared before me, and said person acknowledged that
he signed this instrument, on oath stated that he was authorized to execute the
instrument and acknowledged it as the Vice President of OPUS UNION STATION II,
L.L.C., a Delaware limited liability company, to be the free and voluntary act
of such party for the uses and purposes mentioned in the instrument.
Dated: May 29 , 2001.
/s/ Xxxxx Xxxxx
---------------------------------------
(Signature of Notary Public)
Xxxxx Xxxxx
---------------------------------------
(Print Name of Notary Public)
My Appointment Expires: 6/15/2002
11.
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
I certify that I know or have satisfactory evidence that Xxxxx Xxxxxxx
is the person who appeared before me, and said person acknowledged that the
signed this instrument, on oath stated that he was authorized to execute the
instrument and acknowledged it as the President of XXXXXX.XXX HOLDINGS, INC., a
Delaware corporation, to be the free and voluntary act of such party for the
uses and purposes mentioned in the instrument.
Dated: May 22 , 2001.
/s/ Xxxxxx X. Xxxxxx
---------------------------------------
(Signature of Notary Public)
Xxxxxx X. Xxxxxx
---------------------------------------
(Print Name of Notary Public)
My Appointment Expires: 0-0-00
XXXXX XX XXXXXXXXXX )
) ss.
COUNTY OF KING )
I certify that I know or have satisfactory evidence that Xxxxx Xxxxxxx
is the person who appeared before me, and said person acknowledged that he
signed this instrument, on oath stated that he was authorized to execute the
instrument and acknowledged it as the President of XXXXXX.XXX INC., a Delaware
corporation, to be the free and voluntary act of such party for the uses and
purposes mentioned in the instrument.
Dated: May 22 , 2001.
/s/ Xxxxxx X. Xxxxxx
---------------------------------------
(Signature of Notary Public)
Xxxxxx X. Xxxxxx
---------------------------------------
(Print Name of Notary Public)
My Appointment Expires: 3-9-03
12.
SCHEDULE 1
TO
AMENDMENT 1 TO MULTI-TENANT OFFICE LEASE AGREEMENT
SUMMARY OF TENANT'S IMPROVEMENTS
COMPLETED ON THE COMMENCEMENT DATE
FLOOR 1
DIVISION 3: Concrete
Demolition of floor slabs for grease duct.
Support steel for grease duct openings.
Trench and infill for kitchen/servery utilities.
Cut curbs for modified doors.
DIVISION 5: Metals
Kitchen wall reinforcing steel.
DIVISION 6: Wood
Misc. carpentry for mail room, dining, corridors.
Kitchen rough carpentry for doors, walls in dining room, and servery.
DIVISION 7: Protection
Fireproofing for grease shaft support steel and misc. patching of
fireproofing.
Protect finishes.
DIVISION 8: Doors and Windows
Install hollow metal frames, wood doors and hardware in corridors, mail
room, kitchen office.
Purchase doors, frames for corridors, mail room, kitchen office.
Purchase door hardware for corridors, mail room, kitchen office.
Modify exterior doors for security access and eliminate exterior doors.
DIVISION 9: Finishes
All GWB system materials studs, drywall, taping compound, tape,
insulation purchased and stocked.
Complete all metal framing for walls, soffits, columns, features,
perimeter walls; begin GWB soffits; perimeter partially taped; finish
corridors, kitchen office, mail room exterior.
Additional Venetian Plaster at lobby alcove walls.
Purchase material for exhaust duct rated GWB shaft for Levels 2 through
roof.
Temporary heat for drying taping compound and paint.
Repair GWB trade damage.
Raise perimeter framing for specified ceiling levels at building
perimeter.
Frame transitions, corridors, lobby area.
Acoustical ceilings corridors.
Additional stone flooring for lobby alcove.
Purchase and store Altro flooring for kitchen/servery/dining areas.
Rubber base for corridors
Floor preparation for corridors, mail room, kitchen office floors.
Carpet corridors, lobby area.
Paint corridors, kitchen office, and exterior of mailroom.
Paint lobby alcove ceilings, transition areas.
DIVISION 10: Specialties
Fire extinguishers for Amazon layout.
Construction clean corridors, office, lobby alcove.
Final clean corridors, kitchen office, lobby alcove.
Load materials: carpet, special flooring.
Corner guards in corridors.
DIVISION 11: Equipment
Supply kitchen and servery, equipment: walk-in cooler at Amazon,
exhaust hoods at site, misc.
servery equipment at supplier, restocking and return fees, equipment
planning and coordination.
DIVISION 15: Mechanical
Piping and plumbing for kitchen, servery espresso, including bus tunnel
work for all penetrating systems complete.
Sprinkler system complete to ceiling level.
HVAC duct work for corridors, mail room, lobby expansion, kitchen
office, including mounting of VAV boxes and controls; several VAV boxes
stocked but not installed.
Diffusers and sound boots purchased and stocked.
Grease hood exhaust ductwork horizontal runs complete and capped from
hood locations to exhaust shaft.
Rated duct insulation installed at hard ceilings.
Overtime to stock VAV boxes and ductwork.
Louvers for exhaust hoods, make-up air, dryers, and condensers.
3 extra stocked VAV boxes (design changes)
DIVISION 16: Electrical
Kitchen, dining, and servery power, HVAC and lighting rough-in
complete; panels installed.
Additional lighting in main lobby for alcove.
Special support suspension system for conduit runs.
Co-ordinate electrical in ceilings with other ceiling components.
Provide infrastructure for security access system and Controls for
exterior doors, dining rooms, elevator lobbies, mail room and west
stair.
Engineer, design, supply, connect, and test security access system.
FLOOR 2
DIVISION 6: Xxxxx
Rough carpentry for doors and openings in full height walls.
Layout for walls complete.
DIVISION 7: Protection
Patch fireproofing.
Protect finishes from trade damage at floors, walls, ceilings.
Weather protection at manlift openings.
2.
DIVISION 8: Doors and Windows
Install IDF room door and frame.
Supply IDF room door and frame.
Supply IDF room door hardware.
DIVISION 9: Finishes
All GWB materials studs, drywall, taping compound, tape, insulation
purchased and stocked.
Framing for full height walls at common rooms, core furring, conference
rooms, shower/locker rooms, columns complete.
Install GWB system complete in main IDF room, shower/ locker rooms.
Temporary heat for drying taping compound and paint.
Repair drywall at main IDF room, shower/locker rooms (design change).
Purchase and stock ceramic tile for locker/shower rooms.
IDF acoustic ceiling.
Special flooring for IDF
Rubber base for IDF.
Purchase and stock sheet vinyl, special elevator lobby flooring.
Prepare floors in IDF room, shower/locker rooms, and elevator lobby.
Purchase and store carpet.
Paint IDF room, shower/locker rooms.
DIVISION 10: Specialties
Purchase fire extinguishers and cabinets.
Construction clean.
Final clean for IDF room.
Load carpet, glass, door frames, and doors into building.
Purchase and stock toilet partitions for locker/shower rooms.
DIVISION 15: Mechanical
Piping, plumbing complete to coffee rooms, shower/locker rooms.
Main IDF room cooling, condensate system complete.
Complete sprinkler system to ceiling level.
HVAC system coordinated, VAV boxes and controls purchased and
installed.
Majority of HVAC ductwork installed, not insulated.
Diffusers and sound boots purchased and stored.
Unit heaters for main mechanical rooms purchased and stocked.
Overtime for HVAC material loading and installation to maintain ceiling
grid proposed installation schedule.
DIVISION 16:
Rough-in electrical power, HVAC, and lighting ceilings, perimeter,
showers/locker rooms, full-height walls in common rooms, core furring.
Purchase and store electrical equipment, lighting fixtures and trim.
Provide special suspension system for main conduit runs.
Coordinate electrical components in ceiling with other elements.
Provide infrastructure for security access system.
Design, engineer, supply components, connect devices and panels, and
test security access system.
Added transformer and panels installed.
3.
FLOOR 3
DIVISION 6: Xxxxx
Rough carpentry for doors and openings full height walls.
Layout for walls complete.
DIVISION 7: Protection
Patch fireproofing.
Protect finishes from trade damage at floors, walls, and ceilings.
Weather protection at manlift openings.
DIVISION 8: Doors and Windows
Install IDF room door and frame.
Supply IDF room door and frame.
Supply IDF room door hardware.
DIVISION 9: Finishes
All GWB system materials studs, drywall, taping compound, tape,
insulation purchased and stocked.
Complete framing for full height walls at common rooms, core furring,
conference rooms, columns, perimeter, elevator lobby.
Perimeter walls taped.
Install GWB system complete in IDF room.
Temporary heat for drying taping compound and paint.
Repair drywall at main IDF room.
Install IDF acoustic ceiling.
Partial ACT grid in elevator lobby.
Purchase and stock grid materials and wire mesh panels for special
ceilings.
Special flooring for IDF.
Rubber base for IDF.
Prepare floors in IDF room and elevator lobby.
Purchase and stock sheet vinyl, special elevator lobby flooring.
Purchase and stock carpet.
Paint IDF room.
DIVISION 10: Specialities
Purchase fire extinguishers and cabinets.
Construction clean.
Final clean for IDF room.
Load carpet, glass, door frames, and doors into buildings.
DIVISION 15: Mechanical
Piping and plumbing rough-in complete coffee rooms.
Complete sprinkler system to ceiling level.
HVAC system coordinated; ductwork installed, insulated to flex, VAV
boxes and controls purchased and installed.
Diffusers and sound boots purchased and stored.
Overtime for HVAC material loading and installation to maintain ceiling
grid proposed installation schedule.
4.
Unit heater for main mechanical room stocked.
4 extra VAV boxes (design change-boxes stored on 2nd floor)
DIVISION 16:
Rough-in electrical power, HVAC, and lighting ceilings, perimeter,
showers/locker rooms, full-height walls in common rooms, core furring.
Purchase and store electrical equipment, lighting fixtures and trim.
Add level three lighting controls.
Provide special suspension system for main conduit runs.
Cores for floor penetrations complete.
Coordinate electrical components in ceiling with other elements.
Provide infrastructure for security access system.
Design, engineer, supply components, connect devices and panels, and
test security access system.
5.
EXHIBIT B TO SUBLEASE
[FLOOR PLANS SHOWING SUBLEASED PREMISES]
EXHIBIT C TO SUBLEASE
PARKING AGREEMENT
Recorded at the Request of
and after Recording Return to:
Xxxxxxx X. Xxxxxxx. X.X.
Xxxxxxx Brain PLLC
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Abbreviated legal description: Base Unit and Xxxx 0, Xxxxx Xxxxxxx, a
condominium, Vol. 150, Pgs. 37-45 (amended and restated by No. 9811171094)
Additional legal description(s) are on pages 10 and 11 of this document.
Assessor's Tax Parcel No.: 880970-0050-05
FILED FOR RECORD Xxxx 0
XX XXX XXXXXXX XX Xxxx Xxxxxx @ Union Station
TRANSNATION TITLE Seattle, WA
INSURANCE CO
PARKING AGREEMENT AND COVENANT
(UNION STATION PARKING GARAGE)
This Parking Agreement and Covenant (the "Agreement") is made as of
February 15th, 2000, by and between UNION STATION ASSOCIATES, LLC, a Washington
limited liability company, together with its successors and assigns in ownership
of the Base Unit (as defined below) (collectively, "USA LLC") and OPUS UNION
STATION II, L.L.C., together with its successors and assigns in ownership of the
Office Project (as defined below) (collectively "Unit Owner").
RECITALS:
A. USA LLC is the declarant of Union Station, A Condominium (the
"Condominium"), created by the Declaration and Covenants, Conditions,
Restrictions and Reservations for Union Stations, A Condominium recorded under
King County Auditor's No. 9807280839, and Survey Map and Plans recorded under
King County Auditor's No. 9807280838, Vol. 150, Pg. 37-45.
B. USA LLC and Unit Owner are parties to a Real Property Purchase
and Sale Agreement dated as of May 28, 1999 as amended and assigned to date,
pursuant to which USA LLC has agreed to sell Unit 4 of the Condominium legally
described in Exhibit A attached hereto (the "Unit") to Unit Owner. Unit Owner
intends to construct within such Unit an office building containing
approximately 256,886 rentable square feet (the "Office Project").
C. USA LLC is also the owner of the Base Unit of the Condominium
legally described in Exhibit B attached hereto (the "Base Unit") within which
USA LLC has constructed, a parking garage containing two (2) parking levels and
approximately 425 parking stalls (the "Garage Project - Phase I"). The Office
Project is to be located on top of the Base
1.
Unit. USA LLC intends to construct a second garage (the "Garage Project-Phase
II") which will be adjacent to and south of the Garage Project-Phase I and will
include approximately 675 parking stalls. The Garage Project-Phase I and, when
completed, the Garage Project-Phase II, are collectively referred to as the
"Garage Project".
D. In connection with the Unit Owner's development, ownership and
operation of the Office Project within the Unit, USA LLC has agreed to make
available for the benefit of the Office Project (including any future building
built from time to time on or about the Unit) up to 257 parking spaces in the
Garage Project.
E. USA LLC and Unit Owner desire to set forth herein their
agreement with respect to such parking rights and the terms and conditions for
the use and enjoyment thereof
NOW, THEREFORE, the parties agree as follows:
1. Parking Rights in Garage Project. Commencing upon the date
upon which the Office Project within the Unit is substantially complete and Unit
Owner receives a certificate of occupancy (temporary or permanent) for the
Office Project (the "Effective Date"), and continuing perpetually for so long as
and during any period in which a building is located on or about the Unit, USA
LLC agrees and covenants to make available in the Garage Project for the benefit
of the Office Project up to 257 self park, individual parking stalls and Unit
Owner agrees to lease such stalls from USA LLC on the terms and conditions set
forth herein. The parties acknowledge that Unit Owner shall make such parking
stalls available to the tenants and other users and occupants of the Office
Project.
2. Right to Park. On or before the 20th day of each calendar
month commencing with the month in which the Office Project is initially
occupied by the Unit Owner or its tenants, Unit Owner shall advise USA LLC (or
the operator of the Garage Project designated by USA LLC) in writing of the
number of parking stalls the Office Project will require for the next succeeding
calendar month, not greater than 257 stalls. The number of stalls so requested
by the Office Project shall be the number of stalls leased by the Unit Owner for
such succeeding month (the "Leased Stalls"). If in any month the Unit Owner does
not request a different number of parking stalls required for the next
succeeding month, the most recent request shall continue to apply.
The parking stalls so requested by Unit Owner shall be made available
to Unit Owner for the month in which the request applies at the prevailing
market rate then being charged to persons (other than Central Puget Sound
Regional Transit Authority and/or its successors and assigns) for monthly
parking at the Garage Project. The rate shall be determined based upon the rates
in effect as of the first day of the month, and any rate increases during such
month shall not be effective until the first day of the next month. USA LLC
agrees to provide Unit Owner with at least thirty (30) days prior written notice
of any increases in the monthly parking rates at the Garage Project.
On or before the first day of each month, Unit Owner shall make payment
to USA LLC (or the operator of the Garage Project designated by USA LLC) for the
Leased Stalls for such
2.
month. Payments not made within five (5) days of the date when due shall bear
interest at the rate of twelve percent (12%) per annum.
3. Maintenance of Garage Project. USA LLC agrees to continuously
maintain and operate the Garage Project in a first class manner and state of
repair, consistent with other similar multi level parking facilities in Class A
high-rise buildings in the downtown Seattle area. USA LLC may from time to time
temporarily close portions of the Garage Project for maintenance and repair
purposes, but USA LLC will use all reasonable efforts to conduct routine repairs
and maintenance so as to not unreasonably disrupt the Unit Owner's use of its
Leased Stalls. In the event of major damage or casualty to the Base Unit which
prohibits the use of the Leased Stalls as provided herein, USA LLC will use all
reasonable efforts to promptly repair such damage or casualty and restore the
Base Unit improvements to substantially the same condition (including
appearance, configuration, layout and structural aspects) as existed immediately
prior to such damage or destruction, at USA LLC's sole cost and expense.
USA LLC agrees and covenants that for so long as the Condominium
exists, (i) the Garage Project shall be operated in a manner reflecting the fact
that a primary purpose of the Parking Garage during Parking Hours (as defined in
the Addendum to this Agreement) shall be to service the parking needs of the
tenants and other users and occupants of Condominium outside the Base Unit, and
(ii) access will be available to the Garage Project as required for tenants and
employees of the Office Project identified or otherwise designated by Unit
Owner. USA LLC and the Unit Owner shall cooperate in good faith to implement an
operating program that allows such continuous access, through access cards or
similar arrangements. USA LLC shall have the right to close the Garage Project
to the public (subject, however, to the access rights of Unit Owner's tenants
and occupants, as established by any separate agreement with USA LLC) from time
to time (evenings, weekends, holidays) in accordance with the Garage operating
program established by USA LLC. USA LLC may adopt reasonable nondiscriminatory
rules for the Garage Project.
4. Default. In the event Unit Owner fails to make a payment when
due hereunder or to perform any other obligation hereunder and such failure
continues for a period of thirty (30) days after written notice of such failure
from USA LLC (which, with respect to nonmonetary failures, shall also specify
the steps required to cure the failure), Unit Owner shall be in default
hereunder, provided that if any non-monetary default requires more than thirty
(30) days to cure, Unit Owner shall not be deemed to be in default if it
commences the cure within such period and diligently pursues such cure to
completion. Upon such default, USA LLC may seek any and all remedies available
by law or in equity, including an action for damages to collect any unpaid
amounts plus interest thereon. Notwithstanding the foregoing, USA LLC may not
terminate this Agreement due to such default unless, after the initial thirty
(30) day cure period has expired, USA LLC gives Unit Owner a second ten (10) day
written notice and cure period, which notice must specify that the Agreement
will terminate on the expiration of such ten (10) day period unless the default
is cured within such ten (10) day period.
In the event USA LLC fails to perform any obligation hereunder and such
failure continues for a period of thirty (30) days after written notice of such
failure from Unit Owner (which notice shall specify the steps required to cure
such failure), USA LLC shall be in default hereunder, provided that if any
non-monetary default requires more than thirty (30) days to cure,
3.
USA LLC shall not be deemed to be in default if it commences the cure within
such period and diligently pursues such cure to completion. Upon such default,
Unit Owner shall be entitled to any and all remedies available in law or in
equity, including an injunction or specific performance in order to obtain the
benefit of the parking rights set forth in or arising out of this Agreement.
5. Protection of Lenders. The notices required to be given to
Unit Owner pursuant to Section 4 above shall not be deemed to be effective
unless such notice is also given to any lender who has a security interest in
the Office Project and who has given USA LLC written notice of its right to
receive such notices and the address to which such notices should be sent. Any
lender who has a security interest in the Office Project and who has provided
such notice to USA LLC shall also be authorized to cure any nonpayment or other
default within the applicable cure period, and USA LLC agrees to accept such
payment or other cure directly from such lender. Notices required to be given to
USA LLC by any lender may be sent to the address for notices set forth in
Section 12 hereof.
6. Binding Effect. The covenants, licenses, leases and/or
agreements set forth in the Agreement shall be continuing covenants running with
the land. Such covenants shall be binding upon, and inure for the benefit of the
parties hereto and their respective successors and assigns. Notwithstanding the
foregoing, a Unit Owner of the Office Project shall not have personal liability
hereunder except with respect to the obligations which have accrued during such
time as such Unit Owner owns the Office Project.
7. Term. Unless this Agreement is earlier terminated by written
agreement of USA LLC and Unit Owner or as a result of a default of party
hereunder, the term of this Agreement shall continue until the Office Project is
voluntarily demolished or is substantially damaged or destroyed under
circumstances in which the then Unit Owner of the Office Project does not
commence to repair or rebuild such building within two (2) years of such damage
or destruction. Nonuse of the full parking rights granted hereunder by the Unit
Owner shall not constitute a termination or abandonment of this Agreement or the
rights of the Unit Owner hereunder.
The two (2) year period referred to above shall be subject to and
extended by any period of delay due to Force Majeure. Force Majeure shall mean,
strikes, riots, acts of God, delay caused by the failure of a governmental
agency to issue a building or occupancy permit despite diligent pursuit thereof,
shortages of labor or materials because of priority or similar regulations or
order of any governmental or regulatory body, war, governmental laws,
regulations or restrictions or any other causes of any kind whatsoever which are
beyond the reasonable control of said party; provided, however, lack of funds or
inability to obtain financing shall not be an event of force majeure.
8. Estoppel Certificate. Either party shall, within fifteen (15)
days of a request from the other party, execute, acknowledge and deliver to the
requesting party or its designee a written statement confirming the status of
matters under this Agreement, including the number of parking stalls then
currently designated by the Unit Owner as provided in Section 2 above, whether
all payments are current, whether any party is in default under this Agreement,
and such other matters as the requesting party may reasonably request. It is
intended that any such
4.
statement may be relied upon by lenders providing financing with respect to any
of the properties benefited or burdened by this Agreement.
9. Recording. At the request of either party, this Agreement
shall be recorded in the real property records of King County, Washington.
10. Subordination of Lenders. USA LLC shall cause any mortgage,
deed of trust, sale and leaseback, or other security instrument now or hereafter
placed upon the Garage Project, or any portion thereof, by USA LLC, its
successors or assigns, including any amendments, replacements, renewals and
extensions thereof, to be subordinated to this Agreement and any Addendum
hereto. In furtherance thereof, USA LLC agrees to cause its existing mortgagee,
deed of trust beneficiary or sale and lease-back lessor, as the case may be
(each, a "Mortgagee"), to execute and deliver to Unit Owner an instrument of
subordination in form and content reasonably acceptable to Unit Owner, within
thirty (30) days of the date of this Agreement.
11. Meetings with Operator. USA LLC shall cause the management of
its designated operator of the Garage Project to meet with Unit Owner upon
reasonable request during normal business hours.
12. Non-Exclusive Rights. The parking rights granted hereunder
will be applicable to all available parking stalls in the Garage Project as no
stalls will be specifically reserved for the Leased Stalls. In addition, the
rights granted to the Unit Owner hereunder shall not limit the rights of Unit
Owner or its tenants, employees. invitees, and agents from parking in the Garage
Project on the same terms and conditions as parking is made available to the
public generally (including hourly or daily parking) as then managed by USA LLC
or its designated operator.
13. Costs and Attorneys' Fees. The parties hereto agree that in
the event it becomes necessary for any party to defend or institute legal
proceedings as a result of the failure of either party to comply with the terms,
covenants, agreements and/or conditions of this Agreement, it is understood and
agreed that the prevailing party in such litigation shall be entitled to be
reimbursed for all costs incurred or expended in connection therewith,
including, but not limited to, reasonable attorney's fees (including paralegals'
and consultants' fees and fees for appeals or any bankruptcy proceeding) and
court costs.
14. Notices. Any and all notices or other communications required
to permitted by this Agreement or by law to be delivered to, served on or given
to either party to this Agreement by the other party to this Agreement, shall be
in writing and shall be deemed properly delivered, given or served when
personally delivered to such party, or in lieu of personal services, when
telecopied or when mailed by United States mail, express, certified or
registered, postage prepaid, or by a nationally recognized overnight delivery
service, charges prepaid, addresses as follows:
If to USA LLC: Union Station Associates LLC
0000 Xxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
Facsimile No. (000) 000-0000
5.
With a copy to: Xxxx, Xxxxxxx & Cleveland, PLLC
0000 Xxxxx Xxx., Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attn: Xxxxx X. Xxxxxx
Facsimile No. (000) 000-0000
If to Unit Owner: Opus Union Station II, L.L.C.
000 - 000xx Xxxxxx XX
Xxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx, Vice President
Facsimile No. (000) 000-0000
With a copy to: Xxxxxxx Brain PLLC
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attn: Xxxxxxx X. Xxxxxxx, P.S.
Facsimile No. (000) 000-0000
And to: Opus, L.L.C.
00000 Xxxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Attn: Legal Department
Facsimile: (000) 000-0000
and all notices so mailed shall be deemed received on the date which is 24 hours
after delivery to the overnight delivery service by the sender, or if placed in
the United States mails, on the date of the return receipt or, if delivery of
such United States mail is refused or cannot be accomplished, 48 hours after
deposit in the United States mails. Either party may change its address for the
purpose of this Section by giving ten (10) days advance written notice of such
change to the other party in the manner provided in this Section.
15. Amendment. This Agreement may not be modified, amended or
terminated without the prior written approval of USA LLC and Unit Owner,
provided that additional terms may be contained in an Addendum to this
Agreement; and provided further the number of Leased Stalls and the rates
charged to Unit Owners for the Leased Stalls may be set forth, from time to
time, on a Schedule to this Agreement. Neither such Addendums nor such Schedule
shall be recorded.
16. Waiver. No waiver or any of the provisions of this Agreement
shall be effective unless it is in writing, signed by the party against whom it
is asserted and any such written waiver shall only be applicable to the specific
instances to which it relates and shall not be deemed to be a continuing or
future waiver.
6.
17. Construction. The captions and section headings contained in
this Agreement are for convenience and reference only and in no way define,
describe, extend or limit the scope or intent of this Agreement, nor the intent
of any provision hereof. All pronouns and any variations thereof shall be deemed
to refer to the masculine, feminine, neuter, singular or plural as the
identification of the person or persons may require. "Person" shall mean an
individual, firm, association, corporation, limited liability company, trust or
any other form of business or legal entity. Whenever the adverbs "herein",
"hereunder", "hereto, "hereby", "hereinafter", etc., are used in this Agreement,
they shall mean and refer to this Agreement in its entirety and not to any
specific section or paragraph hereof. Whenever the word "including" is used in
this Agreement, it shall mean "including, but not limited to".
18. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Washington.
IN WITNESS WHEREOF, this Parking Agreement and Covenant is executed by
the parties, intended to be legally bound, as of the date first written above.
USA LLC UNION STATION ASSOCIATES, LLC,
a Washington limited liability company
By NSD, L.L.C., Manager
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxx
Title: Member
UNIT OWNER OPUS UNION STATION II, L.L.C.,
a Delaware limited liability company
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
7.
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
THIS IS TO CERTIFY that on this 15th day of February, 2000, before me,
the undersigned, a notary public in and for the state of Washington, duly
commissioned and sworn, personally appeared XXXXX XXXXXXX, to me known to be a
Member of NSD, L.L.C., a Washington limited liability company, to me known to be
the Manager of UNION STATION ASSOCIATES, LLC, the Washington limited liability
company that executed the within and foregoing instrument, and acknowledged the
said instrument to be the free and voluntary act and deed of each limited
liability company for the uses and therein mentioned, and on oath stated that
said individual was authorized to execute said instrument.
WITNESS my hand and official seal hereto affixed this 15th day of
February, 2000.
/s/ Xxxx X. Xxxxxxxx
---------------------------------------
(Signature of Notary)
Xxxx X. Xxxxxxxx
---------------------------------------
(Print or stamp name of Notary)
NOTARY PUBLIC in and for the State of
Washington, residing at North Bend
My Appointment Expires: 0-00-00
XXXXX XX XXXXXXXXXX )
) ss.
COUNTY OF KING )
THIS IS TO CERTIFY that on this 14 day of February, 2000, before me,
the undersigned, a notary public in and for the state of Washington, duly
commissioned and sworn, personally appeared XXXXXX X. XXXXXXX, to me known to be
the Vice President of OPUS UNION STATION II, L.L.C., the Delaware limited
liability company that executed the within and foregoing instrument, and
acknowledged the said instrument to be the free and voluntary act and deed of
each limited liability company for the uses and therein mentioned, and on oath
stated that said individual was authorized to execute said instrument.
WITNESS my hand and official seal hereto affixed this 14 day of
February, 2000
/s/ Xxxxx X.X. Xxxxx
---------------------------------------
(Signature of Notary)
Xxxxx X.X. Xxxxx
---------------------------------------
(Print or stamp name of Notary)
NOTARY PUBLIC in and for the State of
Washington, residing at POULSBO
My Appointment Expires: 12-28-02
8.
EXHIBIT A
LEGAL DESCRIPTION XX XXX XXXX
Xxxx 0, Xxxxx Xxxxxxx, a condominium recorded in Volume 150 of Condominiums,
Pages 37 through 45, according to the Declaration thereof, recorded under King
County Recording No. 9807280839, including and together with those certain
easements for support, utilities, equipment and improvements, elevators, access
and telecommunication links set forth therein and any amendments thereto;
Situate in the City of Seattle, County of King, State of Washington.
9.
EXHIBIT B
DESCRIPTION OF BASE UNIT
Base Unit, Union Station, a condominium recorded in Volume 150 of Condominiums,
Pages 37 through 45, according to the Declaration thereof, recorded under King
County Recording No. 9807280839, including and together with those certain
easements for support, utilities, equipment and improvements, elevators, access
and telecommunication links set forth therein and any amendments thereto;
Situate in the City of Seattle, County of King, State of Washington.
10.
Xxxx 0
Xxxx Xxxxxx @ Union Station
Seattle, WA
ADDENDUM TO PARKING AGREEMENT AND COVENANT
This Addendum to Parking Agreement and Covenant (this "Addendum") is
made as of February 15th, 2000 by and between UNION STATION ASSOCIATES, LLC, a
Washington limited liability company ("USA LLC") and OPUS UNION STATION II
L.L.C., a Delaware limited liability company ("Unit Owner").
USA LLC and Unit Owner are parties to that certain Parking Agreement
and Covenant (Union Station Parking Garage) made and dated concurrently herewith
(the "Underlying Agreement"). Unit Owner owns Unit 4. Unless specifically
defined in this Addendum, capitalized terms have the same meaning as set forth
in the Underlying Agreement.
USA LLC and Unit Owner wish to amend and supplement the Underlying
Agreement all on the terms and conditions hereinafter set forth.
NOW, THEREFORE. in consideration of the covenants and agreements
hereinafter contained, the receipt and sufficiency of which is fully and
unconditionally acknowledged, USA LLC and Unit Owner do hereby agree as follows:
Section 1. This Addendum is incorporated by reference into the
Underlying Agreement as if set forth in full in the Underlying Agreement and the
combination of the Underlying Agreement and this Addendum are deemed to be a
single integrated agreement and shall be construed as such so that a breach by
either party of any of the terms, provisions, covenants or conditions of either
the Underlying Agreement or this Addendum shall constitute a breach of both
agreements entitling the non-defaulting party to exercise any and all remedies
provided in the Underlying Agreement or this Addendum or by applicable law.
Section 2. Any conflict between this Addendum and the Underlying
Agreement shall be controlled by the provisions of this Addendum.
Section 3. USA LLC covenants and agrees for the benefit of Unit Owner
that:
(a) Unit Owner shall at all times have the right to lease not
less than one (1) parking stall in the Garage Project for each 1,000 square feet
of Rentable Area of its Unit (the "Unit Entitlement"). As used herein, "Rentable
Area" shall have the same meaning as set forth in "Standard Method for Measuring
Floor Area in Office Buildings" (ANSI/BOMA Z65 1-1996) published by Building
Owners and Managers Association International.
(b) Unit Owner shall not be required at any time to lease a
minimum number of Leased Stalls.
(c) Each month Unit Owner shall notify USA LLC, or its
designated garage operators, of the number of each type of parking stall it
desires, as provided in paragraph 2 of the Underlying Agreement, for the
following month, provided the number of Executive Parking Stalls shall not
exceed 15% of the total Unit Entitlement without USA LLC's prior written
agreement; and provided further that for any month Unit Owner does not provide
such notice, Unit Owner shall have the same number of each type of stall it had
during the prior month.
(d) As used herein, the following terms have the Following
meanings:
1.
(i) "Executive Parking Stall" shall mean a stall in the
Garage Project which is located in a designated area within the Garage Project
available to such users which are specifically set aside for Executive Parking
Stall users on a non-reserved basis and which will be available to such users on
a 24-hour basis throughout the entire calendar year and shall not be subject in
or limited to Parking Hours.
(ii) "Regular Parking Stall" shall mean a parking stall
available in common with other users of the Garage Project on a non-reserved
basis, anywhere in the Garage Project, other than stalls reserved for Executive
Parking Stalls or similar reserved parking, which is available to a user on a
24-hour basis throughout the entire calendar year except for days when a Posted
Event is scheduled to occur. On days of Posted Events, the Regular Parking
Stalls will be limited to the Parking Hours.
(iii) "Posted Event" means any event scheduled for the
Kingdome, the Football Stadium, the Baseball Stadium or the adjacent Exhibition
Hall, during non-Parking Hours, which shall be posted at the entrances to the
Garage Project.
(iv) "Parking Hours" shall mean 7:00 o'clock a.m. to 6:00
o'clock p.m., Monday through Friday, 7:00 o'clock a.m. to 12:00 o'clock noon on
Saturday.
(e) In addition to the Unit Entitlement Unit Owner's
tenants and guests shall be entitled to lease during Parking Hours any available
stalls in the Garage Project on the same basis as the general public and the
other owners of units in the Condominium.
(f) USA LLC will not lease or license more Executive
Parking Stalls than the number of spaces specifically set aside for Executive
Parking Stalls in the Garage Project at the time, or lease or license to other
owners of units in the Condominium, more spaces than the rate of Unit Owner's
Unit Entitlement or lease or license more Regular Parking Stalls than the number
of spaces in the Garage Project not set aside for Executive Parking Stalls at
the time.
(g) Unit Owner shall at all times have the right, if it
wishes, to deal directly with USA LLC on behalf of tenants and occupants of the
Office Project.
(h) USA LLC will notify Unit Owner of Posted Events
during any calendar month on or before the 15th day of the prior calendar month.
Section 4. Parking rates for Units Owners' parking stalls shall be
fixed commencing on the Effective Date and ending 36 full calendar months after
the Effective Date, and the monthly charge for individual Leased Stalls during
such period shall be as follows:
DURING CALENDAR YEAR EXECUTIVE PARKING STALLS REGULAR PARKING STALLS*
-------------------- ------------------------ -----------------------
2001 $248.06 $192.04
2002 $260.46 $202.59
2003 $273.48 $212.72
2004 $287 15 $223.35
2005 $301.51 $234.52
* plus applicable sales tax
2.
Section 5. Following expiration of the period covered by Section 4
above, the parking rates for the Garage Project will be based on those charged
for parking in similar garages in the area of the Garage Project in view of the
hours which a particular xxxxxx is entitled to park in the Garage Project. The
parties agree that the Xxxxxxx Place Garage, the Xxxxxx Garage and 00 Xxxx
Xxxxxx Garage parking garages (the "Base Comparable Garages") are comparable
garages for purposes of establishing rates for the Garage Project. USA LLC
agrees not to charge in excess of the mean rate then charged by the Base
Comparable Garages for their parking stalls adjusted to be equivalent to
Executive Parking Stalls and Regular Parking Stalls. The parties may change the
Base Comparable Garages from time to time with the consent of USA LLC and Unit
Owner, which consent shall not be unreasonably withheld. The rates, as
established from time to time by USA LLC will be attached as a Schedule to this
Addendum; provided that a person using a Regular Parking Stall who does not
vacate the stall by 30 minutes after expiration of Parking Hours on the day of a
Posted Event or who parks in the Garage Project on the day of a Posted Event
when such day has no Parking Hours shall be charged the parking fee for the
Posted Event in addition to the monthly charge payable by such person.
Section 6. Any reference in the Underlying Agreement or this Addendum
to USA LLC includes its successors and assigns as Owner (as defined in the
Condominium Declaration) of the Base Unit.
Section 7. USA LLC covenants to open and operate the Garage Project at
least during all Parking Hours. In furtherance thereof, USA LLC covenants and
agrees that during such mandatory hours of operation, it shall have or cause its
garage operator to have uniformed staff on duty in the Garage. Notwithstanding
that the Parking Garage will be staffed and open to the public only during
Parking Hours, USA LLC agrees that users of Executive Parking Stalls and Regular
Parking Stalls shall be entitled to park in the Garage Project during hours in
which the Garage is closed, without additional charge, except on days of a
Posted Event.
Section 8. USA LLC agrees to comply with and to cause the designated
operator of the Garage Project to comply with the requirements the Property Use
and Development Agreement recorded under recording number 9002161696 in the
records of King County, Washington with respect to the requirements in such
document for carpool stalls.
Section 9. For so long as the Underlying Agreement and/or the
Condominium Declaration continue in effect, to the extent permitted by
applicable law, USA LLC covenants to defend, indemnify and hold Unit Owner, its
agents, property managers, employees, tenants, and Mortgagees harmless from and
against all claims, costs, expenses (including but not limited to attorneys'
fees), losses, fines, penalties, and other liabilities arising from or a result
of (i) the occupancy or use of the Garage Project by USA LLC, any of its
sublessees or licensees or any agent, contractor or employee of any of them;
(ii) any accident, injury, loss or damage whatsoever caused to any person or
property alleged to have occurred on or about the Garage; or (iii) any
negligence or willful misconduct of USA LLC or any sublessee, licensee or agent,
contractor or employee of any of them that is alleged or proven to have occurred
on or about the Garage Project; provided, however, that with respect to damage
caused by or resulting from the concurrent negligence of the indemnified person,
its agents or employees, and USA LLC, its agents or employees, the foregoing
indemnity shall apply only to the extent of the negligence of USA LLC, its
agents or employees.
Section 10. All of the provisions, agreements, rights, powers,
covenants, conditions and obligations contained in the Underlying Agreement and
this Addendum shall be binding on the parties, their respective heirs,
successors (by merger, consolidation or otherwise) and assigns, devisees,
administrators, representatives, lessees and all other persons acquiring either
Unit 4 or the Base Unit, or any portion thereof, or any interest therein,
whether by operation of law or in any other manner whatsoever, and shall inure
to the benefit of the parties and their respective
3.
heirs, successors (by merger, consolidation or otherwise) and assigns as Owners
(determined pursuant to the Condominium Declaration). All the provisions of the
Underlying Agreement and this Addendum shall be enforceable as equitable
servitudes and constitute covenants running with the land pursuant to applicable
law. It is expressly acknowledged that respect to the various covenants (whether
affirmative or negative) on the part of each respective party contained in the
Underlying Agreement or this Addendum, which affect or bind, or are to be
performed on portions of each party's respective Unit, the Unit benefited by
such covenant shall, during the term of the Underlying Agreement and this
Addendum be the dominant estate, and the Unit of the respective Owner, as the
case may be (or if the particular covenant affects, binds or is to be performed
on less than the whole of such Unit, then with respect to the particular
covenant, such portion thereof as is affected by, or bound by, a particular
covenant, on or which the particular covenant is to be performed) shall, during
the term of the Underlying Agreement and this Addendum, be the servient estate.
Section 11. Nothing in the Underlying Agreement or this Addendum, nor
the acts of the parties, shall be deemed to create a partnership between or
among the parties or shall cause them to be considered joint venturers or
members of any joint enterprise.
Section 12. The provisions of the Underlying Agreement and this
Addendum are for the exclusive benefit of the parties and their successors and
assigns and are not for the benefit of any third person nor shall this Agreement
be deemed to have conferred any rights, express or implied, upon any third
person. It is expressly understood and agreed that no modification, amendment,
whole or in part, of the Underlying Agreement or this Addendum shall require any
consent or approval on the part of any person other than the undersigned, or
their successors or assigns as the Owner of each of the undersigned's respective
Units in the condominium.
IN WITNESS WHEREOF, this Addendum is executed by the parties, intended
to be legally bound, as of the date first written above.
USA LLC UNION STATION ASSOCIATES, LLC,
a Washington limited liability company
By NSD, L.L.C., Manager
By: /s/ Xxxxx Xxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxx
Title: Member
UNIT OWNER OPUS UNION STATION II, L.L.C.,
a Delaware limited liability company
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
4.
THIS IS TO CERTIFY that on this 15th day of February, 2000, before me,
the undersigned, a notary public in and for the state of Washington, duly
commissioned and sworn, personally appeared XXXXX XXXXXXX, to me known to be a
Member of NSD, L.L.C., a Washington limited liability company, to me known to be
the Manager of UNION STATION ASSOCIATES, LLC, the Washington limited liability
company that executed the within and foregoing instrument, and acknowledged the
said instrument to be the free and voluntary act and deed of each limited
liability company for the uses and therein mentioned, and on oath stated that
said individual was authorized to execute said instrument.
WITNESS my hand and official seal hereto affixed this 15th of February,
2000.
/s/ Xxxx X. Xxxxxxxx
-----------------------------------------
(Signature of Notary)
Xxxx X. Xxxxxxxx
-----------------------------------------
(Print or stamp name of Notary)
NOTARY PUBLIC in and for the State of
Washington, residing at North Bend
My Appointment Expires: 5-22-02
5.
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
THIS IS TO CERTIFY that an this 14 day of February, 2000, before me,
the undersigned, a notary public in and for the state of Washington, duly
commissioned and sworn, personally appeared XXXXXX X. XXXXXXX, to me known to be
the Vice President of OPUS UNION STATION II, L.L.C, the Delaware limited
liability company that executed the within and foregoing instrument, and
acknowledged the said instrument to be the free and voluntary act and deed of
each limited liability company for the uses and therein mentioned, and on oath
stated that said individual was authorized to execute said instrument.
WITNESS my hand and official seal hereto affixed this 14 day of
February, 2000.
/s/ Xxxxx X.X. Xxxxx
-----------------------------------------
(Signature of Notary)
Xxxxx X.X. Xxxxx
-----------------------------------------
(Print or stamp name of Notary)
NOTARY PUBLIC in and for the State of
Washington, residing at POULSBO
My Appointment Expires: 12-28-02
6.
ADDENDUM TO PARKING AGREEMENT AND COVENANT
This Addendum to Parking Agreement and Covenant (this "Addendum") is
made as of June 1, 1999 by and between UNION STATION ASSOCIATES, LLC. a
Washington limited liability company ("USA LLC") and OPUS UNION STATION, L.L.C.,
a Delaware limited liability company ("Unit Owner").
USA LLC and Unit Owner are parties to that certain Parking Agreement
and Covenant (Union Station Parking Garage) made and dated concurrently herewith
(the "Underlying Agreement"). Unit Owner owns Unit 2. Unless specifically
defined in this Addendum, capitalized terms have the same meaning as set forth
in the Underlying Agreement.
USA LLC and Unit Owner wish to amend and supplement the Underlying
Agreement, all on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the covenants and agreements
hereinafter contained, the receipt and sufficiency of which is fully and
unconditionally acknowledged, USA LLC and Unit Owner do hereby agree as follows:
SECTION 1. This Addendum is incorporated by reference into the
Underlying Agreement set forth in full in the Underlying Agreement and the
combination of the Underlying Agreement and this Addendum are deemed to be a
single integrated agreement and shall be construed as such so that a breach by
either party of any of the terms, provisions, covenants or conditions of either
the Underlying Agreement or this Addendum shall constitute a breach of both
agreements entitling the non-defaulting party to exercise any and all remedies
provided in the Underlying Agreement or this Addendum or by applicable law.
SECTION 2. Any conflict between this Addendum and the Underlying
Agreement shall be controlled by the provisions of this Addendum.
SECTION 3. USA LLC covenants and agrees for the benefit of Unit Owner
that:
(a) Unit Owner shall at all times have the right to lease
not less than one (1) parking stall in the Garage Project for each 1,000 square
feet of Rentable Area of its Unit (the "Unit Entitlement"). As used herein,
"Rentable Area" shall have the same meaning as set forth in "Standard Method for
Measuring Floor Area in Office Buildings" (ANSI/BOMA Z65 1-1996) published by
Building Owners and Managers Association International.
(b) Unit Owner shall not be required at any time to lease
a minimum number of Leased Stalls.
(c) Each month Unit Owner shall notify USA LLC, or its
designated garage operators, of the number of each type of parking stall it
desires, as provided in paragraph 2 of the Underlying Agreement, for the
following month. provided the number of Executive Parking Stalls shall not
exceed 15% of the total Unit Entitlement without USA LLC's prior written
agreement; and provided further that for any month Unit Owner does not provide
such notice, Unit Owner shall have the same number of each type of stall it had
during the prior month.
(d) As used herein. the following terms have the
following meanings:
(i) "Executive Parking Stall" shall mean a stall in the
Garage Project which is located in a designated area within the Garage Project
available to such users which are specifically set aside for Executive Parking
Stall users on a non-reserved basis and which will be available to such users on
a 24 hour basis throughout the entire calendar year and shall not be subject to
or limited to Parking Hours.
(ii) "Regular Parking Stall" shall mean a parking stall
available in common with other users of the Garage Project on a non-reserved
basis, anywhere in the Garage Project, other than stalls reserved for Executive
Parking Stalls or similar reserved parking, which is available to a user on a 24
hour basis throughout the
1
entire calendar year except for days when a Posted Event is scheduled to occur.
On days of Posted Events, the Regular Parking Stalls will be limited to the
Parking Hours.
(iii) "Posted Event" means any event scheduled for the
Kingdome, the Football Stadium, the Baseball Stadium or the adjacent Exhibition
Hall, during non-Parking Hours, which shall be posted at the entrances to the
Garage Project.
(iv) "Parking Hours" shall mean 7:00 o'clock a.m. to 6:00
o'clock p.m., Monday through Friday, 7:00 o'clock a.m. to 12:00 o'clock noon on
Saturday.
(e) In addition to the Unit Entitlement, Unit Owner's
tenants and guests shall be entitled to lease during Parking Hours any available
stalls in the Garage Project on the same basis as the general public and the
other owners of Units in the Condominium.
(f) USA LLC will not lease or license more Executive
Parking Stalls than the number of spaces specifically set aside for Executive
Parking Stalls in the Garage Project at the time, or lease or license to other
owners of units in the Condominium, more spaces than the rate of Unit Owner's
Unit Entitlement or lease or license more Regular Parking Stalls than the number
of spaces in the Garage Project not set aside for Executive Parking Stalls at
the time.
(g) Unit Owner shall at all times have the right, if it
wishes, to deal directly with USA LLC on behalf of tenants and occupants of the
Office Project.
(h) USA LLC will notify Unit Owner of Posted Events
during any calendar month on or before the 15th day of the prior calendar month.
SECTION 4. Parking rates for Units Owners' parking stalls shall be
fixed commencing on the Effective Date and ending 36 full calendar months after
the Effective Date, and the monthly charge for individual Leased Stalls during
such period shall be as follows:
DURING CALENDAR YEAR EXECUTIVE PARKING STALLS* REGULAR PARKING STALLS*
-------------------- ------------------------- -----------------------
1999 $225.00 $175.00
2000 $236.25 $183.75
2001 $248.06 $192.04
2002 $260.46 $202.59
2003 $273.48 $212.72
*plus applicable sales tax
SECTION 5. Following expiration of the period covered by Section 4
above, the parking rates for the Garage Project will be based on those charged
for parking in similar garages in the area of the Garage Project in view of the
hours which a particular xxxxxx is entitled to park in the Garage Project. The
parties agree that the Xxxxxxx Place Garage, the Xxxxxx Garage and 00 Xxxx
Xxxxxx Garage parking garages (the "Base Comparable Garages") are comparable
garages for purposes of establishing rates for the Garage Project. USA LLC
agrees not to charge in excess of the mean rate then charged by the Base
Comparable Garages for their parking stalls adjusted to be equivalent to
Executive Parking Stalls and Regular Parking Stalls. The parties may change the
Base Comparable Garages from time to time with the consent of USA LLC and Unit
Owner, which consent shall not be unreasonably withheld. The rates, as
established from time to time by USA LLC will be attached as a Schedule to this
Addendum; provided that a person using a Regular Parking Stall who does not
vacate the stall by 30 minutes after expiration of Parking Hours on the day of a
Posted Event or who parks in the Garage Project on the day of a Posted
2
Event when such day has no Parking Hours shall be charged the parking fee for
the Posted Event in addition to the monthly charge payable by such person.
SECTION 6. Any reference in the Underlying Agreement or this Addendum
to USA LLC includes its successors and assigns as Owner (as defined in the
Condominium Declaration) of the Base Unit.
SECTION 7. USA LLC covenants to open and operate the Garage Project at
least during all Parking Hours. In furtherance thereof, USA LLC covenants and
agrees that during such mandatory hours of operation, it shall have or cause its
garage operator to have uniformed staff on duty in the Garage. Notwithstanding
that the Parking Garage will be staffed and open to the public only during
Parking Hours, USA LLC agrees that users of Executive Parking Stalls and Regular
Parking Stalls shall be entitled to park in the Garage Project during hours in
which the Garage is closed, without additional charge, except on days of a
Posted Event.
SECTION 8. USA LLC agrees to comply with and to cause the designated
operator of the Garage Project to comply with the requirements the Property Use
and Development Agreement recorded under recording number 9002161696 in the
records of King County, Washington with respect to the requirements in such
document for carpool stalls.
SECTION 9. For so long as the Underlying Agreement and/or the
Condominium Declaration continue in effect, to the extent permitted by
applicable law, USA LLC covenants to defend, indemnify and hold Unit Owner, its
agents, property managers, employees, tenants, and Mortgagees harmless from and
against all claims, costs, expenses (including but not limited to attorneys'
fees), losses, fines, penalties, and other liabilities arising from or a result
of (i) the occupancy or use of the Garage Project by USA LLC, any of its
sublessees or licensees or any agent, contractor or employee of any of them;
(ii) any accident, injury, loss or damage whatsoever caused to any person or
property alleged to have occurred on or about the Garage; or (iii) any
negligence or willful misconduct of USA LLC or any sublessee, licensee or agent,
contractor or employee of any of them that is alleged or proven to have occurred
on or about the Garage Project; provided, however, that with respect to damage
caused by or resulting from the concurrent negligence of the indemnified person,
its agents or employees, and USA LLC, its agents or employees, the foregoing
indemnity shall apply only to the extent of the negligence of USA LLC, its
agents or employees.
SECTION 10. All of the provisions, agreements, rights, powers,
covenants, conditions and obligations contained in the Underlying Agreement and
this Addendum shall be binding on the parties, their respective heirs,
successors (by merger, consolidation or otherwise) and assigns, devisees,
administrators, representatives, lessees and all other persons acquiring either
Unit 2 or the Base Unit, or any portion thereof, or any interest therein,
whether by operation of law or in any other manner whatsoever, and shall inure
to the benefit of the parties and their respective heirs, successors (by merger,
consolidation or otherwise) and assigns as Owners (determined pursuant to the
Condominium Declaration). All the provisions of the Underlying Agreement and
this Addendum shall be enforceable as equitable servitudes and constitute
covenants running with the land pursuant to applicable law. It is expressly
acknowledged that respect to the various covenants (whether affirmative or
negative) on the part of each respective party contained in the Underlying
Agreement or this Addendum, which affect or bind, or are to be performed on
portions of each party's respective Unit, the Unit benefited by such covenant
shall, during the term of the Underlying Agreement and this Addendum be the
dominant estate, and the Unit of the respective Owner, as the case may be (or if
the particular covenant affects, binds or is to be performed on less than the
whole of such Unit, then with respect to the particular covenant, such portion
thereof as is affected by, or bound by, a particular covenant, on or which the
particular covenant is to be performed) shall, during the term of the Underlying
Agreement and this Addendum, be the servient estate.
SECTION 11. Nothing in the Underlying Agreement or this Addendum, nor
the acts of the parties, shall be deemed to create a partnership between or
among the parties or shall cause them to be considered joint venturers or
members of any joint enterprise.
SECTION 12. The provisions of the Underlying Agreement and this
Addendum are for the exclusive benefit of the parties and their successors and
assigns and are not for the benefit of any third person nor shall this Agreement
be deemed to have conferred any rights, express or implied, upon any third
person. It is expressly understood and agreed that no modification, amendment,
whole or in part, of the Underlying Agreement or this
3
Addendum shall require any consent or approval on the part of any person other
than the undersigned, or their successors or assigns as the Owner of each of the
undersigned's respective Units in the condominium.
IN WITNESS WHEREOF, this Addendum Is executed by the parties, intended
to be legally bound, as of the date first written above.
USA LLC UNION STATION ASSOCIATES, LLC,
a Washington limited liability company
By NSD, L.L.C., Manager
By: /s/ Xxxxx Xxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxx
Title: Member
UNIT OWNER OPUS UNION STATION, L.L.C.,
a Delaware limited liability company
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
THIS IS TO CERTIFY that on the 1st day of June, 1999, before me, the
undersigned, a notary public in and for the State of Washington, duly
commissioned and sworn, personally appeared XXXXX XXXXXXX to me known to be a
Member of NSD, L.L.C., a Washington limited liability company and to me known to
be the Manager of UNION STATION ASSOCIATES, L.L.C., the Washington limited
liability company that executed the within and foregoing instrument, and
acknowledged the said instrument to be the free and voluntary act and deed of
each limited liability company for the uses and purposes therein mentioned, and
on oath stated that said individual was authorized to execute said instrument.
WITNESS my hand and official seal hereto affixed this 1st day of June,
1999.
/s/ Xxxx X. Xxxxxxxx
-----------------------------------------
(Signature of Notary)
Xxxx X. Xxxxxxxx
-----------------------------------------
(Print or stamp name of Notary)
NOTARY PUBLIC in and for the State of
Washington
My Appointment Expires: 5-22-02
4
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
I certify that I know or have satisfactory evidence that Xxxxxx X.
Xxxxxxx is the person who appeared before me, and said person acknowledged that
he signed this instrument, on oath stated that he was authorized to execute the
instrument and acknowledged it as the Vice President of OPUS UNION STATION,
L.L.C. to be the free and voluntary act and deed of said limited liability
corporation, for the uses and purposes mentioned in the instrument.
WITNESS my hand and official seal hereto affixed this 1st day of June,
1999.
/s/ Xxxx X. Xxxxxxxx
-----------------------------------------
(Signature of Notary)
Xxxx X. Xxxxxxxx
-----------------------------------------
(Print or stamp name of Notary)
NOTARY PUBLIC in and for the State of
Washington
My Appointment Expires: 5-22-02
5
RETURN ADDRESS:
Xxxxx X Xxxxxx, Esq
Xxxx, Xxxxxxx & Cleveland, PLLC
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
AMENDMENT TO
PARKING AGREEMENT AND COVENANT
RECORDING NO OF RELATED DOCUMENT 20000216000353
GRANTOR UNION STATION ASOCIATES, LLC
GRANTEE OPUS UNION STATION II L.L.C.
ABREVIATED LEGAL DESCRIPTION N/A (See related document referred to above)
ASSESSOR'S TAX PARCEL NO. 880970-0050-00
The Amendment to Parking Agreement and Covenant (the "Amendment") is
made and entered into this 10th day of May, 2000, by and between Union Station
Associates, LLC, a Washington limited liability company ("USA") and OPUS Union
Station II, L.L.C., a Delaware limited liability company ("OPUS")
WHEREAS, USA and OPUS entered into a Parking Agreement and Covenant
dated February 15, 2000, and recorded under King County Recording No.
20000216000353 (the "Parking Agreement"), which Parking Agreement provided for
the lease of up to 257 parking stalls in the Garage Project (as defined in the
Parking Agreement), and
WHEREAS, the number of parking stalls was based on the proposed
rentable square footage of the Office Project (as defined in the Parking
Agreement) of 256,886, and
WHEREAS, the revised rentable square footage of the Office Project is
now 260,044 square feet and the parties have agreed to increase the maximum
number of parking stalls available to OPUS to 260,
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereby agree to amend the Parking
Agreement as follows:
1. In the last line of Recital paragraph D and the sixth line of
paragraph 1 of the Parking Agreement "257" is hereby amended to be "260".
1.
2. Except as hereby amended by this Amendment, the Parking
Agreement shall remain in full force and effect.
UNION STATION ASSOCIATES, LLC,
a Washington limited liability company
By NSD, L.L.C., a Washington limited
liability company, its manager
By: /s/ Xxxxx Xxxxxxx
--------------------------------------
Xxxxx Xxxxxxx, Member
OPUS UNION STATION II, L.L.C.,
a Delaware limited liability company
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Xxxxxx X. Xxxxxxx, Vice President
2.
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
I certify that I know or have satisfactory evidence that XXXXX XXXXXXX
is the person who appeared before me, and said person acknowledged that he
signed this instrument, on oath stated that he was authorized to execute the
instrument and acknowledged it as the Member of NSD, LLC, as the Manager of
UNION STATION ASSOCIATES, LLC, to be the free and voluntary act and deed of said
limited liability company, for the uses and purposes mentioned in the instrument
WITNESS my hand and official seal hereto affixed this 10th day of May,
2000
/s/ Xxxxx Xxxxxxx
-----------------------------------------
(Signature of Notary)
Xxxxx Xxxxxxx
-----------------------------------------
(Print or stamp name of Notary)
NOTARY PUBLIC in and for the State of
Washington
My Appointment Expires: 0-00-00
XXXXX XX XXXXXXXXXX )
) ss.
COUNTY OF KING )
I certify that I know or have satisfactory evidence that XXXXXX B,
XXXXXXX is the person who appeared before me, and said person acknowledged that
he signed this instrument, an oath stated that he was authorized to execute the
instrument and acknowledged it as the Vice-President of OPUS UNION STATION II,
L.L.C., to be the free and voluntary act and deed of said limited liability
company, for the uses and purposes mentioned in the instrument
WITNESS my hand and official seal hereto affixed this 10th day of May,
2000
/s/ Xxxxx Xxxxx
-----------------------------------------
(Signature of Notary)
Xxxxx Xxxxx
-----------------------------------------
(Print or stamp name of Notary)
NOTARY PUBLIC in and for the State of
Washington
My Appointment Expires: 6/15/2002
3.
EXHIBIT D TO SUBLEASE
LANDLORD'S CONSENT
The undersigned, Landlord under the Prime Lease (as defined in the
foregoing Sublease Agreement dated as of May ___, 2003, by and between
Xxxxxx.xxx Holdings, Inc. and Blue Nile, Inc.), hereby consents, as contemplated
in Article 13 of such Prime Lease, to the foregoing Sublease on the express
condition that nothing in this consent is intended to relieve, release,
discharge or otherwise affect the liability of Sublandlord or Original Tenant
from the performance of their respective obligations to Landlord under the Prime
Lease and they shall remain fully liable under the Prime Lease to perform all of
the obligations of the "Tenant" under the Prime Lease. This Consent shall apply
only to this Sublease and shall not be deemed to be either (a) a consent to any
other sublease, assignment or other Transfer (as defined in the Prime Lease) of
any interest in any of the Premises leased to Sublandlord under the Prime Lease
or (b) a release from or waiver of the obligation to obtain Landlord's consent
in the event of any future sublease or assignment or other Transfer of any
interest in any of the Premises leased to Sublandlord under the Prime Lease.
This consent and the Recognition Agreement dated May 22, 2003 between
Landlord, Subtenant and Xxxxxx.xxx Holdings, Inc., represent the entire
agreement of Landlord with respect to the Sublease and shall be binding upon and
inure to the benefit of Subtenant, Sublandlord, Original Tenant, and Landlord
and their respective successors and assigns.
Nothing in this Consent or the Sublease shall be deemed to obligate
Landlord to perform any obligations under the Prime Lease for the benefit of
Subtenant. This Consent is issued on the understanding that nothing contained in
the Sublease or this Consent and no direct relationship between Landlord and
Subtenant including, without limitations, the provisions of Section 4.3 of the
Sublease, shall modify, expand or enlarge Landlord's obligations under the Prime
Lease nor release Sublandlord or Original Tenant from any of their obligations
thereunder.
Dated this 22 day of May, 2003.
SEATTLE UNION STATION II, LLC,
a Washington limited liability company
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------------
Xxxxxx X. Xxxxxxxxx, Asst Secy of Mig
Corp, its Manager
ORIGINAL TENANT'S CONSENT AND ACKNOWLEDGMENT
Original Tenant hereby consents to the foregoing Sublease and ratifies
and affirms that Original Tenant remains liable under the Prime Lease as a
principal and not as a surety notwithstanding execution of the foregoing
Sublease or any course of conduct or dealings between Subtenant and Tenant and
nothing contained herein and no such course of conduct or dealings shall
relieve, release, discharge or otherwise affect the liability of Original Tenant
for the performance of Sublandlord's and Original Tenant's obligations to
Landlord under the Prime Lease.
Agreed to and accepted this 21 day of May, 2003.
XXXXXX.XXX, INC.
By: /s/ Xxxx X. Xxxx
--------------------------------------
Name: Xxxx X. Xxxx
Title: XX XXX
