EXHIBIT 10.15
UNITED OLYMPIC LIFE BUILDING
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LEASE AGREEMENT
BETWEEN
XXXX XXXXXX REALTY INCOME PARTNERSHIP II, L.P.
Lessor
and
ASYMETRIX CORPORATION
Lessee
UNITED OLYMPIC LIFE BUILDING
LEASE AGREEMENT
THIS LEASE AGREEMENT (The "LEASE"), dated the 24th day of May 1991, is by
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and between XXXX XXXXXX REALTY INCOME PARTNERSHIP II, L.P., A DELAWARE LIMITED
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PARTNERSHIP, hereinafter called "Lessor", and ASYMETRIX CORPORATION, A
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WASHINGTON CORPORATION hereinafter called "Lessee". As parties hereto, Lessor
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and Lessee agree:
1. LEASE DATA AND EXHIBITS. The following terms as used herein shall have
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the meanings provided in this Section 1, unless otherwise specifically modified
by provisions of this Lease:
(a) Building: Known as United Olympic Life Building, Bellevue,
Washington, or such other name as Lessor may designate from time to
time, situated on a portion of the real property more particularly
described in Section 2 hereof.
(b) Premises: Consisting of 25,626 net rentable square feet on the
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seventh (7) floor, Suite 717 of the Building, as outlined on the floor
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plan(s) attached hereto as Exhibit C, including tenant improvements,
if any, as described in Exhibit A.
(c) Floor Areas: The agreed net rentable area of the Premises is 25,626
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net rentable square feet and of the Building is 213,000 square feet.
(d) Commencement Date: November 1, 1991.
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(e) Expiration Date: October 31, 1996.
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(f) Lease Term: Five (5) years.
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(g) Base Monthly Rent: $ * per month, payable in advance on or
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before the first day of each month per Section 3 hereof. The total
monthly rent is based on $ * per square foot per year of net
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rentable area and is subject to adjustment as provided in Section 9
hereof.
* See Attachment I; Special Provisions No. 1.
(h) Security Deposit: $ N/A .
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(i) Notice Addresses:
Lessor: Xxxx Xxxxxx Realty Income Partnership II, L.P.
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c/x Xxxxxxx, XxXxxxxx & Company
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000-000 Xxxxxx X.X., Xxxxx 000
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Xxxxxxxx, Xxxxxxxxxx 00000
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Lessee: Asymetrix Corporation
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000-000 Xxxxxx X.X., Xxxxx 000
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Xxxxxxxx, Xxxxxxxxxx 00000
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(j) Exhibits: The following exhibits or riders are made a part of this
Lease:
ATTACHEMENT I - SPECIAL PROVISIONS
ATTACHEMENT II - RULES AND REGULATIONS
EXHIBIT A - TENANT IMPROVEMENTS
EXHIBIT B - LESSEE'S PLAN REQUIREMENTS
EXHIBIT C - FLOOR PLAN OF LEASED PREMISES
EXHIBIT D - COMMON AREA IMPROVEMENT WORKLIST
2. PREMISES. Lessor does hereby lease to Lessee, and Lessee does hereby
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lease from Lessor, upon the terms and conditions herein set forth, the Premises
described in Section 1 (b) hereof as shown on Exhibit C attached hereto and
incorporated herein, situated on the real property in Bellevue, King County,
Washington, described as follows:
That portion of the Southwest quarter of the Northeast quarter of Section 32,
Township 25 North, Range 5 East, X.X., in Xxxx County, Washington, described as
follows:
Xxxxxxx at the intersection of the East margin of 110th Avenue Northeast,
as now established with a line parallel to and 277.5 North of, when
measured at right angles to the East-West centerline of said Section 32;
thence Easterly along said parallel line to a point in linen parallel to
and 476.8 feet West of, when measured at right angles, to the East line of
said subdivision; thence Northerly along said parallel line to a point in a
line parallel to and 577.5 feet North of, when measured at right angles to,
the said center line of said Section; thence Westerly along said parallel
line, 14.09 feet to a point in a line parallel to and 162.00 feet West of,
when measured at rights angles to, the East line of the West three quarters
of the South half of said subdivision; thence Northerly along said parallel
line to the South margin of Northeast Second Street as now established;
thence Westerly along said South margin of Northeast Second Street as to
the said East margin of 000xx Xxxxxx Xxxxxxxxx; thence Southerly along said
East margin to the point of beginning.
3. RENT. Lessee agrees to and shall pay to Lessor, the monthly rental
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stated in paragraph 1(g) in advance on the first day of each calendar month
during the Lease Term, at the office of Lessor, Suite 1801, 0000 0xx Xxxxxx,
Xxxxxxx, Xxxxxxxxxx 00000 or at such other place as Lessor may from time to time
designate in writing. Rent payable for any period of less than one calendar
month shall equal 1/30 of the monthly rental for each day of such period, and
shall be payable on the first day of such period.
4. ACCEPTANCE OF PREMISES. Except for those punchlist items* scheduled by
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Lessor and Lessee prior to the Lease Commencement Date, Lessee's occupancy of
the Premises shall be deemed to constitute acceptance of same and acknowledgment
by Lessee that Lessor has
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fully complied with its obligations hereunder to construct and deliver to Lessee
the Premises. Lessor shall have the right to enter the Premises to complete or
repair any such unfinished items** and entry by Lessor, its agents, servants,
employees or contractors for such purpose shall not constitute an actual or
constructive eviction, in whole or in part, or entitle Lessee to any abatement
or diminution of Rent or relieve Lessee of any of its obligations under this
Lease, or impose any liability upon Lessor or its agents, servants, employees or
contractors.
* and latent defects not evidence at time of inspection,
** or latent defects
5. POSSESSION. If Lessor fails to deliver possession of Premises ready
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for occupancy at the Commencement Date of the Lease Term, Lessor shall not be
liable for any damage caused thereby, nor shall this Lease become void or
voidable, but in such event, no Rent shall be payable by Lessee to Lessor for
any portion of the Lease Term until Lessor can deliver possession of Premises to
Lessee ready for occupancy by Lessee. If the Commencement Date of the Lease
Term is delayed, the Expiration Date will be extended by a like period of time.
If Lessee, with Lessor's permission, enters into possession of Premises prior to
Commencement Date of the Lease Term, all of the terms and conditions of this
Lease shall apply during such prior period, including payment of Rent at the
Monthly Rate stated in Section 1(g) and Additional Rent. The expansion area of
the Premises shall be deemed substantially complete and ready for occupancy on
the date the Lessor receives approval from the City of Bellevue for occupancy of
the Premises.
6. SECURITY DEPOSIT. As security for the full and faithful performance of
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every covenant and condition of this Lease to be performed by Lessee, Lessee has
paid to Lessor the Security Deposit as specified in Section 1(h) hereof, receipt
of which is hereby acknowledged. If Lessee shall default with respect to any
covenant or condition of this Lease, including but not limited to the payment of
Rent, Additional Rent or any other payment due under this Lease, Lessor may
apply all or any part of the Security Deposit to the payment of any sum in
default or any other sum which Lessor may be required to spend or incur by
reason of Lessee's default or any other sum which Lessor may in its reasonable
discretion deem necessary to spend or incur by reason of Lessee's default. In
such event, Lessee shall, within five (5) days of written demand therefore by
Lessor, deposit with Lessor the amount so applied. If Lessee shall have fully
complied with all of the covenants and conditions of this Lease, but not
otherwise, the amount of the Security Deposit then held by Lessor shall be
repaid to Lessee (or, at Lessor's option, to the last assignee of Lessee's
interest hereunder) within thirty (30) days after the Expiration Date or sooner
termination of this Lease. In the event of Lessee's default under this Lease,
Lessor's right to retain the Security Deposit shall be deemed to be in addition
to any and all other rights and remedies at law or in equity available to
Lessor. Lessor shall not be required to keep any Security Deposit separate from
its general funds and Lessee shall not be entitled to any interest thereon.
7. USE. Lessee shall use and occupy the Premises only for general office
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purposes and for no other purposes without Lessor's prior written consent.
Lessee shall not do or permit anything to be done in or about the Premises nor
bring or keep anything therein which will in any way increase the existing rate
of or affect any fire or other insurance upon the Building or any of
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its contents, or cause a cancellation of any insurance policy covering said
building or any part thereof or any of its contents. Lessee shall not do or
permit anything to be done in or about the Premises which will in any way
obstruct or interfere with the rights of other tenants or occupants of the
Building or injure or annoy them or use or allow the Premises to be used for any
improper, immoral, unlawful or objectionable purpose, nor shall Lessee cause,
maintain or permit any nuisance in, on or about the Premises. Lessee shall not
commit or suffer to be committed any waste in or upon the Premises.
8. SERVICES AND UTILITIES.
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a. Standard Services. Lessor shall cause the Premises and the public and
common areas of the Building, such as lobbies, elevators, stairs, corridors and
restrooms, to be maintained in reasonably good order and condition consistent
with the operation and maintenance of the Building as a first-class office
building in Bellevue, except for damage occasioned by any act or omission of
Lessee or Lessee's officers, contractors, agents, invitees, licensees or
employees, the repair of which damage shall be paid for by Lessee.
From 7:00 a.m. to 6:00 p.m. on weekdays and from 8:00 a.m. to 1:00 p.m. on
Saturday, excluding legal holidays ("Normal Business Hours"), Lessor shall
furnish the Premises with electricity for lighting and operation of standard
office machines, water, heat and air conditioning, and elevator service.
During all other hours, Lessor shall furnish such services, including
elevator service as reasonably required to provide access to the Premises,
except for heat and air conditioning. If requested by Lessee, Lessor shall
furnish heat and air conditioning at times other than Normal Business Hours and
the * cost of such services as established by Lessor shall be paid by Lessee as
Additional Rent. Lessor shall also provide lamp replacement services for
building standard fluorescent light fixtures, toilet room supplies, window
washing at reasonable intervals, and customary building janitorial service. No
janitorial service shall be provided on legal holidays. The costs of any
janitorial or other service provided or cause to be provided by Lessor to Lessee
which are in addition to the services ordinarily provided to Building tenants
shall be paid to Lessor in the manner provided for payment of Rent in Section 3
of this Lease.**
* reasonable
** Administration fees resulting from such services shall not exceed 5%
of the cost of the service.
Lessor shall be obligated to provide the services and utilities as outlined
herein only so long as Lessee is not in default per the terms of this Lease.
b. Interruption of Services. Lessor shall not be liable for any loss,
injury or damage to person or property caused by or resulting from any
variation, interruption, or failure of such services due to any cause
whatsoever***, or from failure to make any repairs or perform any maintenance.
No temporary interruption or failure of such services incident to the making of
repairs, alterations, or improvements, or due to accident, strike or conditions
or events beyond Lessor's reasonable control shall be deemed an eviction of
Lessee or relieve Lessee from any of
Lessee's obligations hereunder. Provided however, that if the Premises should
become not reasonably suitable for Lessee's use as a consequence of the
cessation of utilities or other services required to be provided to the Premises
by Lessor that continues for five successive business days or more (an "Event
Interfering with Lessee's Use"), then Lessee shall be entitled to an abatement
or rent to the extent of the interference with Lessee's use of the Premises
occasioned thereby provided Lessor uses good faith efforts to restore services
as quickly as possible. Provided further, that if the Event Interfering with
Lessee's Use cannot be corrected or the damage resulting therefrom repaired so
that the Premises will be reasonably suitable for Lessee's intended use within
120 days following the occurrence of such event, then in addition to its other
rights, Lessee shall be entitled to terminate this Lease by written notice to
Lessor.****
*** unless caused by Lessor's negligence.
**** See Attachment I, Special Provisions No. 10
c. Additional Services. Lessee will not, without the written consent of
Lessor, use any apparatus or device in the Premises using current in excess of
110 volts; nor connect with electric current, except through existing electrical
outlets in the Premises, or water pipes, any apparatus or device, for the
purposes of using electric current or water. If Lessee shall require water or
electric current in excess of that usually furnished or supplied during Normal
Business Hours or other than Normal Business Hours, for use of the Premises as
general office space, Lessee shall first procure the consent of Lessor to the
use thereof and Lessor may cause a water meter or electric current meter to be
installed in the Premises, so as to measure the amount of water and electric
current consumed for any such other use. The cost of any such meters and of
installation, maintenance and repair thereof shall be paid by the Lessee and
Lessee agrees to pay to Lessor promptly upon demand therefore by Lessor for all
such water and electric current consumed as shown by said meters, at the rates
charged for such services by the City of Bellevue or the local public utility,
as the case may be, furnishing the same, plus any additional expense incurred in
keeping account of the water and electric current so consumed.*****
***** Lessee and Lessor acknowledge that Lessor is currently submetering
Lessee's supplemental HVAC and will continue to submeter consumption
of such non-standard electric usage.
9. * RENTAL ADJUSTMENTS, OPERATING COSTS.
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* For additional language of this Section, see Attachment I Special
Provisions No. 1.
(a) Definitions. In addition to the Rent provided in Section 1(g) of
this Lease, Lessee shall pay to Lessor increases under this Section 9 as
"Additional Rent," utilizing the following definitions:
(i) "Operating Costs" shall include Costs of Energy, Real Property
Taxes, and Other Operating Costs.
(1) "Real Property Taxes" shall mean taxes on real property and
personal property, and taxes on property of Lessee, as described in Section 9(i)
below, which
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have not been paid by Lessee directly to the taxing authority; charges and
assessments (or any installment thereof due during the Lease Year) levied with
respect to the land, the Building, any improvements, fixtures and equipment, and
all other property of Lessor, real or personal, used directly in the operation
of the Building and located in or on the Building; and any taxes levied or
assessed (or any installment thereof due during the Lease Year) in addition to
or in lieu of, in whole or in part, such real property or personal property
taxes, or any other tax upon leasing of the Building or rents collected, but not
included any federal or state income or franchise tax.
(2) "Costs of Energy" shall mean all expenses paid or incurred by
Lessor in the normal operation and maintenance of the Building for electricity,
gas and similar energy sources, including any surcharges imposed.
(3) "Other Operating Costs" shall mean all other expenses paid or
incurred by Lessor for obtaining services and products for maintaining,
operating and repairing the Building and the personal property used in
conjunction therewith, including, without limitation, the costs of refuse
collection, water, sewer and other utilities services (excluding costs included
in the Cost of Energy), supplies, janitorial and cleaning services, window
washing, landscape maintenance, services of independent contractors,
compensation (including employment taxes and fringe benefits) of all persons who
perform duties in connection with the operation, maintenance and repair of the
Building, its equipment and the land upon which it is situated, insurance
premiums, licenses, permits, and inspection fees, customary management fees,
legal and accounting expenses and any other expense or charge whether or not
hereinabove described which in accordance with generally accepted accounting and
management practices would be considered an expense of maintaining, operating or
repairing the Building, excluding or deducting, as appropriate:
(A) Costs of any special services rendered to individual tenants
(including Lessee) for which a special charge is made;
(B) Depreciation or amortization of costs required to be capitalized
in accordance with generally accepted accounting principles (except Other
Operating Costs shall include amortization of capital improvements made
subsequent to the initial development of the Building which are designed with a
reasonable probability of improving the operating efficiency of the Building,
provided that such amortization costs shall not exceed reasonably expected
savings in operating costs resulting from such capital improvements.*
* Said costs to be charged to Lessee based on an amortization over the
useful life of said capital improvements.
(ii) "Lease Year" shall mean the twelve-month period commencing
January 1 and ending December 31, for the purposes of Section 9, Part 3 "Other
Operating Costs".
(iii) "Actual Operating Costs" shall mean the actual expenses paid or
incurred by Lessor for Operating Costs during any Lease Year of the Lease Term
hereof.
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(iv) "Actual Operating Costs Allocable to the Premises" shall mean the
Lessee's share of the Actual Operating Costs determining by Lessee's percentage
of the Building.
(v) "Estimated Operating Costs Allocable to the Premises" shall mean
Lessor's estimate of Operating Costs Allocable to the Premises for the following
Lease Year to be given by Lessor to Lessee pursuant to Section 9(c) below.
(b) "Operating Costs Base Amount". For purposes of this Section, the
Operating Costs Base Amount for the initial Lease Term shall be the actual costs
incurred by Lessor in the 1991 calendar year pursuant to Section 9(a) through
9(i) divided by the total building area as described in Section 1(c).
(c) Additional Rent for Estimated Increases in Operating Costs. Prior to
the commencement of each Lease Year during the Lease Term hereof, Lessor shall
furnish Lessee a written statement of the Estimated Operating Costs Allocable to
the Premises, for such Lease Year, and a calculation of the Additional Rent as
follows: One-twelfth (1/12) of the amount, if any, by which such amount exceeds
the Operating Costs Base Amount shall be Additional Rent payable by Lessee as
provided in Section 3 for each month during such Lease Year.
(d) Actual Operating Costs. Approximately 180 days after the close of each
Lease Year during the Lease Term hereof for which an estimated statement was
delivered to Lessee pursuant to subsection (c), or as soon thereafter as
practicable, Lessor shall deliver to Lessee a written statement setting forth
the Actual Operating Costs Allocable to the Premises during the preceding Lease
Year. If such costs for any Lease Year exceed Estimated Operating Costs
Allocable to the Premises paid by Lessee to Lessor pursuant to subsection (c),
Lessee shall pay the amount of such excess to Lessor as added Additional Rent
within thirty (30) days after receipt of such statement by Lessee. If such
statement shows such costs to be less than the amount paid by Lessee to Lessor
pursuant to subsection (c), then the amount of such overpayment by Lessee shall
be directly reimbursed by Lessor to Lessee or shall be credited by Lessor to the
next immediate Rent payable by Lessee.
(e) Determinations. The determination of Actual Operating Costs and
Estimated Operating Costs Allocable to the Premises shall be made by Lessor.
Lessor or its agent shall keep records in reasonable detail showing all
expenditures made for the items enumerated above, which records shall be
available for inspection by Lessee up to * days from receipt of the year end
reconciliation statement.
* one-hundred eighty (180)
(f) Beginning and End of Term. If this Lease shall commence or terminate
on a day other than the first or last day of a Lease Year, the amount of any
adjustment between estimated and Actual Costs Allocable to the Premises with
respect to the Lease Year in which such commencement or termination occurs shall
be prorated on the basis which the number of days of such Lease Year bears to
365; and any amount payable by Lessor to Lessee or Lessee to Lessor with respect
to such adjustment shall be payable within thirty (30) days after delivery by
Lessor
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to Lessee of the statement of Actual Costs Allocable to the Premises with
respect to such Lease Year.
(g) Further Adjustment. In the event the average occupancy level of the
Building for any Lease Year was or is not ninety percent (90%) of full
occupancy, then the Estimated Costs and Actual Costs for such year shall be
proportionately adjusted by Lessor to reflect those costs which would have
occurred had the Building been ninety percent (90%) occupied during such year.
Additionally, the Net Rentable Area of Building shall be similarly adjusted.
(h) Base Rent. Notwithstanding anything to the contrary in this Section 9,
the Rent payable by Lessee shall in no event be less than the Rent specified in
Section 1(g) of this Lease.
(i) Personal Property Taxes. Lessee shall pay, prior to delinquency, all
personal property taxes payable with respect to all property of Lessee located
on the Premises or the Building and promptly, upon request of Lessor, shall
provide written proof of such payment.
10. COMPLIANCE WITH LAW. Lessee shall not use the Premises or permit
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anything to be done in or about the Premises which will in any way conflict with
any law, statute, ordinance or governmental rule or regulation now in force or
which may hereafter be enacted or promulgated. Lessee shall at its sole cost
and expense promptly comply with all laws, statutes, ordinances and governmental
rules, regulations or requirements now in force or which may hereafter be in
force and with the requirements of any board of fire underwriters or other
similar body now or hereinafter constituted relating to or affecting the
condition, use or occupancy of the Premises, excluding structural changes not
related to or affected by Lessee's improvements or acts. The judgement of any
court of competent jurisdiction or the admission of Lessee in an action against
Lessee, whether Lessor be a party thereto or not, that Lessee has violated any
law, statute, ordinance or governmental rule, regulation or requirement, shall
be conclusive of that fact as between Lessor and Lessee.
11. ALTERATIONS. Lessee shall not make or suffer to be made any
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alterations, additions or improvements * to or of the Premises or any part
thereof without the written consent of Lessor, and any alterations, additions or
improvements to or of said Premises, except movable furniture and trade
fixtures, shall at once become a part of the realty and belong to the Lessor.
Any such alterations, additions or improvements shall be made by Lessee at
Lessee's sole cost and expense and any contractor or person selected by Lessee
to make the same must first be approved of in writing by Lessor.
* the cost of which is greater than $5000.
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12. REPAIR ** by entry hereunder Lessee accepts the Premises as being in
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good, sanitary order, condition and repair. Lessee shall at Lessee's sole cost
and expense keep the Premises and every part thereof in good condition and
repair, damage thereto by fire, earthquake, act of God or the elements excepted.
*** Lessee shall upon the Expiration Date or sooner termination of the Lease
Term hereof, surrender the Premises to Lessor in the same condition as when
received, ordinary wear and tear and damage by fire, earthquake, act of God or
the elements excepted. It is specifically understood and agreed that Lessor has
no obligation and has made no promises to alter, remodel, improve, repair,
decorate or paint the Premises or any part thereof and that no representations
respecting the condition of the Premises or the Building of which the Premises
are a part have been made by Lessor to Lessee except as specifically herein set
forth.
** Subject to Section 4, Acceptance of Premises,
*** Except for special improvements, unique to Lessee's business and/or
operations, made by Lessee or on Lessee's behalf in the Premises,
13. ABANDONMENT. Lessee shall not vacate or abandon the *** Premises at
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any time during the Lease Term, and if Lessee shall abandon, vacate or surrender
said Premises, or be dispossessed by process of law, or otherwise, any personal
property belonging to Lessee and left on the Premises shall be deemed to be
abandoned. Any expense incurred by Lessor in moving, storing or disposing of
such property shall be paid by Lessee upon demand of Lessor.
*** majority of the
14. LIENS. Lessee shall keep the Premises and the Building and
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surrounding property in which the Premises are situated, free from any liens
arising out of any work performed, materials furnished or obligations incurred
by Lessee.
15. * ASSIGNMENT AND SUBLETTING. ** Lessee shall not assign, transfer,
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mortgage, pledge, hypothecate or encumber this Lease, or any interest therein,
and shall not sublet the said Premises, or any part thereof, or any right or
privileged appurtenant thereto, or suffer any other person (the agents and
servants of Lessee excepted) to occupy or use the said Premises, or any portion
thereof, without the written consent of Lessor, *** A consent to one
assignment, subletting, occupation or use by any other person shall not be
deemed to be a consent to any subsequent assignment, subletting, occupation or
use by another person. Any such assignment or subletting without such consent
shall be void, and shall, at the option of Lessor, terminate this Lease or will
be considered a default of this Lease. This Lease shall not, nor shall any
interest therein, be assignable as to the interest of Lessee by operation of
law, without the written consent of Lessor. Any assignment of this Lease by
Lessee shall not relieve Lessee of its obligations hereunder, including its
obligation for payment of Rent and Additional Rent.
* For additional language of this Section see Attachment I; Special
Provisions No. 9
** Except as provided in Attachment I; Special Provisions No. 9
*** which consent shall not be unreasonably withheld.
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Without limiting the generality of the foregoing, Lessor may condition its
consent to any transfer upon satisfaction of all or any of the following
conditions:
(a) the net assets of the assignee, licensee, sublessee or other
transferee or permittee (collectively "transferee") immediately prior
to the transfer shall not be less than the greater of the net assets
of Lessee immediately prior to the transfer or the net assets of
Lessee at the time of the signing of this Lease;
(b) such transfer shall not adversely affect the quality and type of
business operation which Lessee has conducted theretofore;
(c) such transferee shall assume in writing, on a form acceptable to
Lessor, all of Lessee's obligations hereunder and Lessee shall provide
Lessor with a copy of such assumption/transfer document;
(d) Lessee shall pay to Lessor **** to reimburse Lessor for costs and
expenses incurred with respect to the transfer, including, without
limitation, review of financial materials, meetings with
representatives of transferor and/or transferee and preparation,
review, approval and execution of the required transfer documentation;
(e) Lessee to which the Premises were initially leased shall continue to
remain liable under this Lease for the performance of all terms,
including, but not limited to, payment of Rent and Additional Rent due
under this Lease;
(f) each of Lessor's Mortgagees shall have consented in writing to such
transfer; and
(g) such other conditions as Lessor may, in its sole and absolute
discretion, deem appropriate.
**** , prior to the effective date of transfer, all actual and reasonable
out-of-pocket expenses up to $1000 without prior approval of Lessee
16. WAIVER OF SUBROGATION. Lessor and Lessee do each herewith and hereby
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release and relieve the other from responsibility for, and waive their
entire claim of recovery for (i) any loss or damage to the real or personal
property of either located anywhere in the Premises or the Building and
including the Building itself, arising out of or incident to the occurrence
of any of the perils which may be covered by the fire and lightning
insurance policy, with extended coverage endorsement, in common use in the
Bellevue locality, or (ii) loss resulting from business interruption at the
Premises or loss of rental income from the Building, arising out of or
incident to the occurrence of any of the perils which may be covered by the
business interruption insurance policy and by the loss of rental income
insurance policy in common use in the Bellevue locality whether the loss or
damage is due to the negligence of either said parties, their agents or
employees, or any other cause. Each party shall obtain any special
endorsements, if
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required by their insurer, to evidence compliance with the aforementioned
waiver to the extent such waivers are reasonably available.
17. ACCIDENT - INDEMNITY. Lessee shall defend and indemnify Lessor and
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save it harmless from and against any and all liability, damages, costs, or
expenses, including attorneys' fees, arising from any act, omission, or
negligence of Lessee, or the officers, contractors, licensees, agents,
servants, employees, guests, or invitees of Lessee in or about the Premises
or the Building or appurtenances and by whomsoever caused, to any person or
property, occurred in or about the Premises or the Building or
appurtenances thereto provided that the foregoing provisions shall not be
construed to make Lessee responsible for loss, damage liability or expense
resulting from injuries to third parties caused by * negligence of
Lessor, or of any officer, contractor, licensee, agent, servant, employee,
guest ** or invitee of Lessor. Lessee, at its expense, shall obtain and
maintain in effect, as long as this Lease remains in effect and during such
other time as Lessee occupies the Premises or any part thereof, insurance
policies providing at least the following coverage:
* any act, omission or
** , other tenant
(a) Public liability insurance, including insurance against assumed or
contractual liability under this Lease, with respect to the Premises, to afford
protection with limits, per person and for each occurrence, of not less than One
Million Dollars ($1,000,000) combined single limit, with respect to personal
injury and death and property damage, such insurance to provide for no
deductible.
(b) All-risk property and casualty insurance, including theft, written
at replacement cost value and with replacement cost endorsement, covering all of
Lessee's personal property in the Premises; and
(c) If, and to the extent, required by law, worker's compensation or
similar insurance offering statutory coverage and containing statutory limits.
Such policies will be maintained with companies and in form reasonably
acceptable to Lessor and will be written as primary policy coverage and not
contributing with, or in excess of, any coverage which Lessor may carry. Lessee
will deposit the policy or policies of such required insurance or certificates
thereof with Lessor prior to the Commencement Date, which policies shall name
Lessor or its designee as additional named insured and shall also contain a
provision stating that such policy or policies shall not be cancelled or
materially altered except after thirty (30) days written notice to Lessor. All
such policies of insurance shall be effective as of the date Lessee occupies the
Premises and shall be maintained in force at all times during the Lease Term and
all other times during which Lessee shall occupy the Premises. In addition to
the foregoing insurance coverage, Lessee shall require any contractor retained
by it to perform work on the Premises to carry and maintain, at no expense to
Lessor, during such times as contractor is working in the Premises, a non-
deductible (i) comprehensive general liability insurance policy, including, but
not limited to, contractor's liability coverage, contractual liability coverage,
11
completed operations coverage, broad form property damage endorsement and
contractor's protective liability coverage, to afford protection with limits per
person and for each occurrence, of not less than One Million Dollars
($1,000,000), combined single limit, with respect to personal injury and death
and property damage, such insurance to provide for no deductible, and (ii)
worker's compensation insurance or similar insurance in form and amounts as
required by law.
Lessor shall not be liable for any loss or damage to person or property
sustained by Lessee, or other persons, which may be caused by the Building or
the Premises, or any appurtenances thereto, being out of repair, or by the
busting or leakage of any water, gas, sewer or steam pipe, or rupture or
shorting of any electric line or by theft, or by any act or neglect of any
tenant or occupant of the Building, or of any other person, or by any other
cause of whatsoever nature, * Lessee shall obtain insurance from a company with
a financial rating acceptable to Lessor to protect against the above stated
potential liabilities, with Lessor to be named as an additional insured.
* unless said loss or damage is caused by the act, omission or negligence
of Lessor.
18. PERSONAL PROPERTY TAX. Lessee agrees to pay or cause to be paid,
---------------------
before delinquency, any and all taxes levied or assessed upon all equipment,
furniture, fixtures and other personal property located in the Premises.
19. RULES AND REGULATIONS. Lessee shall faithfully observe and comply
---------------------
with the rules and regulations printed on or annexed to this Lease and all
reasonable modifications of and additions thereto from time to time put into
effect by Lessor notice of which shall be given to Lessee. Lessor shall not be
responsible to Lessee for the nonperformance by any other tenant or occupant of
the Building of any of said rules and regulations. **
** However Lessor shall use its best efforts to enforce the rules and
regulations for all tenants.
20. HOLDING OVER. Lessee agrees to vacate the Premises at the end of the
------------
Lease Term. If, with Lessor's consent, Lessee holds possession of the Premises
after the Lease Term, Lessee shall become a tenant from month to month upon the
terms herein specified but at a monthly rental equivalent to *** of the
then prevailing Rent paid by Lessee at the Expiration Date of the Lease Term
pursuant to all of the provisions of Sections 3 and 9 hereof, payable in advance
on or before or upon the first day of each month, and Lessee shall continue in
possession until such tenancy shall be terminated by Lessor, or until Lessee
shall have given to Lessor a written notice of his intention to terminate at
least one month prior to the date of termination of such monthly tenancy.
*** one-hundred fifty percent (150%)
21. ENTRY BY LESSOR. Lessor reserves and shall at any and all reasonable
---------------
times **** have the right to enter the Premises to inspect same, to supply
janitor service and any other service to be provided by Lessor to Lessee
hereunder, to submit said Premises to prospective purchasers or tenants, to post
notices of non-responsibility, and to alter, improve, or repair the
12
Premises and any portion of the Building of which the Premises are a part,
without abatement of Rent and Additional Rent, and may for that purpose erect
scaffolding and other necessary structures where reasonably required by the
character of the work to be performed, always providing the entrance to the
Premises shall not be blocked thereby, and further providing that the business
of Lessee shall not be interfered with unreasonably. Lessee hereby waives any
claim for damages for any injury or inconvenience to or interference with
Lessee's business, any loss of occupancy or quiet enjoyment of the Premises, and
any other loss occasioned **** For each of the aforesaid purposes,
Lessor shall at all times have and retain a key with which to unlock all of the
doors in, upon and about the Premises, excluding Lessee's vaults and safes, and
Lessor shall have the right to use any and all means which Lessor may deem
proper to open said doors in an emergency, in order to obtain entry to the
Premises, and any entry to the Premises obtained by Lessor by any of said means,
or otherwise, shall not under any circumstances be construed or deemed to be a
forcible or unlawful entry into, or a detainer of, the Premises, or an eviction
of Lessee from the Premises or any portion thereof.
**** after providing reasonable notice to Lessee except in cases of
emergency or to provide janitorial service.
**** by Lessor's reasonable exercise of the rights granted in this Section
21.
13
23. INSOLVENCY OR BANKRUPTCY. Either (a) the appointment of a receiver to
------------------------
take possession of all or substantially all of the assets of Lessee; or (b) an
assignment by Lessee for the benefit of creditors; or (c) any action taken or
suffered by Lessee under any insolvency, bankruptcy or reorganization act, shall
constitute a breach of this Lease by Lessee. Upon the happening of any such
event, this Lease shall terminate five (5) days after written notice of
termination from Lessor to Lessee. In no event shall this Lease be assigned or
assignable by operation of law or by voluntary or involuntary bankruptcy
proceedings or otherwise and in no event shall this Lease or any rights or
privileges hereunder be an asset of Lessee under any bankruptcy, insolvence or
reorganization proceedings.
If, despite the foregoing provisions of this Section 23, Lessee shall
voluntarily or involuntarily come under the jurisdiction of the Federal
Bankruptcy Code and thereafter Lessee or its trustee in bankruptcy, under the
authority of and pursuant to applicable provisions thereof, shall determine to
assign this Lease (and be so entitled to assign this Lease), Lessee agrees that
(i) Lessee or its trustee will provide to Lessor sufficient information enabling
it to independently determine whether Lessor will incur actual and substantial
detriment by reason of such assignment and (ii) "adequate assurance of future
performance" under this Lease, as that term is generally defined under the
Federal Bankruptcy Code, will be provided to Lessor by Lessee and its assignee
as a condition of said assignment.
24. DEFAULT. The occurrence of any one or more of the following events
-------
shall constitute a default and breach of this Lease by Lessee: (a) The vacating
or abandonment of the Premises by Lessee. (b) The failure by Lessee to make any
payment of Rent, Additional Rent, or any other payment required to be made by
Lessee hereunder, as and when due, where such failure shall continue for a
period of * days after written notice thereof by Lessor to Lessee. (c) The
failure by Lessee to observe or perform any of the covenants, conditions or
provisions of this Lease to be observed or performed by the Lessee, other than
described in (b) above, where such failure shall continue for a period of thirty
(30) days after written notice thereof by Lessor to Lessee; provided, however,
that if the nature of Lessee's default is such that more than thirty (30) days
are reasonably required for its cure, then Lessee shall not be deemed to be in
default if Lessee commences such cure within said thirty (30) day period and
thereafter diligently prosecutes such cure to completion.
* ten (10)
25. REMEDIES IN DEFAULT. In the event of any such material default or
-------------------
breach by Lessee, Lessor may at any time thereafter, with or without notice or
demand and without
14
limiting Lessor in the exercise of a right or remedy which Lessor may have by
reason of such default or breach:
(a) Terminate Lessee's right to possession of the Premises by any
lawful means, in which case this Lease shall immediately surrender possession of
the Premises to Lessor and Lessor may reenter and occupy the Premises. Reentry
and taking of possession pursuant to this paragraph shall not be construed as an
election to terminate the Lease unless a written notice of intention to so
terminate is provided to Lessee by Lessor. Upon such reentry, Lessor shall have
the right to relet all or any part of the Premises for any such term or terms
and conditions as Lessor in its sole discretion may deem advisable with the
right to complete construction of or make alterations and repairs to the
Premises. Lessee shall pay to Lessor in the event of such reletting, as soon as
ascertained, the costs and expenses incurred by Lessor in such reletting,
completion of construction or in making such alterations and repairs. Rentals
received by Lessor from such reletting shall be applied: first to the payment
of any indebtedness, other than Rent, due hereunder from Lessee to Lessor,
including costs of renovation and alteration of the Premises, reasonable
attorney fees and real estate commissions paid; second, to the payment of Rent
due and payable hereunder to any other payments required to be made by Lessee
hereunder; and the residue, if any, shall be held by Lessor in payment of future
Rent or damages as the same may become due and payable hereunder; and the
balance, if overdue amount), plus any attorneys' fees incurred by Lessor by any,
at the end of the Lease Term shall be retained by Lessor as agreed upon
compensation for its efforts in mitigating damages for Lessee. Should such
rentals received from time to time from such reletting during any month be a
lesser rental than herein agreed to by Lessee, Lessee shall pay such deficiency
to Lessor. Lessee shall pay such deficiency each month as the amount thereof is
ascertained by Lessor.
(c) Lessor shall also have the right upon Lessee's default to
terminate this Lease by giving Lessee written notice thereof, to accelerate all
Rent and Additional Rent payments due hereunder for the remaining Lease Term
hereof, or if any extension option has been exercised, to recover from Lessee
all damages incurred by Lessor by reason of Lessee's default including, but not
limited to, the cost of recovering possession of the Premises; expenses of
reletting, including renovation and alteration of the Premises, reasonable
attorney fees, any real estate commissions paid, along with all past due Rent,
Additional Rent and the worth at the time of the award by the court having
jurisdiction thereof of the amount by which the unpaid Rent and Additional Rent
for the balance of the Lease Term or, if an extension option has been exercised,
for the remainder of such option term, exceeds the amount of such Rent and
Additional Rent for the same period that Lessee proves could be reasonably
avoided; and that portion of the leasing commission paid by Lessor and
applicable to the unexpired term of this Lease. Unpaid installments of Rent,
Additional Rent or other sums shall bear interest from the date due at the rate
of *. In the event Lessee shall have abandoned the Premises, Lessor shall have
the option of (a) taking possession of the Premises and recovering
15
from Lessee the amounts specified in subparagraph (a) or (c) of this paragraph,
or (b) proceeding under the provisions of the following subparagraph (d).
* equal to Seafirst Bank, or a similar size financial institution,
prime rate plus 2%.
(d) Maintain Lessee's right to possession, in which case this Lease
shall continue in effect whether or not Lessee shall have abandoned the
Premises. In such event Lessor shall be entitled to enforce all of Lessor's
rights and remedies under this Lease, including the right to recover the Rent
and Additional Rent as it becomes due hereunder.
(e) Pursue any other remedy now or hereafter available to Lessor under
the laws or judicial decision of the State of Washington in which the Premises
are located.
26. LATE CHARGES. Lessee hereby acknowledges that late payment by Lessee
------------
to Lessor of Rent, Additional Rent or other sums due hereunder will cause Lessor
to incur costs not contemplated by this Lease, the exact amount of which will be
extremely difficult to ascertain. Such costs include, but are not limited to,
processing and accounting charges, and late charges which may be imposed upon
Lessor by terms of any mortgage or trust deed covering the Premises.
Accordingly, if any installment of Rent, Additional Rent or any sum due from
Lessee shall not be received by Lessor or Lessor's designee within ** days after
the due date then Lessee shall pay to Lessor a late charge equal to *** The
parties hereby agree that such late charges represent a fair and reasonable
estimate of the cost that Lessor will incur by reason of the late payment by
Lessee. Acceptance of such late charges by the Lessor shall in no event
constitute a waiver of Lessee's default with respect to such overdue amount, nor
prevent Lessor from exercising any of the other rights and remedies granted
hereunder.
* ten (10)
*** the lesser of five percent (5%) or the maximum amount permitted by law
27. RECONSTRUCTION. In the event the Premises or the Building of which
--------------
the Premises are a part are destroyed or damaged by any casualty, Lessor shall
have the option to repair or replace the damaged or destroyed part or to
terminate this Lease by giving written notice of its election to terminate
within * days of such event. If Lessor does not terminate this Lease, Lessor
shall have a period of at least 180 days to complete the repair or replacement
of the damaged or destroyed part from the date of the casualty. If Lessor
does not terminate, this Lease shall remain in full force and effect, except
that Lessee shall be entitled to a proportionate reduction of Rent while such
repairs are being made, such proportionate reduction to be based upon the extent
to which the making of such repairs shall interfere with the business carried on
by Lessee in the Premises.
* thirty (30)
16
Lessor shall not be required to repair any injury or damage by fire or
other cause, or to make any repairs or replacements of any panels, decoration,
office fixtures, railing, ceiling, floor covering, partitions, or any other
property installed in the Premises by Lessee. Any proceeds which may become
payable to Lessor under any policies for fire or other casualty insurance
applicable to the Building in which the Premises are located are to be applied
by Lessor either to repair any damage with respect to which such insurance
proceeds become payable or to reduce any outstanding indebtedness of Lessor
which is secured by a mortgage or deed of trust applicable to the real property
in which the Premises are located.
28. EMINENT DOMAIN. If all or any part of the Premises shall be taken or
--------------
appropriated by any public or quasi-public authority under the power of eminent
domain, Lessor shall have the right, at its option, to terminate this Lease, and
Lessor shall be entitled to any and all income, Rent, Additional Rent, award, or
any interest therein whatsoever which may be paid or made in connection with
such public use or purpose, and Lessee shall have no claim against Lessor for
the value of any unexpired Lease Term **. If a part of the Premises shall be so
taken or appropriated and Lessor shall not elect to terminate this Lease, the
Rent thereafter to be paid shall be equitably reduced. If any part of the
Building other than the Premises shall be so taken or appropriated, Lessor shall
have the right, at its option, to terminate this Lease and shall be entitled to
the entire award, as above provided.
** , Lessor agrees that they will not interfere with Lessee's right to
claim and recover from the condemning authority compensation for any
loss of its leasehold interest, the unamortized value of its tenant
improvements, and for loss to which Lessee may incur for Lessee's
moving expenses, business interruption, or taking of Lessee's personal
property.
29. SUBORDINATION. This Lease is subject and subordinate to the lien,
-------------
operation and effect of any sale/leaseback or lease/subleaseback transaction,
mortgage, or deed of trust to any bank, insurance company or other lending
institution, now in force, and to any first mortgage or first deed of trust
hereafter in force, and to any first mortgage or first deed of trust hereafter
in force, against the land/or Building of which the Premises are a part, and
upon any buildings hereafter placed upon the land of which the Premises are a
part, and to all advances made or hereafter to be made upon the security
thereof. This Lease shall also be subject and subordinate to any ground lease
now or hereinafter in force and applicable to the real property on or in which
the Premises are located. ***
*** If requested by Lessor, Lessee shall promptly execute any certificate
or other document in reasonable form confirming such subordination.
Notwithstanding the foregoing however, no such subordination shall be
effective nor shall Lessee be required to execute any such certificate
or other document unless the holder of the interest being subordinated
to agrees in writing to recognize the Lease and not to disturb
Lessee's quiet enjoyment of the Premises so long as Lessee is not in
default hereunder.
17
If any person or party shall succeed to all or part of Lessor's interest in
the Premises, whether by purchase, foreclosure, deed in lieu of foreclosure,
power of sale, cancellation or termination of lease (including, without
limitation, ground lease) or otherwise, whether voluntary, involuntary or by
operation of law, and if so requested or required by such successor in interest,
Lessee shall attorn fully and completely to such successor in interest and shall
recognize such successor in interest as Lessor under this Lease for the balance
of the Lease Term upon the same terms and conditions provided herein, and Lessee
shall execute such agreement in confirmation of such attornment as such
successor in interest shall reasonably request.
Notwithstanding anything contained herein to the contrary, the holder of
any mortgage or deed of trust may at any time subordinate the lien of its
mortgage or deed of trust to the operation and effect of this Lease without
obtaining the Lessee's consent thereto, by giving the Lessee written notice
thereof, in which event this Lease shall be deemed to be senior to such mortgage
or deed of trust without regard to the respective dates of execution and/or
recordation of such mortgage or deed of trust and this Lease and thereafter such
holder of such mortgage or deed of trust shall have the same rights as to this
Lease as it would have had were this Lease executed and delivered before the
execution of such mortgage or deed of trust.
The provisions of this Article to the contrary notwithstanding, and so long
as Lessee is not in default hereunder, this Lease shall remain in full force and
effect for the full Lease Term hereof.
30. SALE BY LESSOR. In the event of a sale or conveyance by Lessor of the
--------------
Building containing the Premises, the same shall operate to release Lessor from
any future liability upon any of the covenants or conditions, expressed or
implied, herein contained in favor of Lessee, * and in such event Lessee agrees
to look solely to the responsibility of the successor in the interest of Lessor
in and to this Lease. This Lease shall not be affected by any such sale, and
Lessee agrees to attorn to the purchaser or assignee.
* provided Lessor's successor agrees in writing to recognize the Lease and
not to disturb Lessee's quiet enjoyment of the Premises so long as Lessee
is not in default hereunder,
31. ATTORNEY'S FEES. In the event of any action or proceeding brought by
---------------
either party against the other under this Lease, the prevailing party shall be
entitled to recover its costs of suit and the fees of its attorneys in such
action or proceeding in such amount as the Court may adjudge reasonable.
32. SURRENDER OF PREMISES. The voluntary or other surrender of this Lease
---------------------
by Lessee, or a mutual cancellation thereof, shall not work a merger, and shall,
at the option of the Lessor, terminate all or any existing subleases or
subtenancies, or may, at the option of the Lessor operate as an assignment to it
of any or all such subleases or subtenancies.
33. WAIVER. The waiver by Lessor of any term, covenant or condition
------
herein contained shall not be deemed to be a waiver of such term, covenant or
condition or any subsequent breach of the same of any other term, covenant or
condition herein contained. The subsequent acceptance of Rent hereunder by
Lessor shall not be deemed to be a waiver of any
18
preceding breach by Lessee of any term, covenant or condition of this Lease,
other than the failure of Lessee to pay the particular Rent so accepted,
regardless of Lessor's knowledge of such preceding breach at the time of
acceptance of such Rent.
34.* NOTICE. All notices and demands which may or are required to be
------
given by either party to the other hereunder shall be in writing**. All notices
and demands by the Lessor to the Lessee shall be sent by United States certified
or registered mail, postage prepaid, addressed to the Lessee at the Premises, or
to such place as the Lessee may from time to time designate in a notice to the
Lessor. All notices and demands by the Lessee to the Lessor shall be sent by
United States certified or registered mail, postage prepaid, addressed to the
Lessor at the address specified in Section 1 (i), c/x Xxxxxxx XxXxxxxx &
Company, 000-000xx Xxxxxx X.X., Xxxxx 000, Xxxxxxxx, XX 00000 and Xxxx Xxxxxx
Realty Income Partnership II, L.P. c/o Xxxx Xxxxxx Realty, 74th Floor, Two Xxxxx
Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, or to such other person or place as the
Lessor may from time to time designate in a notice to the Lessee. In the event
of a default for which Lessee is claiming against Lessor, Lessee shall not
exercise any of rights until it shall have given notice by certified or
registered mail to the holder of any first lien on the Building and shall have
offered such lienholder a reasonable opportunity to cure such default, including
time to get possession of the Premises by an expeditious or trustee's sale if
this should be necessary to effect a cure.
* For additional language of this Section see Attachment I; Special
Provisions No. 12
** and shall be deemed received on the later of (1) the date of actual receipt
or (2) the third business day following deposit to the U.S. Mail.
35. DEFINED TERMS. The words "Lessor" and "Lessee" as used herein shall
-------------
include the plural as well as the singular. Words used in masculine gender
include the feminine and neuter. If there be more than one Lessee, the
obligations hereunder imposed upon Lessee shall be joint and several.
36. TIME. Time is of the essence of this Lease and each and all of its
----
provisions.
37. SUCCESSOR AND ASSIGNS. The covenants and conditions herein contained
---------------------
shall, subject to the provisions as to assignment, apply to and bind the heirs,
successors, executors, administrators and assigns of the parties hereto.
38. NET RENTABLE AREA. The "Net Rentable Area" shall refer to (i) in the
-----------------
case of each floor all of which is included in the Premises, all area within the
inside finish of the permanent exterior Building walls (measured from the Plane
of the interior surface of glass extended in a straight line or the inside face
of foundation walls) of the Building less all the area constituting Service
Areas of such floor (measured to the midpoint of the walls separating such area
from the Premises); and (ii) in the case of the Premises other than floor
referred to in clause (i) all area or areas on the particular floor measured
from the inside finish of the permanent exterior Building walls of the Building
to the midpoint of the walls separating such Premises from the areas leased by
or held for lease plus a pro rata share of the Common Areas. No deductions
shall be made in determining Net Rentable Area on account of columns or
projections necessary to the Building. "Service Areas" shall refer to areas on
the particular floor occupied by
19
building stairs, fire towers, elevator shafts, flues, vents, stacks, pipe shafts
and vertical ducts. "Common Areas" shall refer to areas on the particular floor
occupied by corridors accessible to others than Tenants, the common toilets,
vestibules, janitors closets, telephone closets, electrical closets and
mechanical rooms. The Net Rentable Areas of the Premises and the Building will
be determined by final measurements based upon the above. The Net Rentable Area
of the Building may be adjusted from time to time to reflect any modifications
to the building.
39. SEPARABILTY. Any provision of this Lease which shall prove to be
-----------
invalid, void or illegal shall in no way affect, impair or invalidate any other
provision hereof and such other provision shall remain in full force and effect.
40. LENDER PROVISION. Lessee agrees to make reasonable modifications of
----------------
the Lease provisions as maybe requested by lenders with a security interest in
the property, provided such modifications do not materially alter the business
terms of the Lease.
41. ESTOPPEL CERTIFICATE. Lessee agrees to execute from time to time as
--------------------
may be requested by lenders or potential purchases an estoppel certificate,
stating that the Lease is unmodified and in full force and effect, if that is
the case, the dates to which Rent payments are paid in advance and the status of
uncured Lessor defaults, if any.
42. BROKERS. Lessee warrants that it has had no dealings with any real
-------
estate broker or agents in connection with the negotiation of this Lease
excepting only Leibsohn, Boguch & Company and it knows of no other real estate
--------------------------
broker or agent who is entitled to a commission in connection with this Lease.
Lessor shall be held harmless from any claims which arise from dealings by
Lessee with any other brokers in regards to this Lease.
41. SPECIAL PROVISIONS. Special provisions of this Lease numbered 1
------------------
through 13 are attached hereto and made a part hereof.
If none, so state in the following space ____________________________.
IN WITNESS WHEREOF, Lessor and Lessee have executed this Lease as of the
day and year first above written.
LESSOR:
XXXX XXXXXX REALTY INCOME PARTNERSHIP II, L.P.
A Delaware Limited Partnership
By: XXXX XXXXXX REALTY INCOME PROPERTIES II, INC.
A Delaware Corporation its General Partner
By: /s/ XXXX X. XXXXXXX, XX.
--------------------------
Xxxx X. Xxxxxxx, Xx.
Its: President
20
LESSEE:
ASYMETRIX CORPORATION
A Washington Corporation
By: /s/ XXXXXX XXXXX
-------------------
Xxxxxx Xxxxx
Its: Executive Vice President
21
ACKNOWLEDGMENT OF LESSOR
------------------------
STATE OF NEW YORK )
) ss.
COUNTY OF NEW YORK )
On this 15th day of July, 1991, before the undersigned, a Notary Public in
and for the State of New York, personally appeared Xxxx X. Xxxxxxx, Xx., to me
known to be the President of XXXX XXXXXX REALTY INCOME PARTNERSHIP II, L.P., and
acknowledged said Lease to be the free and voluntary act and deed of said
corporation and an oath stated that he was authorized and did execute the said
Lease for the uses and purposes therein mentioned.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year first above written.
/s/ XXXXX X. XXXXX
------------------------------------
NOTARY PUBLIC in and for the State
of New York, residing at New York County
22
ACKNOWLEDGMENT OF LESSEE
------------------------
(Corporate)
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
On this 28th day of June, 1991, before me personally appeared Xxxxxx Xxxxx
and ________________ to me known to be the EXECUTIVE VICE PRESIDENT and
________________ respectively, of the corporation that executed the within and
foregoing respectively, of the corporation that executed the within and
foregoing Lease, and acknowledged the 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 they were authorized to execute said
instrument and that the seal affixed is the corporate seal of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year first above written.
/s/ NOTARY PUBLIC
---------------------------------
NOTARY PUBLIC in and for the State
of Washington, residing at Kirkland
(Individual)
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
On this day personally appeared before me ________________, to me known to
be the individual described in and who executed the foregoing Lease, and
acknowledged that he signed the same as his free and voluntary act and deed, for
the uses and purposes therein mentioned.
GIVEN under my hand and official seal this _____________ day of
_______________, 19___.
---------------------------------------
NOTARY PUBLIC in and for the State
of Washington, residing at
------------
23
ATTACHMENT I
SPECIAL PROVISIONS
------------------
1. RENTAL RATE
-----------
The base annual rental rate and Base Monthly Rent during the Lease Term
shall be as follows:
NET RENTABLE BASE ANNUAL BASE MONTHLY
MONTHS AREA RENTAL RATE RENT
------ ------------ ----------- ------------
1 - 6 19,547 $15.50 $25,248.21
6,079 $ 7.75 $ 3,926.02 $29,174.23
----------
7 - 30 25,626 $15.50 $33,100.25
31 - 60 25,626 $19.50 $41,642.25
2. EARLY OCCUPANCY
---------------
Upon substantial completion of tenant improvements and prior to the
Commencement Date of November 1, 1991, Lessee shall have the right to
occupy the expansion area of 6,079 rentable square fee (until 10/31/91 rent
free) at the northeast corner of the seventh (7) floor at no rental charge.
3. PARKING
-------
Lessee shall have the right to seventy-seven (77) parking spaces in the
Building garage at the following rates:
MONTHS RATE
------ ----
1 - 12 $ 0.00
13 - 60 $42.50
Additional parking spaces shall be provided at the ratio of three (3)
parking spaces per 1,000 usable square feet of expansion space leased.
4. TENANT IMPROVEMENT ALLOWANCE
----------------------------
For the purposes of refurbishing and improving Lessee's currently occupied
space, Lessor shall provide Lessee a tenant improvement allowance of $5.00
per usable square foot on 17,769 usable square feet. This amount is equal
to $88,845 and shall be paid upon certification that substantial completion
of tenant improvements has occurred net of any actual out of pocket costs
paid by Lessor on behalf of Lessee.
24
Should Lessee's tenant improvements on the currently occupied space cost
less than $88,845 then any such savings shall be paid to Lessee in cash
upon certification that substantial completion of tenant improvements has
occurred.
In addition Lessor shall provide a tenant improvement allowance of $20.00
per usable square foot on the expansion area consisting of 5,527 usable
square feet. This amount is equal to $110,540.
Lessor agrees that it shall competitively bid the tenant improvement work
to be performed, as outlined in Exhibit A, to the contractors of its choice
as well as to contractors of Lessee's choice subject to Lessor's approval
and a maximum of two such contractors each. If Lessee elects to use a
contractor of its choice Lessor agrees to pay such contractor directly
subject to compliance with City of Bellevue codes and the standard finishes
of the United Olympic Life Building as directed by Lessor.
Should Lessee's tenant improvement on the expansion space cost less than
$110,540 then any such savings shall be paid to Lessee in cash upon
certification that substantial completion of tenant improvement has
occurred.
All costs associated with the refurbishment of Lessee's currently occupied
space and the tenant improvements of Lessee's expansion space, including
but not limited to architectural fees, permit fees and tenant improvements
shall be paid for with the tenant improvement allowances described in this
section.
5. COMMON AREA REFURBISHMENT
-------------------------
Lessor at its sole expense, shall repair the common areas of the seventh
floor upon the execution of a mutually agreeable worklist between Lessor
and Lessee. The agreed upon worklist is attached hereto as Exhibit D.
6. EXPANSION RIGHTS
----------------
Lessee and/or its Affiliate(s) shall have the right to the following
expansion area subject to any pre-existing renewal rights of current
tenants by giving Lessor prior written notice on or before the notice dates
given below:
NOTICE
LEASE EXPIRATION DATE DATES SUITE NO. NRA
--------------------- ------ --------- ---
March 31,1992 July 31, 1991 710 1,043
June 30, 1993 Sept. 30, 1992 705 5,598
In the event any of the above mentioned suites become available prior to
the lease expiration date then Lessee shall have a "Right of First Offer"
as described in Section 7 below.
25
The lease terms on any expansion space shall be the then prevailing market
rate for comparable office space in the Bellevue Central Business District
not to exceed $19.50 per rentable square foot fully serviced, coterminus
with this Lease and a tenant improvement allowance of $4.00 per usable
square foot per year of the remaining Lease Term, pro-rated for any partial
year.
Should Lessee's tenant improvements on any such expansion space cost less
than $4.00 per usable square foot then any such savings shall be paid to
Lessee in cash upon certification that substantial completion of tenant
improvements has occurred.
7. RIGHT OF FIRST OFFER
--------------------
During the initial Lease Term of this Lease Lessee shall have the Right of
First Offer on any space which becomes available on the sixth (6) and
seventh (7) floors of the United Olympic Life Building.
Lessee may exercise its Right of First Offer in and during any calendar
year by giving Lessor written notice of its desire to lease additional
space. Upon receipt of such notification Lessor shall provide written
notice to Lessee of the anticipated vacancies in that calendar year. Upon
receipt of Lessor's notice Lessee may initiate an offer to lease such
space. However Lessor shall not be obligated to provide such space should
such space not be vacated as originally anticipated. The lease terms shall
be the then prevailing market rate for comparable office space in the
Bellevue Central Business District not to exceed $19.50 per rentable square
foot, coterminus with this Lease and a tenant improvement allowance of
$4.00 per usable square foot per year of the remaining Lease Term, pro-
rated for any partial year.
Should Lessee's tenant improvements on any such expansion space cost less
than $4.00 per usable foot then any such savings shall be paid to Lessee in
cash upon certification that substantial completion of tenant improvements
has occurred.
Lessor shall provide Lessee with a schedule of the expiration dates of the
leases on the sixth (6th) and seventh (7th) floors and shall use its best
effort to keep Lessee informed of any and all anticipated vacancies and
pending negotiations for space on the sixth (6) and seventh (7) floors and
Lessee shall make its best effort to keep Lessor informed of its specific
expansion needs.
Provided Lessor uses reasonable and good faith efforts to compels with
Lessee's requirements then the failure to comply with this provision shall
not constitute a default per the terms of this Lease.
8. RENEWAL OPTION
--------------
Lessee shall have the option to renew this Lease for a period of five (5)
years by providing Lessor with written notification of its intent to renew
no later than nine (9) months prior to the expiration of the initial Lease
Term. The rental rate shall be the then
26
prevailing rental rate for comparable office space located in the Bellevue
Central Business District. In addition, Lessor shall pay to Lessee a tenant
improvement allowance of $8.00 per usable square foot upon the effective
date of the renewal Lease term.
Should Lessee's tenant improvements on the expansion space cost less than
$8.00 per usable square foot then any such savings shall be paid to Lessee
in cash upon certification that substantial completion of tenant
improvements has occurred.
9. SUBLEASE RIGHTS
---------------
Lessee shall have full and unequivocal rights to sublease any or all of its
space under this Lease to an Affiliate of Lessee without Lessor's prior
approval.
Subleasing rights to any third party are subject to Section 15 of this
Lease. Any profits resulting from such sublease shall be equally divided
between the Lessee and Lessor. For the purposes of this Lease, Affiliate
shall be deemed to be any party under the common control of Lessee or
Lessee's management.
10. SERVICES AND UTILITIES
----------------------
Provided however, that if the Premises should become not reasonably
suitable for Lessee's use as a consequence of the cessation of utilities or
other services required to be provided to the Premises by Lessor that
continues for five (5) successive business days or more (an "Event
Interfering with Lessee's Use"), then Lessee shall be entitled to an
abatement of rent to the extent of the interference with Lessee's use of
the Premises occasioned thereby provided Lessor uses good faith efforts to
restore services as quickly as possible. Provided further, that if the
Event Interfering with Lessee's Use cannot be corrected or the damage
resulting therefrom repaired so that the Premises will be reasonably
suitable for Lessee's intended use within 120 days following the occurrence
of such event, then in addition to its other rights, Lessee shall be
entitled to terminate this Lease by written notice to Lessor.
11. RENTAL ADJUSTMENTS, OPERATING COSTS
-----------------------------------
The following provisions of Section 9 shall apply:
(j) Notwithstanding anything to the contrary in the Lease, in no
event shall Lessee have any obligation to pay directly, or to reimburse
Lessor for all or any portion of the following costs.
(1) Losses Caused by Others. The costs occasioned by the act,
-----------------------
omission, or violation of law by Lessor, or any other occupant of the
Building.
(2) Capital Improvements/Leases. The costs (including lease
---------------------------
payments and acquisition costs) relating to repairs, alterations,
improvements, and
27
equipment which must be capitalized under generally accepted accounting
principles unless such costs are reasonably anticipated to otherwise reduce
operating costs of the Building. In such a case the Lessor shall be able to
pass through to Lessee such costs over the useful life of the improvement.
Such passthrough amount to be limited to the reasonably estimated savings
achieved.
(3) Reimbursable Expenses. The costs for which Lessor has a
---------------------
right of reimbursement from others.
(4) Construction Defects. The costs to correct any construction
--------------------
defect in the Premises or the Building or to complete with any law or
regulation applicable to the Premises.
(5) Interior Improvement. The costs of any renovation,
--------------------
improvement, painting or redecorating of any portion of the Building not
made available for Lessee's use.
(6) Leasing Expenses. The fees, commissions, attorneys fees, and
----------------
other costs incurred in connection with negotiations or disputes with any
other occupant of the Building and costs arising from the violation by
Lessor or any occupant of the Building of the terms and condition of any
lease or other agreement.
(7) Debt. Interest, charges and fees incurred on debt (including
----
payments on mortgages and rent under ground leases).
(8) Promotion. Advertising or promotional costs.
---------
(9) Insurance. Increases in insurance costs related to the
---------
activities of any other occupant of the Building.
(10) Management. Wages, salaries, compensation, and labor burden
----------
for any employee not stationed at the Building on a full-time basis or any
fee, profit, or compensation retained by Lessor or its affiliates for
management and administration of the Building in excess of a standard
market management fee which would be charged by a professional management
service for the operation of comparable projects in the vicinity.
12. NOTICES
-------
Copies of all notices to Lessee shall also be sent to:
Xxxxx X. Xxxxxx
Xxxxxx, Pepper & Shefelman
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx Xxxxxxxxxx 00000
28
13. CONSENT/APPROVAL
----------------
No consents or approvals required or permitted pursuant to the terms of the
Lease shall be unreasonably withheld or unreasonably delayed.
29
ATTACHMENT II
RULES AND REGULATIONS ATTACHED TO
---------------------------------
AND MADE A PART OF THIS LEASE
-----------------------------
1. No advertisement, sign, lettering, notice or device shall be placed in or
upon Premises including windows, walls, and exterior doors except such as
may be approved in writing by Lessor.
2. Lettering upon the directory board and the doors as required by Lessee
shall be made by the sign company designated by Lessor.
3. No additional locks shall be placed upon any doors of Premises, and Lessee
agrees not to have any duplicate keys made without the consent of Lessor.
If more than two keys for any lock are desired, such additional keys shall
be paid for by Lessee. Upon termination of this Lease Lessee shall
surrender all keys.
4. No furniture, freight, supplies not carried by hand or equipment of any
kind shall be brought into or removed from Building without the consent of
Lessor. Lessor shall have the right to limit the weight and size and to
designate the position of all safes and other heavy property brought into
the Building. Such furniture, freight, equipment, safes and other heavy
property shall be moved in or out of Building only at the times and in the
manner permitted by Lessor. Lessor will not be responsible for loss of or
damage to any of the items above referred to, and all damage done to
Premises or Building by moving or maintaining any of such items shall be
repaired at the expense of Lessee. Any merchandise not capable of being
carried by hand shall utilize hand trucks equipped with rubber tires and
rubber side guards.
5. The entrances, corridors, stairways and elevators shall not be obstructed
by Lessee, or used for any other purpose than ingress or egress to and from
Premises. Lessee shall not bring into or keep any animal within Building,
or any bicycle or other type of vehicle.
6. Lessee will not use or permit to be used in said Premises anything that
will increase the rate of insurance on said Building or any part thereof,
nor anything that may be dangerous to life or limb; nor in any manner
deface or injure said Building or any part thereof; nor overload any floor
or part thereof; nor permit any objectionable noise or odor to escape or to
be emitted from said Premises, or do anything or permit anything to be done
upon said Premises in any way tending to create a nuisance or to disturb
any other tenant or occupant of any part of said Building; and Lessee, at
Lessee's expense, will comply with all health, fire and police regulations
respecting said Premises.
7. Lessee shall not xxxx, drive nails, screw or drill into woodwork or
plaster, or paint or in any way deface Building or any part thereof, or
Premises or any part thereof, or fixtures therein, without written consent
of Lessor. The expense of remedying any breakage, damage or stoppage
resulting from a violation of this rule shall be borne by Lessee.
30
8. Canvassing, soliciting and peddling in Building are prohibited and each
Lessee shall cooperate to prevent such activity.
9. The requirements of tenant will be attended to only upon application at the
main office of the Lessor. Lessor's employees shall not perform any work
or do anything outside of their regular duties, except on issuance of
special instructions from Lessor. If Lessor's employees are made available
for the assistance of any tenants, Lessor shall be paid for their services
by such tenants at reasonable hourly rates.
10. Lessor reserves the right to close and keep locked all entrance and exit
doors of the Building on Saturdays, Sundays and legal holidays and between
the hours of 6:00 p.m. of any day and 7:00 a.m. of the following day and
during such further hours as Lessor may deem advisable for the adequate
protection of Building and the property of the tenants.
11. Lessor shall at its cost and expense, operate the air conditioning system
from 8:00 a.m. until 6:00 p.m. on business days, except on Saturdays, when
the hours shall be from 8:00 a.m. until 1:00 p.m.
12. Lessee shall exercise care and caution to insure that all water faucets or
water apparatus and electricity are carefully and entirely shut off before
Lessee or its employees leave Building, so as to prevent waste or damage.
Lessee shall be responsible for any damage to Premises or Building and for
all damage or injuries sustained by other tenants or occupants of Building
arising from Lessee's failure to observe this provision.
13. Lessee shall obey all traffic and parking regulations as posted throughout
the Parking Area by Lessor.
14. The toilet rooms, urinals, wash bowls and other apparatus shall not be used
for any purpose other than that for which they were constructed and no
foreign substance of any kind whatsoever shall be thrown therein and the
expense of any breakage, stoppage or damage resulting from the violation of
this rule shall be borne by the Lessee who, or whose employees or invitees
shall have caused it.
15. Lessee shall not employ any person or persons other than the janitor of
Lessor for the purpose of cleaning the Premises unless otherwise agreed to
by Lessor. Except with the written consent of Lessor, no person or persons
other than those approved by Lessor shall be permitted to enter the
Building for the purpose of cleaning the same. Lessee shall not cause any
unnecessary labor by reason of Lessee's carelessness or indifference in the
preservation of good order and cleanliness. Lessor shall in nowise be
responsible to any Lessee for any loss of property on the Premises, however
occurring, or for any damage done to the effects of any Lessee by the
janitor or any other employee or any other person, except for loss or
damage due to any willful or negligent act of Lessor, its agent, employees
or contractors. Janitor service shall include ordinary dusting and
cleaning by the janitor assigned to such work and shall not include
cleaning of carpets or rugs, except normal vacuuming, or moving of
furniture or other special services.
31
16. Lessee shall not use, keep or permit to be used or kept any foul or noxious
gas or substance in the Premises, or permit or suffer the Premises to be
occupied or used in a manner offensive or objectionable to the Lessor or
other occupants of the Building by reason of noise, odors and/or
vibrations, or interfere in any way with other Lessees or those having
business therein, nor shall any animals or birds be brought in or kept in
or about the Premises or the Building.
17. Lessee shall not use or keep in the Premises or the Building any kerosene,
gasoline or inflammable or combustible fluid or material, or use any method
of heating or air conditioning in other than that supplied by Lessor.
18. Lessee agrees that it shall not, without Lessor's prior written consent,
keep on or around the leased Premises for use, disposal, treatment,
generation, storage or sale, any substances designated as, or containing
components designated as, hazardous, dangerous, toxic or harmful and/or
which are subject to regulation as hazardous substances by any federal,
state or local law. If Lessor does so consent, Lessee shall be fully
liable to Lessor for any and all clean-up costs and other charges imposed
by any government authority with respect to Lessee's use, disposal,
treatment, generation, storage and/or sale of hazardous substances, in or
about the leased Premises. Lessee shall indemnify and save Lessor harmless
from any costs incurred and/or assessed against Lessor as a result of
Lessee's use, disposal, treatment, generation, storage and/or sale of
hazardous substances.
19. Lessor will direct electricians as to where and how telephone and
electrical wires are to be introduced. No boring or cutting for wires will
be allowed without the consent of Lessor. The location of telephones, call
boxes and other office equipment affixed to the Premises shall be subject
to the approval of Lessor.
20. Each Lessee, upon the termination of the tenancy, shall deliver to the
Lessor the keys of offices, and rooms which shall have been furnished the
Lessee or which the Lessee shall have had made, and in the event of loss of
any keys so furnished, shall pay the Lessor therefor.
21. No Lessee shall lay linoleum, tile, carpet or other similar floor covering
so that the same shall be affixed to the floor of the Premises in any
manner except as approved by the Lessor. The expense of repairing any
damage resulting from a violation of this rule or removal of any floor
covering shall be borne by the Lessee by whom, or by whose contractors,
employees or invitees, the damage shall have been caused.
22. No furniture, packages, supplies, equipment or merchandise will be received
in the Building or carried up or down in the elevators, except between such
hours and in such elevators as shall be designated by the Lessor.
23. On Saturdays, Sundays and legal holidays, and on other days between the
hours of 6:00 p.m. and 7:00 a.m. the following day, access to the Building,
or to the halls, corridors, elevators or stairways in the Building, or to
the Premises may be refused unless the
32
person seeking access is known to the person or employee of the Building in
charge and he has a pass or is properly identified. The Lessor shall 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 invasion, mob, riot,
public excitement, or other commotion, the Lessor reserves the right to
prevent access to the Building during the continuance of the same by
closing the doors or otherwise, for the safety of the Lessees and
protection of property in the Building and the Building.
24. The number and location of vending machine or machines of any description
maintained or operated upon the Premises must be approved by Lessor.
25. The word "Building" as used herein means that building of which the
Premises are a part.
26. Chair floor pads must be used under all chairs with rollers or casters.
27. Lessor reserves the right to make such other and further regulations as in
its judgement may from time to time be needed or desirable for the safety,
care and cleanliness of Premises or Building and the preservation of good
order therein.
33
April 28, 1991
Xx. Xxxx X. Xxxxxxx
Controller
Asymetrix Corporation
000-000xx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Dear Xxxx:
Enclosed please find an original and fully executed First Amendment to
Lease for the seventh (7th) floor expansion area.
Please note a couple of items with regards to this document. First, I have
corrected a drafting error that was contained in the original amendment signed
by your organization. This error was located in the Special provisions section
under Item 1 Rental Rate. The original document incorrectly reflected the total
rent for the seventh month of the lease term. With this change the Rental Rate
description now coincides with the written description included in Item 1(d)
Commencement Dates. For your convenience I am enclosing copies of the original
and revised pages to highlight this correction. A second item you should note
is that I have attached Exhibit C to the document. This exhibit outlines the
floor plan given to us by Xxxxxx Xxxxx & Associates and should reflect your
intended design of the expansion premises. Please review this to verify that
such documentation is correct.
Should you have any questions or concerns on the enclosed then please
contact me at your convenience.
Sincerely,
/s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
cc: X.X. Xxxx
X.X. Xxxxxx
R. Liebsohn
Page 2
Lessee on said date then the Commencement Dates for Suites 705 and 710
only, shall be delayed one day for each day beyond March 31, 1992 said
space is delivered to Lessee as provided herein.
2. Special Provisions
------------------
The following sections of Attachment I to the Lease ("Special
Provisions) shall be modified as follows:
1. Rental Rate:
-----------
Shall be modified to read as follows:
Net Rentable Base Annual Base
Months Area Rental Rate Monthly Rent
------ ------------ ----------- ------------
1-6 19,547 $15.50 25,248.21
6,079 7.75 3,926.02 $29,174.23
---------
7-30 25,626 15.50 33,100.25
6,641 17.50 9,684.79 42,785.04
---------
31-60 32,267 19.50 54,433.88
4. Tenant Improvement Allowance:
-----------------------------
The following terms shall be added to the existing Lease language:
It is agreed between Lessor and Lessee that, for the purposes of
refurbishing and improving the expansion space, incorporated by this First
Amendment to Lease, that the tenant improvement allowances covering said
space shall be $143,977.00.
It is also agreed between Lessor and Lessee that should Lessee's actual
tenant improvement cost, for Suite 705 and 710, be less than $143,977.00
then any actual such savings shall be paid to Lessee, in cash, upon
certification that substantial completion of the tenant improvements has
occurred.
6. Expansion Rights
----------------
2
Page 3
It is deleted in it's entirety as Lessor, with the execution of this First
Amendment to Lease, has satisfied it's obligations.
14. Third Floor Option:
------------------
This new section shall be added to the Lease:
Lessor and Lessee acknowledge that Lessee has taken occupancy of Suite 390
which encompasses 4,352 net rentable square feet at the Building. Such
occupancy
3
FIRST AMENDMENT TO LEASE
This First Amendment to Lease is agreed to as of this the 15th day of
April, 1992 by and between Asymetrix Corporation, a Washington Corporation
("Lessee") and Xxxx Xxxxxx Realty Income Partnership II, L. P., a Delaware
limited partnership ("Lessor").
Background
----------
By Agreement of Office Lease, dated the 24th of May 1991 (the "Lease or
"Master Lease") Lessor leased to Lessee 25,626 square feet of office space
("Rentable Area") on the seventh (7th) floor of the office Building, which is
more specifically described in said Lease, located at 000 - 000xx Xxxxxxx, X.X.,
Xxxxxxxx, Xxxxxxxxxx (the "Building" or the "Property").
Whereas, Lessee and Lessor are desirous of further modifying the terms and
conditions of said Lease:
Now, therefore, for and in consideration of the mutual covenants and
agreements herein contained, and other good and valuable consideration, the
Lessee and Lessor mutually covenant and agree that the above described Lease
shall be modified as follows:
1. Lease Data and Exhibits
-----------------------
The following sections shall be amended and restated in their entirety:
(b) Premises: Consists of 32,267 net rentable square feet on the seventh
-------
(7) floor, to be known as Suite 717, which shall be inclusive of
--- ---
Suite 705 and 710, of the Building, as outlined on the floor plan(s)
attached hereto as Exhibit C.
(c) Floor Areas: The agreed net rentable area of thePremises is 32,267
------
net rentable square feet and of the Building is 213,000 square feet.
(d) Commencement Dates:
Rentable
Suite No. Area
--------- --------
November 1, 1991 717 25,626
May 1, 1992 705 5,598
May 1, 1992 710 1,043
However, for Suites 705 and 710 the Commencement Date is subject
to delivery by Lessor of the space, free of existing tenancies by
March 31, 1992. Should Lessor be unable to deliver said space to
Lessee on said date then the Commencement Dates for Suites 705
and 710 only, shall
be delayed one day for each day beyond March 31, 1992 said space
is delivered to Lessee as provided herein.
2. Special Provisions
------------------
The following sections of Attachment I to the Lease ("Special Provisions")
shall be modified as follows:
1. Rental Rate:
------------
Shall be modified to read as follows:
Base
Net Rentable Base Annual Monthly
Months Area Rental Rate Rent
------ ---- ----------- ----
1 - 6 19,547 $15.50 25,248.21
6,079 7.75 3,926.02 $29,174.23
---------
7 - 30 25,626 15.50 33,100.25
6,641 17.50 9,684.79 42,785.04
---------
31 - 60 32,267 19.50 52,433.88
4. Tenant Improvement Allowance:
-----------------------------
The following terms shall be added to the existing Lease language:
It is agreed between Lessor and Lessee that, for the purposes of
refurbishing and improving the expansion space, incorporated by this First
Amendment to Lease, that the tenant improvement allowances covering said space
shall be $143,977.00.
It is also agreed between Lessor and Lessee that should Lessee's actual
tenant improvement cost, for Suite 705 and 710, be less than $143,977.00 then
any such savings shall be paid to Lessee, in cash, upon certification that
substantial completion of the tenant improvements has occurred.
6. Expansion Rights
----------------
Is deleted in it's entirety as Lessor, with the execution of this First
Amendment to Lease, has satisfied it's obligations.
14. Third Floor Option:
------------------
This new section shall be added to the Lease:
2
Lessor and Lessee acknowledge that Lessee has taken occupancy of Suite 390
which encompasses 4,352 net rentable square feet at the Building. Such
occupancy has been achieved via a Sublease Agreement by Lessee and Candle
Corporation. Pursuant to the original lease and the sublease agreement, Lessee
shall have the right and privilege to occupy said space through July 22, 1995.
As part of this First Amendment to Lease the Lessor herein grants to Lessee
the option to extend it's occupancy in said space for a period effective the
termination date (July 22, 1995) covering Lessor's current occupancy of such
space through October 31, 1996. This right to extend is subject to the receipt
by Lessor from Lessee of written notice of the exercise of this option no later
than October 31, 1994. Such extended occupancy shall be upon the same terms and
conditions of this Lease agreement, which shall be documented by written
instrument between the parties, upon the exercising of this option by Lessee.
15. Temporary Space
---------------
This new section shall be added tot the Lease:
Lessor has agreed to allow Lessee to occupy 2,994 rentable square feet of
office space on the sixth (6th) floor ("Temporary Space") of the Building on a
temporary and short term basis. Tenant has agreed to accept the Temporary Space
on an "as is" basis. Tenant has further agreed to occupy said space in
accordance with all the terms and conditions of the existing Lease Agreement
except for the payment of Basic Monthly Rental and passthrough of Operating
Costs.
With regards to the Basic Monthly Rental and Operating Costs the Landlord
and Tenant agree that Tenant shall be subject to the following payment schedule
for the Temporary Space:
Rate Per Basic
Dates Square Foot Monthly Rental
----- ----------- --------------
February 1, 1992 - Termination Date $15.50 $3,867.25
Lessor and Lessee further agree that during the time period the Temporary
Space is occupied that Lessee shall not be subject to the imposition of charges
relating to Operating Costs.
Lessor and Lessee also agree that the terms of occupancy related to the
Temporary Space shall be on a month to month basis subject to termination by
either party thirty (30) days after written notice is delivered by one party to
the other.
Except as expressly provided herein, or that which is inconsistent
herewith, the Lease is hereby ratified by the Landlord and Tenant and all other
terms and conditions of the Lease shall remain in full force and effect.
3
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment
to Lease the day and year first set forth above.
Lessee: Lessor:
ASYMETRIX CORPORATION XXXX XXXXXX REALTY INCOME
a Washington corporation PARTNERSHIP II, L. P.
A Delaware limited partnership
/s/ Xxxxxx Xxxxx
_________________________________ XXXX XXXXXX REALTY INCOME
Xxxxxx Xxxxx PROPERTIES II, INC.
Executive Vice President a Delaware corporation
It's General Partner
/s/ Xxxx X. Xxxxxxx
_______________________________
Xxxx X. Xxxxxxx, Xx.
President
4
ACKNOWLEDGMENT OF LESSOR
------------------------
STATE OF NEW YORK )
) ss.
COUNTY OF NEW YORK )
On this 22nd day of April, 1992, before that undersigned, a Notary
Public in and for the State of New York, personally appeared Xxxx X. Xxxxxxx,
---------------
Jr. to me known to be the PRESIDENT of XXXX XXXXXX REALTY INCOME PROPERTIES
-- ---------
II, L.P., and acknowledged said Lease to be the free and voluntary act and
deed of said corporation and an oath stated that he was authorized and did
execute the said Lease for the uses and purposes therein mentioned.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year first above written.
/s/ Xxxxx X. Xxxxx
______________________________________
NOTARY PUBLIC in and for the State of
New York, residing at_________________
ACKNOWLEDGMENT OF LESSEE
------------------------
(Corporate)
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
On this ________ day of ___________, 19__, before me personally
appeared ______________ and _______________, to me known to be the ___________
and ____________________ respectively, of the corporation that executed the
within and foregoing Lease, and acknowledged the 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 they were authorized to execute
said instrument and that the seal affixed is the corporation seal of said
corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed by
official seal the day and year first above written.
_____________________________________
NOTARY PUBLIC in and for the State of
Washington, residing at _____________
5
SECOND AMENDMENT TO LEASE
This Second Amendment to Lease is agreed to as of this the 20 day of May,
1992 by and between Asymetrix Corporation, a Washington Corporation ("Lessee")
and Xxxx Xxxxxx Realty Income Partnership II, L. P., a Delaware limited
partnership ("Lessor").
Background
----------
By Agreement of Office Lease, dated the 24th of May 1991 (the "Lease" or
"Master Lease") and by the First Amendment to Lease dated the 16th day of April,
1992 Lessor has leased to Lessee 32,267 square feet of office space ("Rentable
Area") on the seventh (7th) floor of the office Building, which is more
specifically described in said Lease, located at 000 - 000xx Xxxxxxx, X.X.,
Xxxxxxxx, Xxxxxxxxxx (the "Building" or the "Property").
Whereas, Lessee and Lessor are desirous of further modifying the terms and
conditions of said Lease:
Now, therefore, for and in consideration of the mutual covenants and
agreements herein contained, and other good and valuable consideration, the
Lessee and Lessor mutually covenant and agree that the above described Lease
shall be modified as follows:
1. Lease Data and Exhibits
-----------------------
The following sections shall be amended and restated in their
entirety:
(b) Premises: Consists of 32,267 net rentable square feet on the
seventh (7th) floor, and 1,887 net rentable square feet on the
third (3rd) floor) (the "Second Amendment Expansion Space"), to
be known as Xxxxx 000 xxx Xxxxx 000 respectively, of the
Building. The Second Amendment Expansion Space shall be as
outlined on the floor plan(s) attached hereto as Exhibit C.
(c) Floor Areas: The agreed net rentable area of the total Premises
is 34,154 square feet and of the Building is 213,000 square feet.
(d) Commencement Dates:
The following terms shall be added to the existing Lease language:
Rentable
Suite No. Area
--------- --------
June 15, 1992 300 1,887
However, the Commencement Date above is subject to delivery by
Lessor of the space, free of existing tenancies by March 31,
1992. Should Lessor
be unable to deliver said space to Lessee on said date then the
Commencement Date shall be delayed one day for each day beyond
May 31, 1992 said space is delivered to Lessee.
2. Special Provisions
------------------
The following sections of Attachment I to the Lease ("Special Provisions")
shall be modified as follows:
1. Rental Rate:
------------
Shall be modified to read as follows:
Net Rentable Base Annual Base Monthly
Months Area Rental Rate Rent
------ ---------------- ---------------- ----------------
1 - 6 19,547 $15.50 25,248.21
6,079 7.75 3,926.02 $29,174.23
---------
7 - 8.5 25,626 15.50 33,100.25
6,641 17.50 9,684.79 42,785.04
---------
8.5 - 30 27,513 15.50 35,537.63
6,641 17.50 9,684.79 45,222.42
---------
31 - 60 34,154 19.50 55,500.25
4. Tenant Improvement Allowance:
-----------------------------
The following terms shall be added to the existing Lease language:
It is agreed between Lessor and Lessee that, for the purposes of
refurbishing and improving the expansion space, incorporated by this Second
Amendment to Lease, that the tenant improvement allowance covering said space
shall be $28,305.00.
It is also agreed between Lessor and Lessee that should Lessee's actual
tenant improvement cost be less than $28,305.00 then any such savings shall be
paid to Lessee, in cash, upon certification that substantial completion of the
tenant improvements has occurred.
2
IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment
to Lease the day and year first set forth above.
Lessee: Lessor:
ASYMETRIX CORPORATION XXXX XXXXXX REALTY INCOME
a Washington corporation PARTNERSHIP II, L. P.
A Delaware limited partnership
/s/ Xxxxxx Xxxxx
------------------------------ XXXX XXXXXX REALTY INCOME
Xxxxxx Xxxxx PROPERTIES II, INC.
Executive Vice President a Delaware corporation
It's General Partner
/s/ Xxxx X. Xxxxxxx, Xx.
_______________________________
Xxxx X. Xxxxxxx, Xx.
President
3
THIRD AMENDMENT TO LEASE
This Third Amendment to Lease is agreed to as of this 29th day of
September, 1992 by and between ASYMETRIX CORPORATION, a Washington Corporation
("Lessee") and XXXX XXXXXX REALTY INCOME PARTNERSHIP II, L. P., a Delaware
limited partnership ("Lessor").
Background
----------
By Agreement of office Lease, dated the 24th of May 1992 (the "Lease or
"Master Lease") and by the First Amendment to Lease dated the 16th day of April,
1992 and Second Amendment to Lease dated the 20th day of May, 1992, Lessor has
leased to Lessee 34,154 square feet of office space ("Rentable Area") on the
seventh (7th), and third (3rd) floors of the office Building, which is more
specifically described in said Lease, located at 000 - 000xx Xxxxxx XX,
Xxxxxxxx, Xxxxxxxxxx (the "Building" or the "Property").
Whereas, Lessee and Lessor are desirous of further modifying the terms and
conditions of said Lease:
Now, therefore, for and in consideration of the mutual covenants and
agreements herein contained, and other good and valuable consideration, the
Lessee and Lessor mutually covenant and agree that the above described Lease
shall be modified as follows:
1. Lease Data and Exhibits
-----------------------
The following sections shall be amended and restated in their
entirety:
(b) Premises: Consists of 32,267 net rentable square feet on the
seventh (7th) floor, 1,887 net rentable square feet on the third
(3rd) floor) (the "Second Amendment Expansion Space"), and 3,017
net rentable square feet on the sixth (6th) floor (Third
Amendment Expansion Space), to be known as Xxxxx 000, Xxxxx 000
and Suite 690 respectively, of the Building. The Third Amendment
Expansion Space shall be as outlined on the floor plan(s)
attached hereto as Exhibit C.
(c) Floor Areas: The agreed net rentable area of the total Premises
is 37,171 square feet and of the Building is 213,000 square feet.
(d) Commencement Dates:
The following terms shall be added to the existing Lease language:
Rentable
Suite No. Area
--------- --------
November 1, 1992 690 3,017
2. Special Provisions
------------------
The following sections of Attachment I to the Lease ("Special Provisions") shall
be modified as follows:
1. Rental Rate:
------------
Shall be modified to read as follows:
Base
Net Rentable Base Annual Monthly
Dates Months Area Rental Rate Rent
----- ------ ---- ----------- -------
11/0/91 - 1 - 6 19,547 $15.50 25,248.21
04/30/92 6,079 7.75 3,926.02 $29,174.23
---------
05/01/92 - 7 - 8.5 25,626 15.50 33,100.25
07/15/92 6,641 17.50 9,684.79 42,785.04
---------
07/15/92 - 8.5 - 12 27,513 15.50 35,537.63
10/31/92 6,641 17.50 9,684.79 45,222.42
---------
11/01/92 - 13 - 18 27,513 15.50 35,537.63
04/30/92 6,641 17.50 9,684.79
1,200 19.50 1,950.00 47,172.42
---------
05/01/93 - 19 - 30 27,513 15.50 35,537.63
04/30/94 6,641 17.50 9,684.79
3,017 19.50 4,902.63 50,125.05
---------
05/01/94 - 31 - 60 37,171 19.50 60,402.88
10/31/96
4. Tenant Improvement Allowance
----------------------------
The following terms shall be added to the existing Lease language:
It is agreed between Lessor and Lessee that, for the purposes of
refurbishing and improving the expansion space, incorporated by this Third
Amendment to Lease, that the tenant improvement allowance covering said
space shall be $43,888 or $16.00 per usable square foot on 2,743 usable
square feet.
It is also agreed between Lessor and Lessee that should Lessee's actual
tenant improvement cost be less than $43,888.00 then any such savings shall
be paid to Lessee,
2
in cash, upon certification that substantial completion of the tenant
improvements has occurred.
14. Extended Occupancy
------------------
The following section shall be added to the existing Lease language:
Lessor and Lessee acknowledge that Lessee has taken occupancy of Suite 409
which encompasses 9,373 net rentable square feet at the Building. Such
occupancy has been achieved via a Sublease Agreement by Lessee and XXX
Xxxxxxxxxxx. Pursuant to the original lease, the sublease agreement and
this Lease Agreement, Lessee shall have the right and privilege to occupy
said space through May 5, 1994.
In addition Lessor herein grants to Lessee the option to extend its
occupancy in said space for a period effective the termination date (May 5,
1994) covering Lessor's current occupancy of such space through October 31,
1997. This right to extend is subject to the receipt by Lessor from Lessee
of written notice of the exercise of this option no later than July 31,
1993. Such extended occupancy shall be upon the same terms and conditions
of the Lease Agreement between Lessee and Lessor dated May 24, 1991
including the payment of Rent on a per square foot basis which shall be at
the annual rate of $19.50 per rentable square foot or $15,231.13 per month
for the Extended Occupancy. The exercise of this option shall be
documented by written instrument between parties, upon the exercising of
this option by Lessee.
IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment
to Lease the day and year first set forth above.
Lessee: Lessor:
ASYMETRIX CORPORATION XXXX XXXXXX REALTY INCOME
a Washington corporation PARTNERSHIP II, L. P.
a Delaware limited partnership
/s/ XXXXXX XXXXX
_________________________________ XXXX XXXXXX REALTY INCOME
Xxxxxx Xxxxx PROPERTIES II, INC.
Executive Vice President a Delaware corporation
It's General Partner
/s/ XXXX X. XXXXXXX
_______________________________
Xxxx X. Xxxxxxx, Xx.
President
3
FOURTH AMENDMENT TO LEASE
-------------------------
THIS FOURTH AMENDMENT TO LEASE (the "Fourth Amendment") is agreed to as of
this the 27 day of August, 1993 by and between ASYMETRIX CORPORATION, a
Washington Corporation ("Lessee") and XXXX XXXXXX REALTY INCOME PARTNERSHIP II,
L.P., a Delaware limited partnership ("Lessor").
BACKGROUND
----------
BY FOURTH AMENDMENT OF OFFICE LEASE, dated the 24th of May, 1991 (the
"Lease" or "Master Lease") and by the First Amendment to Lease (dated the 16th
of April, 1992) and by the Second Amendment to Lease (dated the 20th of May,
1992) and by the Third Amendment to Lease (dated the 29th of September 1992),
Lessor has leased to Lessee 37,171 square feet of office space ("Rentable Area")
in the office building, which is more specifically described in said Lease,
located at 110-110th Avenue, N.E., Bellevue, Washington (the "Building" or the
"Property").
WHEREAS, Lessee and Lessor are desirous of further modifying the terms and
conditions of said Lease:
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements herein contained, and other good and valuable consideration, the
Lessee and Lessor mutually covenant and agree that the above described Lease
shall be modified as follows:
1. Lease Data and Exhibits. The following sections shall be amended and
-----------------------
restated in their entirety:
(b) Premises: Upon the effective date of this Fourth Amendment, the
Premises shall consist of the following specific areas:
Rentable
Square Feet
-----------
Seventh Floor:
. Initial Space
. First Amendment Expansion Space 25,626
6,641
Sixth Floor:
. Third Amendment Expansion Space
3,017
Fifth Floor:
. Fourth Amendment Expansion Space 8,125 (1)
Fourth Floor:
. Fourth Amendment Expansion Space 9,373
Third Floor:
. Second Amendment Expansion Space 1,887
. Fourth Amendment Expansion Space 4,352
. Fourth Amendment Expansion Space 7,689
------
TOTAL Rentable Area 66,710 (1)
======
(1) NOTE: Lessor and Lessee acknowledge that this amount is an estimated
figure which will be subject to additional planning and a final measurement with
the exact amount to be agreed upon between Lessor and Lessee.
The areas indicated above as the Fourth Amendment Expansion Spaces are
documented on the attached Exhibit(s) C, C-1 and C-2.
(c) Floor Areas: Upon the effective date of this Fourth Amendment, the
agreed Net Rentable Area of the Premises is 66,710 square feet and of the
Building is 213,000 square feet.
(d) Commencement Dates: The following terms shall be added to the existing
Lease language:
The effective date of this Fourth Amendment to Lease shall be the
earlier of the date of substantial completion of the Tenant Improvements
related to the Fourth Amendment Expansion Space or November 1, 1993.
Lessee and Lessor agree that upon establishment of the effective date
of this Fourth Amendment, such date, along with the final agreed upon
rentable square feet, will be memorialized by the parties through a
Commencement Date Letter Agreement.
(e) Expiration Date: Shall remain at October 31, 1996 for the 37,171 RSF
leased and occupied pursuant to the initial Lease and the First, Second and
Third Amendments to Lease. For the space leased pursuant to this Fourth
Amendment (the "Fourth Amendment Expansion Space") comprising 29,539 RSF,
the Expiration Date shall be October 31, 1998.
42. Brokers. The following shall be added to the existing Lease document:
-------
Lessee and Lessor warrant to each other that they have had no dealings
with any real estate broker or agents in connection with the negotiation of
this Fourth Amendment to Lease excepting only Leibsohn & Company and CB
------------------ --
Commercial and it knows of no other real estate broker or agent who is
----------
entitled to a commission in connection with this
-2-
lease. Lessee and Lessor shall be held harmless from any claims which arise
from dealings by Lessee or Lessor with any other brokers in regards to this
Lease.
43. Special Provisions. The following language shall be added to the
------------------
existing Lease document.
The Special Provisions of the Lease have been modified in certain
instances and such modifications are attached hereto as Attachment I and
are incorporated hereby and made a part of the overall Lease. Lessor and
Lessee agree that any such modifications shall supersede the prior Lease
terms.
Except as expressly provided herein, or that which is inconsistent
herewith, the Lease is hereby ratified by the Lessor and Lessee and all other
terms and conditions of the Lease shall apply during the remaining Lease Term.
LANDLORD: TENANT:
XXXX XXXXXX REALTY INCOME ASYMETRIX CORPORATION
PARTNERSHIP II, L.P., a Delaware limited a Washington corporation
partnership
XXXX XXXXXX REALTY INCOME
PROPERTIES II, INC. /s/ Xxxxxx Xxxxx
a Delaware corporation, ------------------------
its General Partner Xxxxxx Xxxxx
President
/s/ X. Xxxxxxxx Xxxxxxx, Jr.
____________________________
X. Xxxxxxxx Xxxxxxx, Jr.
President
-3-
LANDLORD ACKNOWLEDGMENT
-----------------------
STATE OF NEW YORK )
) ss.
COUNTY OF NEW YORK )
I certify that I know or have satisfactory evidence that X. Xxxxxxxx
Xxxxxxx, Jr. is the person who appeared before me, and said person acknowledged
that said person signed this instrument, on oath stated that said person was
authorized to execute the instrument and acknowledged it as the President of
Xxxx Xxxxxx Realty Income Properties II, Inc., the general partner of XXXX
XXXXXX REALTY INCOME PARTNERSHIP II, L.P., a Delaware limited partnership, to be
the free and voluntary act of such partnership for the uses and purposes
mentioned in the instrument.
Dated this 20th day of September, 1993.
/s/ Xxxxxxxx X. Xxxxxx
----------------------
(Signature of Notary)
XXXXXXXX X. XXXXXX
Notary Public, State of New York
No. 00-0000000
Qualified in New York County
Commission Expires June 10, 1995
--------------------------------
Notary public in and for the state of Washington,
residing at _____________________________________
My appointment expires __________________________
-4-
TENANT ACKNOWLEDGMENT
---------------------
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
I certify that I know or have satisfactory evidence that Xxxxxx Xxxxx
is the person who appeared before me, and said person acknowledged that said
person signed this instrument, on oath stated that said person was authorized to
execute the instrument and acknowledged it as the President of ASYMETRIX
CORPORATION, a Washington corporation, to be the free and voluntary act of such
corporation for the uses and purposes mentioned in the instrument.
Dated this 27th day of August, 1993.
/s/ Xxxxx Xxxxxx
-------------------------------
(Signature of Notary)
XXXXX XXXXXX
-------------------------------
Notary public in and for the state of Washington,
residing at Bellevue ___________________________
My appointment expires 12-9-95
-------------------------
-5-
ATTACHMENT 1
------------
SPECIAL PROVISIONS
Upon the effective date of this Fourth Amendment, the following sections of
Attachment I to the Lease ("Special Provisions") shall be modified as follows:
1. Rental Rate. Shall be modified as follows:
-----------
Total
Net Base Base Base
Rentable Annual Rate/ Monthly Monthly
Date Area SF Rent Rate
---------------------------------------------------------------------------------
effective date to 27,513 $15.50 $35,537.63
April 30, 1994 6,641 17.50 9,684.79
3,017 19.50 4,902.63
4,352 14.00 5,077.33
9,373 0.00 0.00(a)
15,814 18.25 24,050.46
------ ---------
66,710 $79,252.84
====== ==========
May 1, 1994 to 37,171 $19.50 $60,402.88
July 31, 1995 4,352 14.00 5,077.33
25,187 18.25 38,305.23 $103,785.44
------ ---------- ===========
66,710
======
August 1, 1995 to 37,171 $19.50 $60,402.88
October 31, 1996 29,539 18.25
------ 44,923.90 $105,326.78
66,710 ---------- ===========
======
November 1, 1996 29,539 $18.25 $44,923.90
to October 31, 1998 ====== ==========
(a) Base monthly Rent on said space to be received by Lessor from Teradata
Corporation, until April 30, 1994, in accordance with an existing lease
between these two parties.
3. Parking. The following terms shall be added to the existing Lease
-------
language:
Upon the effective date of this Fourth Amendment to Lease, Lessor grants to
Lessee the right to eighty-nine (89) additional parking spaces (limited to 45
spaces through May 31, 1994) in the Building parking garage. From the effective
date of this Fourth Amendment until October 31, 1996, except that Landlord
agrees to provide the 44 passes associated with the Teradata space
-6-
free for the month of May 1994, said spaces shall be provided at the monthly
rate of $47.50 per space.
Subsequent to October 31, 1996, such spaces shall be provided at the
prevailing fair market rate for said spaces which rate shall not exceed the
rates established for covering parking at comparable Bellevue CBD mid-rise
office buildings.
4. Tenant Improvement Allowance. The following terms shall be added to
----------------------------
the existing Lease language:
It is agreed between Lessor and Lessee that, for the purposes of
refurbishing and improving the expansion space, incorporated by this Fourth
Amendment to Lease, that Lessor's sole obligation shall be to provide a
tenant improvement allowance covering said space in the amount of
$441,125.00 (the "Tenant Improvement Allowance") computed in the following
manner:
Currently Occupied:
Third Floor Space: 3,956 USF (4,352 RSF) x $3.00 x 3.25 years = $ 38,571.00
Fourth Floor Space: 8,521 USF (9,373 RSF) x $3.00 x 4.50 years = 115,034.00
New Space:
Third Floor Space: 6,990 USF (7,689 RSF) x $4.00 x 5 years = 139,800.00
Fifth Floor Space 7,386 USF (8,125 RSF) x $4.00 x 5 years = 147,720.00
$441,125.00
===========
It is also agreed between Lessor and Lessee that should Lessee's
actual tenant improvement cost be less than the Tenant Improvement
Allowance then any such savings shall be paid to Lessee, in cash, upon
certification that substantial completion of the tenant improvements has
occurred.
7. Right of First Offer. The following language shall be added to and
--------------------
shall replace the existing Lease language:
During the initial Lease Term of this Lease, Lessee shall have the
Right of First Offer on any space which becomes available within the
Building.
Lessee may exercise its Right of First Offer in and during any
calendar year by giving Lessor written notice of its desire to lease
additional space. Upon receipt of such notification Lessor shall provide
written notice to Lessee of the anticipated vacancies in that calendar
year. Upon receipt of Lessor's notice, Lessee may initiate an offer to
lease such space. However, Lessor shall not be obligated to provide such
space should such space not be vacated as originally anticipated. The
lease terms shall be the then prevailing market terms for comparable office
space in the Bellevue Central Business District with a termination date of
October 31, 1998. Lessor shall grant Lessee a Tenant
-7-
Improvement Allowance of $3.00 per usable square foot per year of the
remaining Lease term, pro-rated for any partial year.
Should Lessee's tenant improvements on any such expansion space cost
less than the $3.00 per usable square foot allowance, then any such savings
shall be paid to Lessee in cash upon certification that substantial
completion of tenant improvements has occurred.
Upon request by Lessee, Lessor shall provide Lessee or its agents with
a schedule of the expiration dates of the leases within the Building and
shall use its best effort to keep Lessee informed of any and all
anticipated vacancies and pending negotiations for space in the Building
and Lessee shall make its best effort to keep Lessor informed of its
specific expansion needs.
Lessee agrees that any additional space leased and occupied pursuant
to this provision shall have an expiration date of October 31, 1998 and
shall not be subject to the Right of Cancellation as outlined in Item #16
of this Special Provision section. Lessor agrees that the above statement
is subject to two specific exceptions, these being Suite 340 comprising
1,656 RSF and Suite 385 comprising 2,179 RSF. It is agreed that should
Lessee expand and occupy said space by June 30, 1994 then such space shall
be subject to the existing terms and conditions of the Lease, as modified
through the Fourth Amendment to Lease, including the following:
Base Rent $18.25/RSF
Tenant Improvement Allowance $3.00/USF/Year
Expiration Date October 31, 1998
Subject to Right of Cancellation Option Yes
16. Right of Cancellation Option. Lessor hereby grants to Lessee the
----------------------------
option to cancel its longer term commitment (October 31, 1998) pertaining to the
Fourth Amendment Expansion Space as of October 31, 1996 upon the following terms
and conditions:
Lessee agrees that it shall provide Lessor with written notice of its
intent to exercise this option not later than January 31, 1996.
Lessee agrees to reimburse Lessor for 40% of the Tenant Improvement
Allowance and lease commission costs associated with the space leased and
occupied pursuant to this Fourth Amendment, covering the initial 29,539 RSF
plus 50% of any Tenant Improvement Allowance and lease commission costs for
Xxxxx 000 xxx Xxxxx 000 if such are leased subject to the provisions of
Section 7 above. Lessee agrees that it shall provide such reimbursement
not later than September 1, 1996.
17. After Hours HVAC.
----------------
Lessor agrees to provide after hours HVAC to Lessee upon request provided
such request is made by Lessee not later than 1:00 p.m. on a normal business
day, not later than 1:00 p.m. on
-8-
the day preceding a recognized holiday or not later than 1:00 p.m. on Friday for
additional service on a Saturday or Sunday.
To compensate Lessor for the cost of providing such after hours HVAC
service, Lessee agrees to reimburse Lessor at the rate of $17.00 per hour for
such service during the months of October through May, of any given year and at
the rate of $23.00 per hour for any such service required during the months of
June through September.
18. Superseding/Reaffirmation Provision. Lessor and Lessee acknowledge
-----------------------------------
that the following areas of the Building, which are addressed in the Fourth
Amendment, are presently subject to existing lease Fourth Amendments as follows:
Suite 390 4,352 RSF Direct Lease between Lessor and Lessee dated July
16, 1992.
Suite 490 9,373 RSF Direct Lease between Lessor and Teradata
Corporation dated March 3, 1989, and;
Sublease Fourth Amendment between Lessee (as
Tenant) and XXX Xxxxxxxxxxx, successor in interest to
Teradata Corporation (as "Landlord")
With regards to the above noted Rentable Square Feet of the Building, the
Lessor and Lessee agree to the following:
Suite 390 It is agreed that upon the effective date of this Fourth
Amendment to Lease, such Lease agreement shall
terminate and be superseded by this Lease agreement
as modified by this Fourth Amendment.
Suite 490 It is agreed that the existing Lease agreement and
sublease agreement will remain in effect until the
natural expiration of said documents.
It is further agreed that immediately upon said
expiration of the direct lease between Lessor and
Teradata Corporation dated March 3, 1989 the terms
and conditions of this Lease agreement as modified by
this Fourth Amendment shall be in full force and
effect with respect to such space.
-9-
FIFTH AMENDMENT TO LEASE
------------------------
THIS FIFTH AMENDMENT TO LEASE (THE "Fifth Amendment") is agreed to as of
this the 29th day of April, 1995 by and between ASYMETRIX CORPORATION, a
Washington Corporation ("Lessee") and XXXX XXXXXX REALTY INCOME PARTNERSHIP II,
L.P., a Delaware limited partnership ("Lessor").
BACKGROUND
----------
By Agreement of office Lease, dated the 24th of May, 1991 (the "Lease" or
"Master Lease") and subsequent amendments, as indicated below, Lessor leased to
Lessee 66,832 square feet of office space ("Rentable Area") on floors three (3),
four (4), five (5), six (6) and seven (7) of the office building, which is more
specifically described in said Lease, located at 110-110th Avenue, N.E. in
Bellevue, Washington (the "Building" or the "Property").
Subsequent to the initial Lease agreement, Lessor and Lessee have entered
into the following Lease Amendment(s):
Hereinafter referred to as: Dated:
-------------------------- ------
First Amendment to Lease April 16, 1992
Second Amendment to Lease May 20, 1992
Third Amendment to Lease September 29, 0000
Xxxxxx Xxxxxxxxx to Lease August 27, 1993
WHEREAS, Lessee and Lessor are desirous of further modifying the terms and
conditions of said Lease;
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements herein contained, and other good and valuable consideration, the
Lessee and Lessor mutually covenant and agree that the above described Lease
shall be modified as follows:
1. Lease Data and Exhibits. The following sections shall be amended and
-----------------------
restated in their entirety:
(b) Premises: Upon the Effective Date of this Fifth Amendment, the
Premises shall consist of the following specific areas:
Rentable
Square Feet
-----------
Seventh Floor:
. Initial Space 25,626
. First Amendment Expansion Space 6,641
Fifth Floor:
. Fourth Amendment Expansion Space 8,247
Fourth Floor:
. Fourth Amendment Expansion Space 9,373
Third Floor:
. Second Amendment Expansion Space 1,887
. Fourth Amendment Expansion Space 4,352
. Fourth Amendment Expansion Space 7,689
------
TOTAL Rentable Area 63,815
======
Lessee and Lessor acknowledge that the effect of this Fifth Amendment is to
return to Lessor and relieve Lessee of its obligation on 3,017 rentable square
feet on the sixth (6th) floor of the Building which had been previously
identified as the ""Third Amendment Expansion Space."
(c) Floor Areas: Upon the effective date of this Fifth Amendment, the
agreed Net Rentable Area of the Premises shall be 63,815 square feet and of
the Building is 213,000 square feet.
(d) Commencement Dates: The following terms shall be added to the
existing Lease language:
The effective date of this Fifth Amendment to Lease shall be May
1, 1995 (the "Effective Date").
(e) Expiration Date: Shall remain at October 31, 1996 for the 34,154
RSF leased and occupied pursuant to the initial Lease and the First, Second
and third Amendments to Lease. For the space leased pursuant to the Fourth
Amendment, comprising a total of 29,661 RSF, the Expiration Date shall be
October 31, 1998.
43. Special Provisions. The following language shall be added to the
------------------
existing Lease document:
The Special Provisions of the Lease have been modified in certain
instances and such modifications are attached hereto as Attachment I and
are incorporated hereby and made a part of the overall Lease. Lessor and
Lessee agree that any such modifications shall supersede the prior Lease
terms.
2
Except as expressly provided herein, or that which is inconsistent
herewith, the Lease is hereby ratified by the Lessor and Lessee and all other
terms and conditions of the Lease shall apply during the remaining Lease Term.
LESSOR: LESSEE:
XXXX XXXXXX REALTY INCOME ASYMETRIX CORPORATION
PARTNERSHIP II, L.P. a Washington corporation
a Delaware limited partnership
/s/ XXXX X. XXXXXXX
XXXX XXXXXX REALTY INCOME _____________________________
PROPERTIES II, INC. Xxxx X. Xxxxxxx
a Delaware corporation Executive Vice President
its General Partner
/s/ X. XXXXXXXX XXXXXXX
________________________
X. Xxxxxxxx Xxxxxxx, Jr.
President
3
ATTACHMENT I
------------
SPECIAL PROVISIONS
Upon the Effective Date of this Fifth Amendment, the following sections of
Attachment I to the Lease ("Special Provisions") shall be modified as follows:
1. Rental Rate. Shall be modified as follows:
-----------
Net Rentable Base Annual Base Monthly Total Base
Date Area Rate/SF Rent Monthly Rent
---- ---- ------- ---- ------------
May 1, 1995 to
July 31, 1995 34,154 $19.50 $55,500.25
4,352 14.00 5,077.33
25,309 18.25 38,490.77
------ ---------
63,815 $99,068.35
====== =========
August 1, 1995 to
October 31, 1996 34,154 $19.50 $55,500.25
29,661 18.25 45,109.44
------ ----------
63,815 $100,609.69
====== ==========
November 1, 1996
to October 31, 1998 29,661 $18.25 $45,109.44
====== =========
3. Parking. The following terms shall be added to the existing Lease
--------
language:
Upon the Effective Date of this Fifth Amendment to Lease, Lessor's
grant to Lessee for parking shall be reduced by twelve (12) parking spaces.
4
SIXTH AMENDMENT TO LEASE
------------------------
THIS SIXTH AMENDMENT TO LEASE (the "Sixth Amendment") is agreed to as of
this the 26th day of January, 1996 by and between ASYMETRIX CORPORATION, a
Washington Corporation ("Lessee") and XXXX XXXXXX REALTY INCOME PARTNERSHIP II,
L.P., a Delaware limited partnership ("Lessor").
BACKGROUND
----------
By Agreement of Office Lease, dated the 24 of May, 1991 and subsequent
amendments (collectively the "Lease" or "Master Lease"), as indicated below,
Lessor leased to Lessee 65,815 square feet of office space ("Rentable Area") on
floors three (3), four (4), five (5), six (6) and seven (7) of the office
building, which is more specifically described in said Lease, located at 000-
000xx Xxxxxx, X.X. in Bellevue, Washington (the "Building" or the "Property").
Subsequent to the initial Lease agreement, Lessor and Lessee have entered
into the following Lease Amendment(s):
Hereinafter referred to as: Dated:
-------------------------- -----
First Amendment to Lease April 16, 1992
Second Amendment to Lease May 20, 1992
Third Amendment to Lease September 29, 0000
Xxxxxx Xxxxxxxxx to Lease August 27,1993
Fifth Amendment to Lease April 29,1995
WHEREAS, Lessee and Lessor are decisions of further modifying the terms and
conditions of said Lease;
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements herein contained, and other good and valuable consideration, the
Lessee and Lessor mutually covenant and agree that the above described Lease
shall be modified as follows:
ATTACHMENT 1
------------
SPECIAL PROVISIONS
Upon the date of this Sixth Amendment, the following section of Attachment
I of the Lease shall be modified as follows:
8. Renewal Option. Lessee shall have the option to renew this lease for a
--------------
period of five (5) years by providing Lessor with written notification of its
intent to renew no later than March 31, 1996. The rental rate shall be the then
prevailing rental rate for comparable office space located in the Bellevue
Central Business District. In addition, Lessor shall pay to Lessee a tenant
improvement allowance of $8.00 per usable square foot upon the effective date of
the renewal Lease term.
Should Lessee's tenant improvements cost less than $8.00 per usable square
foot then any such savings shall be paid to Lessee in cash upon certification
that substantial completion of all tenant improvements has occurred.
16. Right of Cancellation Option. Lessor hereby grants to Lessee the
----------------------------
option to cancel its longer term commitment (for office space expiring October
31, 1998) pertaining to the Fourth Amendment Expansion Space as of October 31,
1996 upon the following terms and conditions:
Lessee agrees that it shall provide Lessor with written notice of its
intent to exercise this option not later than March 31, 1996.
Lessee agrees to reimburse Lessor for 40% of the Tenant Improvement
Allowance and lease commission costs associated with the space leased and
occupied pursuant to the Fourth Amendment, covering the initial 29,539 RSF
plus 50% of any Tenant Improvement Allowance and lease commission costs for
Xxxxx 000 xxx Xxxxx 000 if such are leased subject to the provisions of
Section 7 of the Special Provisions and documented in the Fourth Amendment.
Lessee further agrees that it shall provide such reimbursement not later
than September 1, 1996.
Except as expressly provided herein, or that which is inconsistent
herewith, the Lease is hereby ratified by the Lessor and Lessee and all other
terms and conditions of the Lease shall apply during the remaining Lease Term.
LANDLORD: TENANT:
Xxxx Xxxxxx Realty Income Partnership II, L.P. Asymetrix Corporation
a Delaware limited partnership a Washington corporation
/s/ XXXX X. XXXXXXX
Xxxx Xxxxxx Realty Income Properties II, Inc. --------------------------
a Delaware corporation,
its General Partner
/s/ XXXXXX X. XXXXXX
------------------------------
Xxxxxx X. Xxxxxx
Vice President
2
LESSOR ACKNOWLEDGMENT
---------------------
STATE OF NEW YORK )
) ss.
COUNTY OF NEW YORK )
I certify that I know or have satisfactory evidence that Xxxxxx X. Xxxxxx
is the person who appeared before me, and said person acknowledged that said
person signed this instrument, on oath stated that said person was authorized to
execute the instrument and acknowledged it as the Vice President of Xxxx Xxxxxx
Realty Income Partnership II, L.P., a Delaware limited partnership, to be the
free and voluntary act of such partnership for the uses and purposes mentioned
in the instrument.
Dated this 26th day of January, 1996.
---------------------------------------
/s/ XXXXXXXX X. EL HOUSHY
---------------------------------------
(Signature of Notary Public)
XXXXXXXX X. EL HOUSHY
---------------------------------------
(Legibly Print or Stamp Name of Notary)
Notary public in and for the state of New
York, residing at New York.
My appointment expires 10/19/97 .
-----------
3
LESSEE ACKNOWLEDGMENT
---------------------
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
I certify that I know or have satisfactory evidence that Xxxx X. Xxxxxxx is
the person who appeared before me, and said person acknowledged that said person
signed this instrument, on oath stated that said person was authorized to
execute the instrument and acknowledged it as VP Finance/OPS of Asymetrix
Corporation, to be the free and voluntary act of such partnership for the uses
and purposes mentioned in the instrument.
Dated this 24th day of January, 1996.
---------------------------------------
/s/ XXXXX XXXXXX
---------------------------------------
(Signature of Notary Public)
XXXXX XXXXXX
---------------------------------------
(Legibly Print or Stamp Name of Notary)
Notary public in and for the state of
Washington, residing at Bellevue.
My appointment expires 12-9-99.
4
702352
SEVENTH AMENDMENT TO LEASE
--------------------------
THIS SEVENTH AMENDMENT TO LEASE (the "Seventh Amendment") is agreed to as
of this the 31st day of March, 1996 by and between Asymetrix Corporation, a
Washington Corporation ("Lessee") and Xxxx Xxxxxx Realty Income Partnership II,
L.P., a Delaware limited partnership ("Lessor").
BACKGROUND
----------
By Agreement of Office Lease, dated the 24th of May, 1991 and subsequent
amendments (collectively the "Lease" or "Master Lease"), as indicated below,
Lessor leased to Lessee 63,815 square feet of office space ("Rentable Area") on
floors three (3), four (4), five (5) and seven (7) of the office building, which
is more specifically described in said Lease, located at 110-110th Avenue, N.E.
in Bellevue, Washington (the "Building" or the "Property").
Subsequent to the initial Lease agreement, Lessor and Lessee have entered
into the following Lease Amendment(s):
Hereinafter referred to as: Dated:
--------------------------- ------
First Amendment to Lease April 16, 1992
Second Amendment to Lease May 20, 1992
Third Amendment to Lease September 29, 0000
Xxxxxx Xxxxxxxxx to Lease August 27, 1993
Fifth Amendment to Lease April 29, 1995
Sixth Amendment to Lease January 26, 1996
WHEREAS, Lessee and Lessor are desirous of further modifying the terms and
conditions of said Lease;
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements herein contained, and other good and valuable consideration, the
Lessee and Lessor mutually covenant and agree that above described Lease shall
be modified as follows:
1. Lease Data and Exhibits. The following section shall be amended and
-----------------------
restated in their entirety:
(b) Premises: Upon the Effective Date of this Seventh Amendment, the
Premises shall consist of the following specific areas:
Rentable Premises
Square Feet Expiration Date
----------- ---------------
Seventh Floor . Initial Space 25,626 10/31/99
. First Amendment Space 6,641 00/00/00
Xxxxx Xxxxx . Xxxxxx Amendment Space 8,247 10/31/98
Fourth Floor: . Fourth Amendment Space 9,373 10/31/98
Third Floor . Second Amendment Space 1,887 10/31/99
. Fourth Amendment Space 4,352 10/31/98
. Fourth Amendment Space 7,689 10/31/98
-----
TOTAL Rentable Area 63,815
======
(c) Floor Areas: Upon the effective date of this Seventh Amendment,
the agreed Net Rentable Area of the Premises shall be 63,815 square feet
and of the Building shall be 213,000 square feet.
(d) Commencement Dates: The following terms shall be added to and
where applicable supersede the existing Lease language:
The effective date of this Seventh Amendment to Lease shall be April
1, 1996 (the "Effective Date").
(e) Expiration Date: Shall be October 31, 1999 for the 34,154 RSF
leased as identified above in 1(b). For the remaining space leased,
comprising a total of 29,661 RSF also as indicated in 1(b) above, the
Expiration Date shall be October 31, 1998.
15. Assignment and Subletting. The following language will be added to
-------------------------
this Section of the Lease and shall take effect as of the date of this Seventh
Amendment:
Lessee's right to assign its interests under the Lease or sublease all
or a part of the Premises are documented in this Section 15 of the Lease. It is
agreed between Lessor and Lessee that in addition to the terms previously
documented the following shall be added:
Should Lessee desire to assign the Lease or sublease all or any
portion of the Premises during the Term to a party other than an Affiliate of
Lessee, upon Lessee's request to Lessor for Lessor's approval of such assignment
or subletting in accordance with the provisions of Section 15 of the Lease,
Lessor may, in addition to its other rights under this Section elect to
terminate the Lease for the portion of the Premises noted in Lessee's request as
of the proposed effective date of such assignment or subletting. If Lessor so
desires, it shall also have the right to enter into direct negotiations with
such proposed assignee or subtenant for the achievement of a direct lease with
said group.
In the event the Premises or any part thereof has been vacated by
Lessee during the final twelve (12) months of the Term, Lessor shall have the
right to market the Premises to third party tenants and shall be entitled to
enter into a new lease agreement with such new tenant for all or any portion of
the Premises. In such event, Lessor shall be entitled to access to the Premises
during such period to construct improvements for such new tenant and the Lease
2
obligation of Lessee shall terminate as of the commencement date of such new
lease to the extent only that any part of the Premises is so re-leased.
Lessor and Lessee acknowledge that if Lessee vacates its Premises
early that it is in the best interest of the both the Lessor and the Lessee to
undertake the effort to achieve an immediate and early re-lease of the premises
whether it be in whole or in part. It is understood and agreed that both
parties may be simultaneously marketing the Premises and agree to cooperate with
one another and keep one another informed of their marketing activities.
Additionally, Lessee agrees that upon abandoning the Premises or any clearly
defined part thereof, that it will immediately notify the Lessor of such.
Lessor and Lessee shall reasonably cooperate with one another so as to
accommodate Lessee's potential need to vacate the Premises and obtain a
replacement tenant to offset its rental obligations under the Lease and Lessor's
desire to find a long term tenant for the Premises.
43. Special Provisions. The following language shall be added to the
------------------
existing Lease document:
The Special Provisions of the Lease have been modified in certain
instances and such modifications are attached hereto as Attachment I and
are incorporated hereby and made a part of the overall Lease. Lessor and
Lessee agree that any such modifications shall supersede the prior Lease
terms upon the Effective Date of this Seventh Amendment.
Except as expressly provided herein, or that which is inconsistent
herewith, the Lease is hereby ratified by the Lessor and Lessee and all other
terms and conditions of the Lease shall apply during the remaining and extended
Lease Term.
LESSOR: TENANT:
Xxxx Xxxxxx Realty Income Partnership II, L.P. Asymetrix Corporation
a Delaware limited partnership a Washington corporation
Xxxx Xxxxxx Realty Income Properties II, Inc. /s/ Xxxx X. Xxxxxxx
a Delaware corporation, _________________________
its General Partner Xxxx X. Xxxxxxx
Vice President
/s/ Xxxxxx X. Xxxxxx
______________________________________
Xxxxxx X. Xxxxxx
Vice President
3
ATTACHMENT I
------------
SPECIAL PROVISIONS
Upon the Effective Date of this Seventh Amendment, the following sections
of Attachment I to the Lease ("Special Provisions") shall be modified as
follows:
1. Rental Rate.
------------
Net Rentable Base Annual Base Monthly Total Base
Date Area Rate/SF Rent Monthly Rent
---- ---- ------- ---- ------------
August 1, 1995 to
October 31, 1996 34,154 $19.50 $55,500.25
29,661 18.25 45,109.44
------ ----------
63,815 $100,609.69
====== ===========
November 1, 1996
to October 31, 1998 63,815 $20.00 $106,358.33
====== ===========
November 1, 1998
to October 31, 1999 34,154 $20.00 $56,923.33
====== ==========
7. Right of First Offer. Lessor and Lessee agree that this Section of
--------------------
the Special Provisions to the Lease shall be deleted and shall no
longer be in effect as of the Effective Date of the Seventh Amendment.
8. Renewal Option. Lessee shall have the option to extend this Lease for
---------------
a period of five (5) years for all of its leased Premises (34,154 RSF
to October 31, 2004 and 29,661 RSF to October 31, 2003) by providing
Lessor with written notification of its intent to renew no later than
January 31, 1998. The rental rate shall be the then prevailing rental
rate for comparable office space located in the Bellevue Central
Business District. In addition, Lessor shall pay to Lessee a tenant
improvement allowance of $8.00 per usable square foot upon the
effective date of the renewal Lease term.
Should Lessee's tenant improvements cost less than $8.00 per usable square
foot then any such savings shall be paid to Lessee in cash upon certification
that substantial completion of all tenant improvements has occurred.
16. Right of Cancellation Option. It agreed by Lessor and Lessee that
----------------------------
this section of the Lease have no further force or effect and is therefore
deleted in its entirety.
