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EXHIBIT 10.3
UNION BANK OF CALIFORNIA CENTER
OFFICE LEASE
BETWEEN
XXXXXX SEATTLE INVESTORS I, L.L.C.,
A DELAWARE LIMITED LIABILITY COMPANY
LANDLORD
AND
N2H2, INC.,
A WASHINGTON CORPORATION
TENANT
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TABLE OF CONTENTS
Page
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1. Basic Lease Terms........................................................................................1
a) REFERENCE DATE OF LEASE.........................................................................1
b) TENANT..........................................................................................1
c) LANDLORD........................................................................................1
d) TENANT'S USE OF PREMISES........................................................................1
e) BUILDING........................................................................................1
f) PREMISES........................................................................................1
g) PREMISES AREA...................................................................................1
h) PROPERTY AREA...................................................................................1
i) TENANT'S PRO RATA SHARE.........................................................................1
j) TERM OF LEASE...................................................................................1
k) COMMENCEMENT DATE...............................................................................1
l) BASE RENT.......................................................................................2
m) BASE TAX YEAR...................................................................................2
n) BASE EXPENSE YEAR...............................................................................2
o) PREPAID RENT....................................................................................2
p) TOTAL SECURITY DEPOSIT..........................................................................2
q) PARKING.........................................................................................2
r) BROKER(S).......................................................................................2
s) GUARANTOR(S)....................................................................................2
2. Definitions..............................................................................................2
3. Premises.................................................................................................4
4. Term.....................................................................................................4
5. Base Rent................................................................................................4
6. Additional Rent..........................................................................................4
7. Condition of Premises....................................................................................8
8. Use and Rules............................................................................................9
9. Services and Utilities...................................................................................9
10. Alterations and Liens...................................................................................11
11. Repairs.................................................................................................12
12. Casualty Damage.........................................................................................13
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13. Insurance, Subrogation, and Waiver of Claims............................................................13
14. Condemnation............................................................................................14
15. Return of Possession....................................................................................15
16. Holding Over............................................................................................15
17. No Waiver...............................................................................................15
18. Attorneys' Fees and Jury Trial..........................................................................16
19. Personal Property Taxes, Rent Taxes and Other Taxes.....................................................16
20. Subordination, Attornment,. Estoppel and Holder Protection..............................................16
21. Assignment and Subletting...............................................................................17
22. Rights Reserved By Landlord.............................................................................19
23. Tenant's Default........................................................................................20
24. Landlord's Remedies.....................................................................................21
25. Landlord's Right to Cure................................................................................23
26. Conveyance by Landlord and Liability....................................................................23
27. Indemnification.........................................................................................24
28. Safety and Security Devices, Services and Programs......................................................25
29. Communications and Computer Lines.......................................................................25
30. Hazardous Materials.....................................................................................27
31. Notices.................................................................................................28
32. Real Estate Brokers.....................................................................................28
33. Security Deposit........................................................................................28
34. Entire Agreement........................................................................................29
35. Parking.................................................................................................29
36. Miscellaneous...........................................................................................29
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OFFICE LEASE
THIS LEASE is made between XXXXXX SEATTLE INVESTORS I, L.L.C., a
Delaware limited liability company ("Landlord") and N2H2, INC., a Washington
corporation ("Tenant").
1. BASIC LEASE TERMS.
a) REFERENCE DATE OF LEASE: March 12, 1999
b) TENANT: N2H2, INC.
i) Address (leased Premises) Xxxxx 0000 000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
c) LANDLORD: XXXXXX SEATTLE INVESTORS I, L.L.C.
i) (Address for Notices) x/x Xxxxxxxx Xxxx Xxxxxxx
Xxxxx 0000, Xxxxx Xxxx of California Center
Xxxxxxx, XX 00000
Attn.: Xxxx Xxxxxxx, Building Manager
Copy to: Xxxxxx Seattle Investors I, L.L.C.
x/x Xxxxxx Xxxxxx Xxxxxxx, X.X.X.
000 X. Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Attn.: Xxxx Xxxxxx
d) TENANT'S USE OF PREMISES: General Office Use.
e) BUILDING: Union Bank of California Center ("Building")
000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
as legally described on Exhibit A-1, subject to the
provisions herein contained.
f) PREMISES: the Premises shall be defined as that certain space
on the 34th floor, 35th floor and a portion of the 33rd floor
of the Building, known as Suite 3400 ("Premises"), as
illustrated on Exhibit A-2.
g) PREMISES AREA: the parties agree that the Rentable Area of the
Premises is 30,071 square feet.
h) PROPERTY AREA: the parties agree that the Rentable Area of the
Building is 536,356 square feet.
i) TENANT'S PRO RATA SHARE: 5.61%.
j) TERM OF LEASE: the term of this Lease shall be for sixty-eight
(68) months
k) COMMENCEMENT DATE: the commencement date for floor 33 and 34
shall mean that date which is the earlier of (i) Substantial
Completion of the Tenant Improvements described in the Work
Letter Agreement attached hereto as Exhibit B, if any, and the
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tender of possession of the Premises to Tenant; (ii) the date
that Tenant opens for business on the 33rd floor; or (iii)
April 1, 1999 ("Commencement Date").
The commencement date for floor 35 shall mean the date which
is the earlier (i) Substantial Completion of the Tenant
Improvements described in the Work Letter Agreement attached
hereto as Exhibit B, if any, and the tender of possession of
the Premises to Tenant; (ii) the date that Tenant opens for
business on the 35th floor, or (iii) November 1, 1999.
l) BASE RENT:
4/1/99 through 10/31/99: $25,933.46 per month.
11/1/99 through 12/31/99: $56,159.69 per month.
1/1/00 through 10/31/00: $56,770.22 per month.
11/1/00 through 12/31/00: $70,482.50 per month.
1/1/01 through 12/31/01: $71,912.75 per month.
1/1/02 through 12/31/02: $74,418.67 per month.
1/1/03 through 12/31/O3: $76,924.58 per month.
1/1/04 through 11/30/04: $79,430.50 per month.
m) BASE TAX YEAR: 1999.
n) BASE EXPENSE YEAR: 1999.
o) PREPAID RENT: N/A.
p) TOTAL SECURITY DEPOSIT: See Exhibit C, Section 3.
q) PARKING: Fifteen (15) stalls upon Commencement increasing on
November 1, 1999 to twenty-four (24) stalls if floor 33
terminated and twenty-seven (27) stalls if floor 33 retained.
r) BROKER(S):
i) Landlord: Xxxxxxx Xxxxxxx, Xxxxxxxx Xxxx Company
ii) Tenant: Xxxx Xxxxxxx, Washington Partners, Inc.
s) GUARANTOR(S): N/A.
Section 1 represents a summary of the basic terms of this
Lease. In the event of any inconsistency between the terms
contained in Section 1 and any specific clause of this Lease,
the terms of the more specific Cause shall prevail.
2. DEFINITIONS. Unless otherwise defined herein, the following terms shall
have the following meanings.
a) "Business Hours" shall mean Monday through Friday, 8:00 a.m.
to 6:00 p.m. and 8:00 a.m. to 12:00 p.m. on Saturdays
(excluding Holidays) or as may be amended in writing by
Landlord from time to time during the Term of this Lease.
b) "Common Areas" shall mean the Building's common entrances,
lobbies, restrooms, elevators, stairways and access-ways,
loading docks, ramps, drives and platforms and any passageways
and service-ways thereto, and the common pipes, conduits,
wires and appurtenant equipment serving the Premises; and
loading and unloading areas, trash areas, parking areas,
roadways, sidewalks, walkways, parkways, driveways and
landscaped areas and similar areas and facilities appurtenant
to the Building.
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c) "Default Rate" shall mean fifteen percent (15%) per annum, or
the highest rate permitted by applicable Law, whichever shall
be less.
d) "Holder" shall mean the holder of any Mortgage at the time in
question, and where such Mortgage is a ground lease, such term
shall refer to the ground lessor.
e) "Holiday" shall mean New Years Day, Presidents Day, Memorial
Day, Independence Day, Labor Day, Veterans' Day, Thanksgiving
Day, Christmas Day.
f) "Landlord" and "Tenant" shall be applicable to one or more
Persons as the case may be, and the singular shall include the
plural, and the neuter shall include the masculine and
feminine; and if there be more than one, the obligations
thereof shall be joint and several. For purposes of any
provisions indemnifying or limiting the liability of Landlord,
the term "Landlord" shall include Landlord's present and
future partners, beneficiaries, trustees, officers, directors,
employees, shareholders, principals, agents, affiliates,
successors and assigns.
g) "Law" shall mean all federal, state, county and local
governmental and municipal laws, statutes, ordinances, rules,
regulations, codes, decrees, orders and other such
requirements, applicable equitable remedies and decisions by
courts in cases where such decisions are considered binding
precedents in the state in which the Property is located, and
decisions of federal courts applying the Laws of such State.
h) "Mortgage" shall mean all mortgages, deeds of trust, security
deeds, ground or underlying leases, and other such security
instruments or encumbrances now or hereafter placed upon the
Property or Building, or any part thereof, and all renewals,
modifications, consolidations, spreaders, replacements or
extensions thereof, and all indebtedness now or hereafter
secured thereby and all interest thereon.
i) "Person" shall mean an individual, trust, partnership, joint
venture, association, corporation, limited liability company
and any other entity.
j) "Prime Rate" shall mean the prime rate (or base rate) reported
in the Money Rates column or section of the Wall Street
Journal as being the base rate on corporate loans at large
U.S. money center commercial banks (whether or not such rate
has actually been charged by any such bank) on the first day
on which the Wall Street Journal is published in the month
preceding the month in which the subject costs are incurred.
k) "Property" shall mean the Building, and any common or pubic
areas or facilities, easements, corridors, lobbies, sidewalks,
loading areas, driveways, landscaped areas, sky-walks, parking
garages and lots, and any and all other structures or
facilities operated or maintained in connection with or for
the benefit of the Building, and all parcels or tracts of land
on which all or any portion of the Building or any of the
other foregoing items are located, and any fixtures,
machinery, equipment, apparatus, Systems and Equipment,
furniture and other personal property located thereon or
therein and used in connection therewith, whether title is
held by Landlord or its affiliates. Possession of areas
necessary for utilities, services, safety and operation of the
Property, including the Systems and Equipment, fire stairways,
perimeter walls, space between the finished ceiling of the
Premises and the slab of the floor or roof of the Property
there above, and the use thereof together with the right to
install, maintain, operate, repair and replace the Systems and
Equipment, including any of the same in, through, under or
above the Premises In locations that will not materially
interfere with Tenant's use of the Premises, are hereby
excepted and reserved by Landlord, and not demised to Tenant.
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l) "Systems and Equipment" shall mean any plant, machinery,
transformers, duct work, cable, wires for Landlord use, and
other equipment, facilities, and systems designed to supply
heat, ventilation, air conditioning and humidity or any other
services or utilities, or comprising or serving as any
component or portion of the electrical, gas, steam, plumbing,
sprinkler, Landlord communications, alarm, security, or
fire/life/safety systems or equipment, or any other
mechanical, electrical, electronic, computer or other systems
or equipment for the Property.
3. PREMISES. Commencing on and continuing throughout the Term of this
Lease, Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord the Premises as defined in Section 1.g). The Premises shall be
improved as set forth in Work Letter, if at all, attached hereto and
made a part hereof as Exhibit B, as more fully described below.
4. TERM. The term of this Lease shall be for the period designated in
Section 1.j), commencing on the Commencement Date, and ending on the
expiration of such period, unless the term shall be sooner terminated
as hereinafter provided ("Term").
a) The Commencement Date shall not be extended or delayed on
account of any delays caused or contributed to by any acts or
omissions of Tenant. Rent shall be abated to the extent that
Landlord fails: (i) to substantially complete any improvements
to the Premises required to be performed by Landlord under any
separate agreement signed by both parties, or (ii) to deliver
possession of the Premises for any other reason, including but
not limited to holding over by prior occupants, except to the
extent that Tenant, its contractors, agents or employees in
any way contribute to either such failures. Except as
otherwise provided herein, this Lease shall not be voided or
voidable on account of any such delays.
b) If the Commencement Date is delayed, the Expiration Date shall
not be similarly extended, unless Landlord shall so elect (in
which case, the parties shall confirm the same in writing).
During any period that Tenant shall be permitted to enter the
Premises prior to the Commencement Date other than to occupy
the same (e.g., to perform alterations or improvements),
Tenant shall comply with all terms and provisions of this
Lease, except those provisions requiring the payment of Rent.
5. BASE RENT. The Base Rent for the Term of this Lease shall be as set
forth in Section 1.l) above, payable in advance on or before the first
day of each calendar month during the Term without offset or demand. If
the Term commences on a day other than the first day of a calendar
month, or ends on a day other than the last day of a calendar month,
then the Base Rent for such month shall be prorated on the basis of
1/30th of the monthly Base Rent for each day of such month.
6. ADDITIONAL RENT.
a) TAXES. Tenant shall, in addition to all other sums due under
this Lease, pay Landlord an amount equal to Tenant's Pro rata
Share of Taxes, as defined below, in excess of the amount of
Taxes paid by Landlord during the base tax year set forth in
Section 1.m) ("Base Tax Year").
i) "Taxes" shall mean all federal, state, county, or
local governmental or municipal taxes, fees, charges
or other impositions of every kind and nature,
whether general, special, ordinary or extraordinary,
including without limitation, real estate taxes,
general and special assessments, transit taxes, water
and sewer rents taxes based upon the receipt of rent
including gross receipts or sales taxes applicable to
the receipt of rent or service or value added taxes
(unless required to be paid by Tenant under Section
19, personal property taxes imposed upon the
fixtures, machinery, equipment, apparatus, Systems
and Equipment, appurtenances, furniture and other
personal property used in connection with the
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Property which Landlord shall pay during any calendar
year, any portion of which occurs during the Term
(without regard to any different fiscal year used by
such government or municipal authority) because of or
in connection with the ownership, leasing and
operation of the Property. Notwithstanding the
foregoing, there shall be excluded from Taxes all
excess profits taxes, franchise taxes, gift taxes,
capital stock taxes, inheritance and succession
taxes, estate taxes, federal and state income taxes,
and other taxes to the extent applicable to
Landlord's general or net income (as opposed to
rents, receipts or income attributable to operations
at the Property) and any fees, penalties or interest
added to any tax because of late payment, non-payment
or otherwise. If the method of taxation of real
estate prevailing at the time of execution hereof
shall be, or has been altered, so as to cause the
whole or any part of the taxes now, hereafter or
heretofore levied, assessed or imposed on real estate
to be levied, assessed or imposed on Landlord, wholly
or partially, as a capital levy or otherwise, or on
or measured by the rents received therefrom, then
such new or altered taxes attributable to the
Property shall be included within the term "Taxes"
except that the same shall not include any
enhancement of said tax attributable to other income
of Landlord. Any expenses incurred by Landlord in
attempting to protest, reduce or minimize Taxes shall
be included in Taxes in the calendar year such
expenses are paid. Tax refunds shall be deducted from
Taxes in the year they are received by Landlord. If
Taxes for the Base Tax Year are reduced as the result
of protest, or by means of agreement, or as the
result of legal proceedings or otherwise, Landlord
may adjust Tenant's obligations for Taxes in all
years following the Tax Base Year, and Tenant shall
pay Landlord within thirty (30) days after notice any
additional amount required by such adjustment for any
such years or portions thereof that have theretofore
occurred. If Taxes for any period during the Term or
any extension thereof, shall be increased after
payment thereof by Landlord, for any reason,
including without limitation error or reassessment by
applicable governmental or municipal authorities,
Tenant shall pay Landlord upon demand Tenant's Pro
rata Share of such increased Taxes. Tenant shall pay
increased Taxes whether Taxes are increased as a
result of increases in the assessments or valuation
of the Property (whether based on a sale, change or
refinancing of the Property or otherwise), increases
in the tax rates, reduction or elimination of any
rollbacks or other deductions available under current
law, scheduled reductions of any tax abatement, as a
result of the elimination, invalidity or withdrawal
of any tax abatement, or for any other cause
whatsoever. Notwithstanding the foregoing, if any
Taxes shall be paid based on assessments or bills by
a governmental or municipal authority using a fiscal
year other than a calendar year, Landlord may elect
to average the assessments or bills for the subject
calendar year, based on the number of months of such
calendar year included in each such assessment or
xxxx.
b) OPERATING EXPENSES. Tenant shall, in addition to all other
sums due under this Lease, pay Landlord an amount equal to
Tenant's Pro rata Share of Operating Expenses, as defined
below, in excess of the amount of Operating Expenses paid by
Landlord during the base expense year set forth in Section
1.n) ("Base Expense Year").
i) "Operating Expenses" shall mean all costs of
operation and maintenance attributable to the
Property ("Operating Expenses") as determined by
standard accounting practices, including, without
limitation, the following costs by way of
illustration: Common Area operation and maintenance
charges; water and sewer charges; the cost of
insurance (including any deductible amount) which
Landlord elects to maintain with respect to the
Property including the parking facilities therein,
and/or the operation thereof, including, without
limitation, rental income insurance and all other
forms of insurance; utilities; janitorial services;
security; labor; utilities surcharges; all
amortization of the costs, including financing costs
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for capital expenditures, prorated on a monthly
basis, (i) required by a governmental entity for
energy conservation, life safety or other purposes,
or (ii) made by Landlord to reduce Operating
Expenses, shall be amortized over the useful life of
such improvements in accordance with such reasonable
life and amortization schedules as shall be
determined by Landlord in accordance with generally
accepted accounting principles, with interest on the
unamortized amount at one percent (1%) in excess of
the Prime Rate, or such higher rate as may have been
paid by Landlord on borrowed funds; costs incurred in
the management of the Property, if any; the fair
market rental value of any onsite building management
office, management fees for independent contractors
performing management services, wages and salaries of
employees used in the management, operation and
maintenance of the Property, payroll taxes and
similar governmental charges with respect thereto and
administrative fees; legal and accounting fees
incurred in connection with the operation,
maintenance and administration of the Property which
are acceptable under generally accepted accounting
principles; air conditioning; waste disposal;
heating; ventilating; elevator maintenance; supplies;
materials; equipment; tools; and maintenance costs
and upkeep of all Common Areas, including, without
limitation, the cost and expense of maintenance,
repair operations and upkeep of the parking
facilities in the Property (to the extent that costs
of such maintenance, repair operations and upkeep is
not paid by any operator of the parking facilities
pursuant to a parking management contract with
Landlord). Operating Expenses shall not include (i)
the initial construction costs of the Property, the
costs of providing the Tenant Improvements to Tenant
or any other tenant, or the depreciation of such
costs; (ii) debt service (including, without
limitation, interest, principal and any impound
payments) required to be made on any Mortgage
recorded with respect to all or any part of the
Property other than financing costs for capital
expenditures set forth in the immediately preceding
sentence; (iii) any rent payable under any ground
lease now or hereafter affecting the Property; (iv)
capital expenditures except as specifically included
in the immediately preceding sentence; and (v)
specific costs incurred for the account of specific
tenants of the Property. Notwithstanding the
foregoing definitions, as to each specific category
for which one or more tenants of the Property either
pays directly to third parties or specifically
reimburses Landlord (e.g., separately metered
utilities, separately contracted janitorial service,
property taxes directly reimbursed to Landlord,
etc.), such tenant's payments with respect thereto
shall not be included in Operating Expenses for
purposes of this definition and, for each such
specific category of Operating Expenses, Tenant's
Percentage shall be adjusted by excluding from the
calculation thereof the rentable area of all tenants
paying such category of Operating Expenses directly
to third parties or reimbursing the same directly to
Landlord. Operating Costs should exclude: advertising
and promotional costs: leasing commissions; space
planning costs; costs incurred in leasing,
negotiating, resolving lease disputes with tenants,
enforcing leases; costs of obtaining permits and
constructing tenant improvements; asbestos removal;
costs associated with Building fire code violations;
property manager office space greater than 5,000
usable square feet; fines, penalties or interest
charges.
c) TENANT'S PRO RATA SHARE. "Tenant's Pro rata Share" of Taxes
and Operating Expenses shall be the rentable area of the
Premises divided by the rentable area of the Property on the
last day of the calendar year for which Taxes or Operating
Expenses are being determined. Except as provided expressly to
the contrary herein, the Rentable area of the Property" shall
include all rentable area of all space leased or available for
lease at the Property, which Landlord may reasonably
re-determine from time to time, to reflect re-configurations,
additions or modifications to the Property. If the Property or
any development of which is it a part, shall contain
non-office uses, Landlord shall have the right to determine in
accordance with sound accounting and management principles,
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Tenant's Pro rata Share of Taxes and Operating Expenses for
only the office portion of the Property or of such
development, in which event, Tenant's Pro rata Share shall be
based on the ratio of the rentable area of the Premises to the
rentable area of such office portion. Similarly, if the
Property shall contain tenants who do not participate in all
or certain categories of Taxes or Operating Expenses on a pro
rata basis, Landlord may exclude the amount of Taxes or
Operating Expenses, or such categories of the same, as the
case may be, attributable to such tenants, and exclude the
rentable area of their premises, in computing Tenant's Pro
rata Share.
d) MANNER OF PAYMENT. Taxes and Operating Expenses shall be paid
in the following manner:
i) Landlord may reasonably estimate in advance the
amounts Tenant shall owe for Taxes and Operating
Expenses for any full or partial calendar year of the
Term. In such event, Tenant shall pay such estimated
amounts, on a monthly basis, on or before the first
day of each calendar month, together with Tenant's
payment of Base Rent. Such estimate may be reasonably
adjusted from time to time by Landlord.
ii) Within one hundred twenty days (120) days after the
end of each calendar year, or as soon thereafter as
practicable, Landlord shall provide a statement (the
"Statements") to Tenant showing: (a) the amount of
actual Taxes and Operating Expenses for such calendar
year, with a listing of amounts for major categories
of Operating Expenses, and such amounts for the Base
Years, (b) any amount paid by Tenant towards Taxes
and Operating Expenses during such calendar year on
an estimated basis, and (c) any revised estimate of
Tenants obligations for Taxes and Operating Expenses
for the current calendar year.
iii) If the Statement shows that Tenant's estimated
payments were less than Tenant's actual obligations
for Taxes and Operating Expenses for such year,
Tenant shall pay the difference. If the Statement
shows an increase in Tenant's estimated payments for
the current calendar year, Tenant shall pay the
difference between the new and former estimates, for
the period from January 1 of the current calendar
year through the month in which the Statement is
sent. Tenant shall make such payment within thirty
(30) days after Landlord sends the Statement.
iv) If the Statement shows that Tenant's estimated
payments exceeded Tenant's actual obligations for
Taxes and Operating Expenses, Tenant shall receive a
credit for the difference against payments of Rent
next due. If the Term shall have expired and no
further Rent shall be due, Tenant shall receive a
refund of such difference, within thirty (30) days
after Landlord sends the Statement to tenants last
known address.
v) So long as Tenants obligations hereunder are not
materially adversely affected thereby, Landlord
reserves the right to reasonably change, from time to
time, the manner or timing of the foregoing payments.
In lieu of providing one Statement covering Taxes and
Operating Expenses, Landlord may provide separate
statements, at the same or different times. No delay
by Landlord in providing the Statement (or separate
statements) shall be deemed a default by Landlord or
a waiver of Landlord's right to require payment of
Tenant's obligations for actual or estimated Taxes or
Operating Expenses. In no event shall a decrease in
Taxes or Operating Expenses below the Base Year
amounts, ever decrease the monthly Base Rent, or give
rise to a credit in favor of Tenant.
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e) PRORATION. If the Term commences other than on January 1, or
ends other than on December 31, Tenant's obligations to pay
estimated and actual amounts towards Taxes and Operating
Expenses for such first or final calendar years shall be
prorated to reflect the portion of such years included in the
Term. Such proration shall be made by multiplying the total
estimated or actual (as the case may be) Taxes and Operating
Expenses, for such calendar years, as well as the Base Year
amounts, by a fraction, the numerator of which shall be the
number of days of the Term during such calendar year, and the
denominator of which shall be 365.
f) BASE YEAR ADJUSTMENTS. If Taxes for the Base Tax Year are
reduced as the result of protest, or by means of agreement, or
as the result of legal proceedings or otherwise, Landlord may
adjust Tenant's obligations for Taxes in all years following
the Base Tax Year, and Tenant shall pay Landlord within thirty
(30) days after notice any additional amount required by such
adjustment for any such years or portions thereof that have
theretofore occurred. Landlord may exclude from the Base
Expense Year, any non-recurring items, including capital
expenditures otherwise permitted as Operating Expenses of the
Lease (and shall only include the amortization of such
expenditures in subsequent year Operating Expenses, including
any remaining amortization of permitted capital expenditures
made prior to or after the Commencement Date). If Landlord
eliminates from any subsequent year's Operating Expenses a
recurring category of expenses previously included in the Base
Expense Year, Landlord may subtract such category from the
Base Expense Year commencing with such subsequent year.
g) RENT AND OTHER CHARGES. Base Rent, Taxes, Operating Expenses,
and any other amounts which Tenant is or becomes obligated to
pay Landlord under this Lease or other agreement entered in
connection herewith, are sometimes herein referred to
collectively as "Rent," and all remedies applicable to the
non-payment of Rent shall be applicable thereto. Rent shall be
paid at any office maintained by Landlord or its agent at the
Property, or at such other place as Landlord may designate.
All Rent, and all other amounts payable to Landlord by Tenant
pursuant to the provisions of this Lease, shall be paid to
Landlord, without notice, demand, abatement, deduction or
offset, in lawful money of the United States at Landlord's
office in the Property or to such other person or at such
other place as Landlord may designate from time to time by
written notice given to Tenant. No payment by Tenant or
receipt by Landlord of a lesser amount than the correct Rent
due hereunder shall be deemed to be other than a payment on
account; nor shall any endorsement or statement or any check
or any letter accompanying any check or payment be deemed to
effect or evidence an accord and satisfaction; and Landlord
may accept such check or payment without prejudice to
Landlords right to recover the balance or pursue any other
remedy in this Lease or at law or in equity provided.
h) LATE CHARGE; INTEREST. Tenant acknowledges that the late
payment of Rent or any portion thereof or any other amounts
payable by Tenant to Landlord hereunder may cause Landlord to
incur administrative costs and other damages, the exact amount
of which would be impracticable or extremely difficult to
ascertain. Landlord and Tenant agree that if Landlord does not
receive any payment of any such Rent or portion thereof on or
before ten (10) business days after the date the payment is
due, Tenant shall pay to Landlord, as additional rent, (a) a
late charge equal to one and a half of the overdue amount to
cover such additional administrative costs; and (b) interest
on the delinquent amounts at the Default Rate from the date
due to the date paid.
7. CONDITION OF PREMISES. Tenant acknowledges that Landlord has not made
any representation or warranty with respect to the condition of the
Premises or the Property or with respect to the suitability or fitness
of either for the conduct of Tenant's permitted use or for any other
purpose. Tenant represents and warrants that Tenant has walked through
and inspected the Property and the Premises and, except only for any
work to be performed by Landlord as expressly set forth herein, it has
accepted the Premises in its as-is where-is condition. Tenant
acknowledges and
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agrees that the Property was constructed at a time when asbestos was
commonly used in construction, asbestos-containing materials ("ACM")
may be present at the Property, and that airborne asbestos fibers may
involve a potential health hazard unless proper procedures are
followed. In such cases, before commencing any work in the Premises,
Tenant and its contractor shall consult with Landlord and Landlord's
asbestos consultant concerning appropriate procedures to be followed.
Landlord shall, at Tenant's expense, undertake any necessary initial
asbestos-related work, before Tenant commences such work. During
performance of such work, Tenant shall require that its contractor
comply with all laws, rules, regulations and other governmental
requirements, as well as all directives of Landlord's asbestos
consultant, respecting ACM. Tenant hereby irrevocably appoints Landlord
and Landlord's asbestos consultant as Tenants attorney-in-fact for
purposes of supervising and directing any asbestos-related aspects of
the work (but such appointment shall not relieve Tenant from its
obligations hereunder, nor impose any affirmative requirement on
Landlord to provide such supervision of direction). Landlord shall have
the right to stop Tenants work if Tenant's work has not been approved
in writing by Landlord or Tenant has deviated from the plans approved
by Landlord.
-------------------------- ---------------------------
Landlord's Initials Tenant's Initials
8. USE AND RULES. Tenant shall use the Premises for general office
purposes and no other purpose whatsoever, in compliance with all
applicable Laws, and without disturbing or interfering with any other
tenant or occupant of the Property. Tenant shall not use the Premises
in any manner so as to cause a cancellation of Landlord's insurance
policies, or an increase in the premiums thereunder. Tenant shall
comply with all rules set forth in Exhibit D attached hereto (the
"Rules"). Landlord shall have the right to reasonably amend such Rules
and supplement the same with other reasonable Rules (not expressly
inconsistent with this Lease) relating to the Property, or the
promotion of safety, care, cleanliness or good order therein, and all
such amendment or new Rules shall be binding upon Tenant after five (5)
days notice thereof to Tenant. Nothing herein shall be construed to
give Tenant or any other Person any claim, demand or cause of action
against Landlord arising out of the violation of such Rules by any
other tenant, occupant, or visitor of the Property, or out of the
enforcement or waiver of the Rules by Landlord in any particular
instance.
9. SERVICES AND UTILITIES. As long as Tenant is not in default under this
Lease, Landlord agrees to furnish or cause to be furnished to the
Premises the following utilities and services, subject to the
conditions and standards set forth herein. Any amounts which Tenant is
required to pay to Landlord pursuant to this Section shall be payable
upon demand by Landlord and shall constitute additional rent.
a) ACCESS. Tenant shall have access to the public areas of the
Building and the Premises twenty-four (24) hours per day seven
(7) days per week subject to Landlord's security, maintenance
and emergency restrictions. When reasonably necessary Landlord
may temporarily close entrances, doors, corridors, elevators
or other facilities without liability to Tenant by reason of
such closure and without such action by Landlord being
construed as an eviction of Tenant or relieve Tenant from the
duty of observing and performing any of the provisions of this
Lease.
b) ELEVATOR SERVICE. Landlord shall provide non-attended
automatic service for passengers and freight elevator service
during Business Hours. Such normal elevator service, passenger
or freight, if furnished at other times, shall be provided on
a restricted basis subject to the access control requirements
at Landlord's sole discretion for safety, maintenance and/or
security reasons.
c) HVAC. During Business Hours, such air conditioning, heating
and ventilation as, in reasonable Landlord's judgment, are
required for the comfortable use and occupancy of the
Premises; provided, however, that if Tenant shall require
heating, ventilation or air conditioning in excess of that
which Landlord shall be required to provide hereunder,
Landlord may provide such additional heating, ventilation or
air conditioning at such rates
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and upon such additional conditions as shall be determined by
Landlord from time to time.
d) ELECTRIC SERVICE. At all reasonable times, electric current as
required for building standard lighting and fractional
horsepower office machines from a Building standard 42 circuit
200 amp panel, with transformer if necessary, on each full
floor occupied by Tenant, with the express exception of the
34th floor, provided, however, that: (i) without Landlord's
consent, Tenant shall not install, or permit the installation,
in the Premises of any computers, word processors, electronic
data processing equipment or other type of equipment or
machines which will increase Tenants use of electric current
in excess of that which Landlord is obligated to provide
hereunder (provided, however, that the foregoing shall not
preclude the use of personal computers or similar office
equipment); (ii) if Tenant shall require electric current
which may disrupt the provision of electrical service to other
tenants, Landlord may refuse to grant its consent and (iii) if
Tenants increased electrical requirements will materially
affect the temperature level in the Premises or the Property,
Landlord's consent may be conditioned upon Tenant's
requirement to pay such amounts as will be incurred by
Landlord to install and operate any machinery or equipment
necessary to restore the temperature level to that otherwise
required to be provided by Landlord, including but not limited
to the cost of modifications to the air conditioning system.
Tenant shall purchase all non-standard light bulbs,
fluorescent tubes, ballasts, or starters used in the Premises
from Landlord. Landlord shall not, in any way be liable or
responsible to Tenant for any loss or damage or expense which
Tenant may incur or sustain if, for any reasons beyond
Landlord's control, either the quantity or character of
electric service is changed or is no longer available or
suitable for Tenant's requirements. Any riser or risers (and
all other equipment proper or necessary in connection
therewith) required after the commencement of the Lease Term
to supply Tenants electrical requirement will, upon Tenants
written request (and at its sole expense as additional rent),
be installed by Landlord if, in Landlord's sole judgment, the
same is necessary and will not cause permanent damage or
injury to or adversely affect the appearance of the Property
or Premises or create a dangerous or hazardous condition or
entail excessive or unreasonable alterations, repairs, or
expense or interfere with or disturb other tenants or
occupants. Tenant covenants that at all times its use of
electric current shall never exceed the capacity of the
feeders, risers or electrical installations of the Property.
If any tax is imposed upon Landlord's receipt from the sale or
resale of electrical energy or gas or telephone service to
Tenant by any governmental authority, Tenant covenants that,
where permitted by law, Tenants Pro rata Share of such taxes
shall be paid by Tenant to Landlord.
e) WATER. Water for drinking and rest room purposes.
f) JANITORIAL. Customary janitorial, trash removal and cleaning
services Monday through Friday or Sunday through Thursday in
and about the Premises, provided that the Premises are used
exclusively for office purposes and are kept reasonably in
order by Tenant.
g) INTERRUPTION OF SERVICES. Landlord shall not be liable for any
failure to furnish, stoppage of, or interruption in furnishing
any of the services or utilities described herein, when such
failure is caused by accident, breakage, repairs, strikes,
lockout, labor disputes, labor disturbances, governmental
regulation, civil disturbances, acts of war, moratorium or
other governmental action, or computer software weaknesses not
under the control of Landlord, or any other cause beyond
Landlord's control, and, in such event, Tenant shall not be
entitled to any, damages nor shall any failure or interruption
xxxxx or suspend Tenant's obligation to pay Rent and
additional rental required under this Lease or constitute or
be construed as a constructive or other eviction of Tenant.
Further, in the event any governmental authority or public
utility promulgates or revises any law, ordinance, rule or
regulation, or issues mandatory controls or voluntary controls
relating
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to the use or conservation of energy, water, gas, light or
electricity, the reduction of automobile or other emissions,
or the provision of any other utility or service, Landlord may
take reasonably appropriate action to comply with such law,
ordinance, rule, regulation, mandatory control or voluntary
guideline without affecting Tenant's obligations hereunder.
Landlord shall not be responsible for, and Tenant waives any
rights with respect to, providing security or other protection
for Tenant or its employees, invitees or property in or about
the Premises or the Property.
h) MONITORING EXCESS USE. If the Landlord shall determine, in the
exercise of Landlord's good faith review, that the Tenants use
of utilities is in excess of that normally used by a tenant
occupying similar office space for similar office purposes,
then Tenant shall pay Landlord upon demand as additional rent,
the cost of such excess utility usage in addition to any other
rent or charge due from Tenant under this Lease. In addition,
Landlord may install and operate meters or any other
reasonable system for monitoring or estimating any services or
utilities used by Tenant in excess of those required to be
provided by Landlord under this Section (including a system
for Landlord's engineer to reasonably estimate any such excess
usage). If such system indicates such excess services or
utilities, Tenant shall pay Landlord's charges for installing
and operating such system and any supplementary
air-conditioning, ventilation, heat electrical or other
systems or equipment (or adjustment or modifications to the
existing Systems and Equipment), and Landlord's charges for
such amount of excess services or utilities used by Tenant.
10. ALTERATIONS AND LIENS.
a) ALTERATIONS. Tenant shall make no additions, changes,
alterations or improvement (the "Work") to the Premises or the
Systems and Equipment pertaining to the Premises without the
prior written consent of Landlord which shall not be
unreasonably withheld Landlord may impose as a condition of
such consent such requirement as Landlord in its sole
discretion deems necessary or desirable including, without
limitation, the submission of plans and specifications for
Landlord's prior written approval, obtaining necessary
permits, posting bonds, obtaining insurance, prior approval of
contractors, subcontractors and suppliers, prior receipt of
copies of all contracts and subcontracts, contractor and
subcontractor lien waivers, affidavits listing all
contractors, subcontractors and suppliers, use of union labor
(if Landlord uses union labor), affidavits from engineers
acceptable to Landlord stating that the Work will not
adversely affect the Systems and Equipment or the structure of
the Property, and requirement as to the manner and times in
which such Work shall be done. All Work shall be performed in
a good and workmanlike manner and all materials used shall be
of a quality comparable to or better than those in the
Premises and Property and shall be in accordance with plans
and specifications approved by Landlord, and Landlord may
require that all such Work be performed under Landlord's
supervision. In all cases, Tenant shall pay Landlord a fee of
Five percent (5%) of the total cost of any Work exceeding Ten
Thousand dollars ($10,000.00) to cover Landlord's overhead in
reviewing Tenant's plans and specifications and performing any
supervision of the Work. If Landlord consents or supervises,
the same shall not be deemed a warranty as to the adequacy of
the design, workmanship or quality of materials, and Landlord
hereby expressly disclaims any responsibility or liability for
the same. Landlord shall under no circumstances have any
obligation to repair, maintain or replace any portion of the
Work.
b) LIENS. Tenant shall keep the Property and Premises free from
any mechanic's, materialman's or similar liens or other such
encumbrances in connection with any Work on or respecting the
Premises not performed by or at the request of Landlord, and
shall indemnify and hold Landlord harmless from and against
any claims, liabilities, judgment, or costs (including
attorneys fees) arising out of the same or in connection
therewith. Tenant shall give Landlord notice at least twenty
(20) days prior to the commencement of any Work on the
Premises (or such additional time as may be necessary under
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applicable Laws), to afford Landlord the opportunity of
posting and recording appropriate notices of
non-responsibility. Tenant shall remove any such lien or
encumbrance by bond or otherwise within thirty (30) days after
written notice by Landlord, and if Tenant shall fail to do so,
Landlord may pay the amount necessary to remove such lien or
encumbrance, without being responsible for investigating the
validity thereof. The amount so paid shall be deemed
additional Rent under this Lease payable upon demand, without
limitation as to other remedies available to Landlord under
this Lease. Nothing contained in this Lease shall authorize
Tenant to do any act which shall subject Landlord's title to
the Property or Premises to any liens or encumbrances whether
claimed by operation of law or express or implied contract.
Any claim to a lien or encumbrance upon the Property or
Premises arising in connection with any Work on or respecting
the Premises not performed by or at the request of Landlord
shall be null and void, or at Landlord's option shall attach
only against Tenants interest in the Premises and shall in all
respects be subordinate to Landlord's title to the Property
and Premises.
c) LEASE TERMINATION. Except as provided elsewhere herein, upon
expiration or earlier termination of this Lease Tenant shall
surrender the Premises to Landlord in the same condition as
when received, subject to reasonable wear and tear. All Work
shall become a part of the Premises and shall become the
property of Landlord upon the expiration or earlier
termination of this Lease, unless Landlord shall, by written
notice given to Tenant, require Tenant to remove some or all
of Tenant's Work, in which event Tenant shall promptly remove
the designated Work and shall promptly repair any resulting
damage, all at Tenant's sole expense and in accordance with
this Section. However, Tenant may request in writing, at the
time it requests Landlord's approval of the work, that
Landlord provide a written determination as to the removal of
any of the Work. All business and trade fixtures, machinery
and equipment, furniture, movable partitions and items of
personal property owned by Tenant or installed by Tenant at
its expense in the Premises shall be and remain the property
of Tenant; upon the expiration or earlier termination of this
Lease. Tenant shall, at its sole expense remove all such items
and repair any damage to the Premises or the Property caused
by such removal. If Tenant fails to remove any such items or
repair such damage promptly after the expiration or earlier
termination of the Lease Landlord may but need not do so with
no liability to Tenant and Tenant shall pay Landlord the cost
thereof upon demand.
11. REPAIRS. Except for customary cleaning and trash removal provided by
Landlord under Section 9 and damage covered under Section 12, Tenant
shall keep the Premises in good and sanitary condition working order
and repair (including without limitation carpet, wall-covering doors
plumbing and other fixtures, equipment alterations and improvements
whether installed by Landlord or Tenant). In the event that any repairs
maintenance or replacements are required Tenant shall promptly arrange
for the same either through Landlord for such reasonable charges as
Landlord may from time to time establish or such contractors as
Landlord generally uses at the Property or such other contractors as
Landlord shall first approve in writing, and in a first class
workmanlike manner approved by Landlord in advance in writing. If
Tenant does not promptly make such arrangements, Landlord may, but need
not, make such repairs, maintenance and replacements, and the costs
paid or incurred by Landlord therefor shall be reimbursed by Tenant
promptly after request by Landlord. Landlord and its contractors shall
have the right at all reasonable times to enter upon the Premises to
make any repairs to the Premises or the Property reasonably required or
deemed reasonably necessary by Landlord and to erect such equipment
including scaffolding, as is reasonably necessary to effect such
repairs. Tenant shall indemnify Landlord and pay for any repairs,
maintenance and replacements to areas of the Property outside the
Premises, caused in whole or in part as a result of moving any
furniture, fixtures or other property to or from the Premises, or by
Tenant or its employees, agents, contractors, or visitors
(notwithstanding anything to the contrary contained in this Lease).
Notwithstanding the above, Tenant shall not be required to maintain and
repair fire-doors, HVAC, or Building system items relating to
mechanical, structural, and fire or life-safety within the Premises.
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12. CASUALTY DAMAGE. If the Premises or any Common Areas of the Property
providing access thereto shall be damaged by fire or other casualty
Landlord shall use available insurance proceeds to restore the same.
Such restoration shall be to substantially the condition prior to the
casualty except for modifications required by zoning and building codes
and other Laws or by any Holder, any other modifications to the Common
Areas deemed desirable by Landlord (provided access to the Premises is
not materially impaired), and except that Landlord shall not be
required to repair or replace any of Tenant's furniture, furnishings,
fixtures or equipment. Landlord shall not be liable for any
inconvenience or annoyance to Tenant or its visitors, or injury to
Tenant's business resulting in any way from such damage or the repair
thereof. However Landlord shall allow Tenant a proportionate abatement
of Rent during the time and to the extent the Premises are unfit for
occupancy for the purposes permitted under this Lease and not occupied
by Tenant as a result thereof (unless Tenant or its employees or agents
caused the damage). Notwithstanding the foregoing to the contrary
Landlord may elect to terminate this Lease by notifying Tenant in
writing of such termination within sixty (60) days after the date of
damage (such termination notice to include a termination date providing
at least ninety (90) days for Tenant to vacate the Premises) if the
Property shall be materially damaged by Tenant or its employees or
agents or if the Property shall be damaged by fire or other casualty or
cause such that: (a) repairs to the Premises and access thereto cannot
reasonably be completed within 120 days after the casualty without the
payment of overtime or other premiums (b) more than 25% of the Premises
is affected by the damage and fewer than 24 months remain in the Term
or any material damage occurs to the Premises during the last 12 months
of the Term (c) any Holder shall require that the insurance proceeds or
any portion thereof be used to retire the Mortgage debt (or shall
terminate the ground lease as the case may be) or the damage is not
fully covered by Landlord's insurance policies or (d) the cost of the
repairs alterations restoration or improvement work would exceed 25% of
the replacement value of the Property or the nature of such work would
make termination of this Lease necessary or convenient. Tenant agrees
that Landlord's obligation to restore and the abatement of Rent
provided herein shall be Tenants sole recourse in the event of such
damage and waives any other rights Tenant may have under any applicable
Law to terminate the Lease by reason of damage to the Premises or
Property. Tenant acknowledges that this Section represents the entire
agreement between the parties respecting damage to the Premises or
Property.
13. INSURANCE, SUBROGATION, AND WAIVER OF CLAIMS.
a) TENANT INSURANCE. Tenant shall maintain during the Term
comprehensive (or commercial) general liability insurance with
limits of not less than $2,000,000.00 combined single limit
for personal injury, bodily injury or death or property damage
or destruction (including loss of use thereof) for any one
occurrence. Tenant shall also maintain during the Term worker
compensation insurance as required by statute and primary
noncontributory "all-risk" property damage insurance covering
Tenant's possessions, any tenant improvements, fixtures,
personal property, furniture, equipment and inventory,
business records, for damage or other loss caused by fire or
other casualty or cause including, but not limited to,
vandalism and malicious mischief, theft, water damage of any
type, including sprinkler leakage, bursting or stoppage of
pipes, explosion, business interruption, and other insurable
risks in amounts not less than the full insurable replacement
value of such property and full insurable value of such other
interests of Tenant (subject to reasonable deductible
amounts). Landlord will not carry insurance on Tenant's
possessions, fixtures, equipment, furniture or inventory and
will not be responsible for any loss or damage thereto or for
any of Tenant's lost earnings or profits attributable to
Tenant's inability to fully use or obtain access to the
Premises or Property.
i) Tenant shall provide Landlord with certificates
evidencing such coverage (and, with respect to
liability coverage), showing Landlord and such other
parties as Landlord shall designate from time to time
as additional insureds) prior to the Commencement
Date, which shall state that such insurance coverage
may not
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be changed or canceled without at least twenty (20)
days prior written notice to Landlord, and shall
provide renewal certificates to Landlord at least
twenty (20) days prior to expiration of such
policies. All Insurance required to be maintained by
Tenant shall be issued by insurance companies
authorized to do insurance business in the State of
Washington and rated not less than A-VII in Best's
Insurance Guide. Landlord may periodically, but not
more often than every five years, require that Tenant
reasonably increase the aforementioned coverage.
Except as provided to the contrary herein, any
insurance carried by Landlord or Tenant shall be for
the sole benefit of the party carrying such
insurance. Any insurance policies hereunder may be
"blanket policies." All insurance required hereunder
shall be provided by responsible insurers and
Tenant's insurer shall be reasonably acceptable to
Landlord.
b) LANDLORD INSURANCE. Landlord shall, as part of Operating
Expenses, maintain during the Term comprehensive (or
commercial) general liability Insurance, with limits of not
less than $3,000,000.00 combined single limit for personal
injury, bodily Injury or death, or property damage or
destruction (including loss of use thereof) for any one
occurrence. Landlord may, as part of Operating Expenses,
maintain during the Term worker compensation insurance as
required by statute, and primary, non-contributory, extended
coverage or "all-risk" property damage insurance, in an amount
equal to at least ninety percent (90%) of the full insurable
replacement value of the Property (exclusive of the costs of
excavation, foundations and footings, and such risks required
to be covered by Tenant's insurance, and subject to reasonable
deductible amounts), or such other amount necessary to prevent
Landlord from being a co-insured, and such other coverage as
Landlord shall deem appropriate or that may be required by any
Holder.
c) WAIVER OF SUBROGATION. By this Section, Landlord and Tenant
intend that their respective property loss risks shall be
borne by responsible insurance carriers to the extent above
provided, and Landlord and Tenant hereby agree to look solely
to, and seek recovery only from, their respective insurance
carriers in the event of a property loss to the extent that
such coverage is agreed to be provided hereunder. The parties
each hereby waive all rights and claims against each other for
such losses, and waive all rights of subrogation of their
respective insurers, provided such waiver of subrogation shall
not affect the right of the insured to recover thereunder. The
parties agree that their respective insurance policies are
now, or shall be, endorsed such that said waiver of
subrogation shall not affect the right of the insured to
recover thereunder, so long as no material additional premium
is charged therefor.
14. CONDEMNATION. If the whole or any material part of the Premises or
Property shall be taken by power of eminent domain or condemned by any
competent authority for any public or quasi-public use or purpose, or
if any adjacent property or street shall be so taken or condemned, or
reconfigured or vacated by such authority in such manner as to require
the use, reconstruction or remodeling of any part of the Premises or
Property, or if Landlord shall grant a deed or other instrument in lieu
of such taking by eminent domain or condemnation, Landlord shall have
the option to terminate this Lease upon ninety (90) days notice,
provided such notice is given no later than one hundred eighty (180)
days after the date of such taking, condemnation, reconfiguration,
vacation, deed or other instrument. Tenant shall have reciprocal
termination rights if the whole or any material part of the Premises is
permanently taken, or if access to the Premises is permanently
materially impaired. Landlord shall be entitled to receive the entire
award or payment in connection therewith, except that Tenant shall have
the right to file any separate claim available to Tenant for any taking
of Tenant's personal property and fixtures belonging to Tenant and
removable by Tenant upon expiration of the Term, and for moving
expenses (so long as such claim does not diminish the award available
to Landlord or any Holder, and such claim is payable separately to
Tenant). All Rent shall be apportioned as of the date of such
termination, or the date of such taking, whichever shall first occur.
If any part of the Premises shall be taken, and this Lease shall not be
so terminated, the Rent shall be proportionately abated.
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15. RETURN OF POSSESSION. At the expiration or earlier termination of this
Lease or Tenant's right of possession, Tenant shall surrender
possession of the Premises in the condition required under Section
10.c, ordinary wear and tear excepted, and shall surrender all keys,
any key cards, and any parking stickers or cards, to Landlord, and
advise Landlord as to the combination of any locks or vaults then
remaining in the Premises, and shall remove all trade fixtures and
personal property. All improvement, fixtures and other items in or upon
the Premises (except trade fixtures and personal property belonging to
Tenant), whether installed by Tenant or Landlord, shall be Landlord's
property and shall remain upon the Premises, all without compensation,
allowance or credit to Tenant. However, if prior to such termination or
within ten (10) days thereafter Landlord so directs by notice, Tenant
shall promptly remove such of the foregoing items as are designated in
such notice and restore the Premises to the condition prior to the
installation of such items; provided, Landlord shall not require
removal of customary office improvements installed pursuant to any
separate agreement signed by both parties in connection with entering
this Lease (except as expressly provided to the contrary therein), or
installed by Tenant with Landlord's written approval (except as
expressly required by Landlord in connection with granting such
approval). If Tenant shall fail to perform any repairs or restoration,
or fail to remove any items from the Premises required hereunder,
Landlord may do so, and Tenant shall pay Landlord the cost thereof upon
demand. All property removed from the Premises by Landlord pursuant to
any provisions of this Lease or any Law may be handled or stored by
Landlord at Tenant's expense, and Landlord shall in no event be
responsible for the value, preservation or safekeeping thereof. All
property not removed from the Premises or retaken from storage by
Tenant within thirty (30) days after expiration or earlier termination
of this Lease or Tenant's right to possession, shall at Landlord's
option be conclusively deemed to have been conveyed by Tenant to
Landlord as if by xxxx of sale without payment by Landlord. Unless
prohibited by applicable Law, Landlord shall have a lien against such
property for the costs incurred in removing and storing the same.
16. HOLDING OVER. Unless Landlord expressly agrees otherwise in writing,
Tenant shall pay Landlord 150% of the amount of Rent then applicable
(or the highest amount permitted by Law, whichever shall be less)
prorated on per diem basis for each day Tenant shall retain possession
of the Premises or any part thereof after expiration or earlier
termination of this Lease, together with all damages sustained by
Landlord on account thereof. The foregoing provisions shall not serve
as permission for Tenant to hold-over, nor serve to extend the Term
(although Tenant shall remain bound to comply with all provisions of
this Lease until Tenant vacates the Premises, and shall be subject to
the provisions of Section 13). Notwithstanding the foregoing to the
contrary, at any time before or after expiration or earlier termination
of the Lease, Landlord may serve notice advising Tenant of the amount
of Rent and other terms required, should Tenant desire to enter a
month-to-month tenancy (and if Tenant shall hold over more than one (1)
full calendar month after such notice, Tenant shall thereafter be
deemed a month-to-month tenant, on the terms and provisions pensions of
this Lease then in effect, as modified by Landlord's notice, and except
that Tenant shall not be entitled to any renewal or expansion rights
contained in this Lease or any amendments hereto). In addition, Tenant
shall indemnify and hold Landlord harmless from any and all costs,
expenses, liabilities or damages, including any consequential or
incidental damages, Landlord may incur as a result of Tenant holding
over.
17. NO WAIVER. No provision of this Lease will be deemed waived by either
party unless expressly waived in writing signed by the waiving party.
No waiver shall be implied by delay or any other act or omission of
either party. No waiver by either party of any provision of this Lease
shall be deemed a waiver of such provision with respect to any
subsequent matter relating to such provision, and Landlord's consent or
approval respecting any action by Tenant shall not constitute a waiver
of the requirement for obtaining Landlord's consent or approval
respecting any subsequent action. Acceptance of Rent by Landlord shall
not constitute a waiver of any breach by Tenant of any term or
provision of this Lease. The acceptance of Rent or of the performance
of any other term or provision from any Person other than Tenant,
including any Transferee, shall not constitute a waiver of Landlord's
fight to approve any Transfer.
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18. ATTORNEYS' FEES AND JURY TRIAL. In the event of any litigation between
the parties, the prevailing party shall be entitled to obtain, as part
of the judgment, all reasonable attorneys fees, costs and expenses
incurred in connection with such litigation, except as may be limited
by applicable Law. In the interest of obtaining a speedier and less
costly hearing of any dispute, the parties hereby each irrevocably
waive the right to trial by Jury.
19. PERSONAL PROPERTY TAXES, RENT TAXES AND OTHER TAXES. Tenant shall pay
prior to delinquency all taxes, charges or other governmental
impositions assessed against or levied upon Tenant's fixtures,
furnishings, equipment and personal property located in the Premises,
and any Work to the Premises under Section 10. Whenever possible,
Tenant shall cause all such items to be assessed and billed separately
from the property of Landlord. In the event any such items shall be
assessed and billed with the property of Landlord, Tenant shall pay
Landlord its share of such taxes, charges or other governmental
impositions within thirty (30) days after Landlord delivers a statement
and a copy of the assessment or other documentation showing the amount
of such impositions applicable to Tenant's property. Tenant shall pay
any rent tax or sales tax, service tax, transfer tax or value added
tax, or any other applicable tax on the Rent or services herein or
otherwise respecting this Lease.
20. SUBORDINATION, ATTORNMENT,. ESTOPPEL AND HOLDER PROTECTION.
a) SUBORDINATION.
i) This lease is subject and subordinate to all
Mortgages. This clause shall be self-operative and no
further instrument of subordination shall be required
by any ground or underlying lessor or any Holder. In
confirmation of such subordination, Tenant shall
execute promptly any certificate that Landlord may
request.
ii) Notwithstanding the foregoing, Tenant agrees that a
Holder or other purchaser at foreclosure may elect to
treat this Lease as superior to the lien of the
Mortgage in any foreclosure of the Mortgage, in which
case Tenant shall attorn to the Holder or other
purchaser at foreclosure. All present and figure
Holders are intended to be, and may enforce this
covenant as, third party beneficiaries.
b) ESTOPPEL CERTIFICATE. Tenant, at any time, and from time to
time, within ten (10) days of written request by Landlord or
any Holder, shall execute, acknowledge and deliver to Landlord
or any Holder, and/or to any other person specified by
Landlord, or any Holder, a statement certifying that this
Lease is unmodified and in full force and effect (or, if there
have been modifications, that the same is in full force and
effect as modified and stating the modifications), stating the
dates to which the rent and additional rent have been paid,
stating whether or not there exists any default by Landlord or
Tenant under this Lease, and if so, specifying each such
default, stating whether Tenant has any rights to offsets or
abatement of rent, stating whether Tenant has prepaid any rent
for more than one month in advance, and certifying as to such
other matters as Landlord or any Holder may reasonably
request. Such statement may be relied upon by Landlord or any
Holders, or other person specified by Landlord or any
Mortgages, and their respective successors and/or assigns.
Breach of the foregoing will constitute Tenant's
acknowledgment which may be relied on by any person holding or
proposing to acquire an interest in the Property, this Lease
or any Mortgage, that this Lease is unmodified and in full
force and effect and will constitute, as to any such person, a
waiver of any defaults on Landlord's part which may exist
prior to the date of such notice. The foregoing shall not
limit any other rights and remedies available to Landlord for
breach of this Section.
c) HOLDER'S RIGHTS. Tenant agrees that if Landlord has notified
Tenant in writing of the name and address of any Holder on the
Property or the real property of which the Property is a part,
the following rights and benefits shall inure to the benefit
of each such Holder until satisfaction of its Mortgage or
expiration of this Lease:
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i) If (i) Landlord defaults in the performance of any of
its obligations under this Lease and fails to cure
the default and (ii) as a consequence, Tenant would
have the right to an abatement or offset against the
payment of rent or the right to terminate this Lease,
Tenant shall not exercise any such right without
first giving notice and an opportunity to cure as
described in below to the Holder(s);
ii) Tenant shall not agree to a modification, termination
or surrender of this Lease without the written
consent of the Holder(s); and
iii) Tenant shall send to the Holder(s) copies of any
default notices sent to the Landlord.
iv) If Landlord's default (i) can be cured by the payment
of money, the Holder(s) shall have fifteen (15) days
in the aggregate to cure the default; (ii) cannot be
cured by the payment of money but is curable within
thirty (30) days, the Holder(s) shall have thirty
(30) days in the aggregate to cure the default; and
(iii) cannot be cured by the payment of money and
cannot be cured within thirty (30) days, the
Holder(s) shall have such period of time as is
necessary to cure the default provided that (x) the
Holder shall notify Tenant of its intention to cure
the default, (y) the Holder commences action to cure
the default within twenty (20) days and (z) the
Holder thereafter proceeds diligently at all times to
cure the default. Notwithstanding the foregoing, in
no event shall any Holder have a lesser period of
time to cure a default than is granted to Landlord
under this Lease.
d) ATTORNMENT. If any Holder or designee of Holder succeeds to
Landlord's interest in the Property in which the Premises are
located, then, at the request of such Holder or designee,
Tenant shall attorn to such Holder or designee but such Holder
or designee (i) shall not be liable for any act or omission of
Landlord under this Lease occurring prior to the conveyance of
title to the Holder or its designee, (ii) shall not be subject
to any offset, defense or counterclaim accruing prior to such
conveyance, (iii) shall not be bound by any payment prior to
such conveyance of rent for more than one month in advance
(except prepayments in the nature of security for the
performance by Tenant of its obligations hereunder which
security is actually transferred to the Holder or its
designee), (iv) shall not be bound by an amendment or
modification of this Lease made (1) after notice to Tenant of
the execution of the underlying Mortgage in question and (2)
without the consent of such Holder, where required, (v) shall
not be bound by any covenant to perform (including, without
limitation, any covenant to complete) any renovation or
construction in the Premises or to pay any sums to Tenant in
connection therewith, in either case arising or accruing prior
to the date of such conveyance of Landlord's interest, (vi)
shall be liable for the performance of the other obligations
of Landlord under this Lease only during the period such
Mortgages or designee shall hold such interest in the Property
and (vii) shall not be required to account for any security
deposit unless the same is actually delivered to Holder or its
designee.
e) THIRD PARTY BENEFICIARY. All present and future Holders are
intended to be, and may enforce the provisions of this
Section, as third party beneficiaries, before or after
foreclosure of the Mortgage(s) held by it.
21. ASSIGNMENT AND SUBLETTING.
a) TRANSFERS. Tenant shall not, without the prior written consent
of Landlord which consent shall not be unreasonably withheld
or delayed but which may be reasonably conditioned, as further
described below: (i) assign, mortgage. pledge, hypothecate,
encumber, or permit any lien to attach to, or otherwise
transfer, this Lease or any interest hereunder, by
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operation of law or otherwise (notwithstanding the foregoing,
the following shall not be deemed a Transfer: (i) a transfer
of ownership and control of Tenant's voting stock in
connection with an investment in or financing of Tenant
business, or (ii) a sale or transfer of Tenant's capital stock
through any public exchange including the process of the
initial offering of shares to the general public, or (iii) a
redemption or issuance of additional capital stock of Tenant
of any class. Tenant shall provide written notification to
Landlord of any such event 30 days prior to any filing or
sale.), (ii) sublet the Premises or any part thereof, or (iii)
permit the use of the Premises by any Persons other than
Tenant and its employees (all of the foregoing are hereinafter
sometimes referred to collectively as "Transfers" and any
Person to whom any Transfer is made or sought to be made is
hereinafter sometimes referred to as a "Transferee").
Notwithstanding the foregoing Tenant may sublease the Premises
or assign this Lease to any party which directly or
indirectly: (i) wholly owns or controls Tenant, (ii) is wholly
owned or controlled by Tenant, (iii) is under common ownership
or control with Tenant, or (iv) into which Tenant or any of
the foregoing parties is merged, consolidated or reorganized.
or to which all or substantially all of Tenant's assets or any
such other party's assets are sold, without Landlord's
consent, provided: (a) Landlord shall receive a copy of the
executed transfer document promptly after the execution, (b)
Tenant shall remain liable under this Lease and (c) the
transferee shall expressly assume Tenant's obligations under
this Lease. If Tenant shall desire Landlord's consent to any
Transfer, Tenant shall notify Landlord in writing, which
notice shall include: (a) the proposed effective date (which
shall not be less than 30 nor more than 180 days after
Tenant's notice), (b) the portion of the Premises to be
Transferred (herein called the "Subject Space"), (c) the terms
of the proposed Transfer and the consideration therefor, the
name and address of the proposed Transferee, and a copy of all
documentation pertaining to the proposed Transfer, and (d)
current financial statements of the proposed Transferee
certified by an officer, partner or owner thereof, and any
other information to enable Landlord to determine the
financial responsibility, character, and reputation of the
proposed Transferee, nature of such Transferee's business and
proposed use of the Subject Space, and such other information
as Landlord may reasonably require. Any Transfer made without
complying with this Section shall, at Landlord's option, be
null, void and of no effect, or shall constitute a Default
under this Lease. Whether or not Landlord shall grant consent,
Tenant shall pay $300.00 towards Landlord's review and
processing expenses, as well as any reasonable legal fees
incurred by Landlord, within thirty (30) days after written
request by Landlord.
b) TRANSFER PREMIUM. If Landlord consents to a Transfer, and as a
condition thereto which the parties hereby agree is
reasonable, Tenant shall pay Landlord 50% of any Transfer
Premium derived by Tenant from such Transfer. "Transfer
Premium" shall mean all rent, additional rent or other
consideration paid by such Transferee in excess of the Rent
payable by Tenant under this Lease (on a monthly basis during
the Term, and on a per rentable square foot basis, if less
than all of the Premises is transferred), after deducting the
reasonable expenses incurred by Tenant for any changes,
alterations and improvements to the Premises, any other
economic concessions or services provided to the Transferee,
and any customary brokerage commissions paid in connection
with the Transfer. If part of the consideration for such
Transfer shall be payable other than in cash, Landlord's share
of such non-cash consideration shall be In such form as is
reasonably satisfactory to Landlord. The percentage of the
Transfer Premium due Landlord hereunder shall be paid within
ten (10) days after Tenant receives any Transfer Premium from
the Transferee.
c) RECAPTURE. Notwithstanding anything to the contrary contained
in this Section, Landlord shall have the option, by giving
written notice to Tenant within twenty (20) days after receipt
of Tenant's notice of any proposed Transfer, to recapture the
Subject Space. Such recapture notice shall cancel and
terminate this Lease with respect to the Subject Space as of
the date stated in Tenant's notice as the effective date of
the proposed
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Transfer(or at Landlord's option, shall cause the Transfer to
be made to Landlord or its agent, in which case the parties
shall execute the Transfer documentation promptly thereafter).
If this Lease shall be canceled with respect to less than the
entire Premises, the Rent reserved herein shall be prorated on
the basis of the number of rentable square feet retained by
Tenant in proportion to the number of rentable square feet
contained in the Premises, this Lease as so amended shall
continue thereafter in full force and effect, and upon request
of either party, the parties shall execute whiten confirmation
of the same.
d) TERMS OF CONSENT. If Landlord consents to a Transfer: (a) the
terms and conditions of this Lease, including among other
things, Tenant's liability for the Premises, shall in no way
be deemed to have been waived or modified, (b) such consent
shall not be deemed consent to any further Transfer by either
Tenant or a Transferee, (c) no Transferee shall succeed to any
rights provided in this Lease or any amendment hereto to
extend the Term of this Lease, expand the Premises, or lease
additional space, any such rights being deemed personal to
Tenant, (d) Tenant shall deliver to Landlord promptly after
execution, an original executed copy of all documentation
pertaining to the Transfer in form reasonably acceptable to
Landlord, and (e) Tenant shall furnish upon Landlord's request
a complete statement, certified by an independent certified
public accountant, or Tenant's chief financial officer,
setting forth in detail the computation of any Transfer
Premium Tenant has derived and shall derive from such
Transfer. Landlord or its authorized representatives shall
have the right at all reasonable to audit the books, records
and papers of Tenant relating to any Transfer, and shall have
the right to make copies thereof. If the Transfer Premium
respecting any Transfer shall be found understated, Tenant
shall within thirty (30) days after demand pay the deficiency,
and if understated by more than 2%, Tenant shall pay
Landlord's costs of such audit. Any sublease hereunder shall
be subordinate and subject to the provisions of this Lease,
and if this Lease shall be terminated during the term of any
sublease, Landlord shall have the right to: (i) treat such
sublease as canceled and repossess the Subject Space by any
lawful means, or (ii) require that such subtenant attorn to
and recognize Landlord is its landlord under any such
sublease. If Tenant shall Default and fail to cure within the
time permitted for cure under Section 23, Landlord is hereby
irrevocably authorized, as Tenant's agent and
attorney-in-fact, to direct any Transferee to make all
payments under or in connection with the Transfer directly to
Landlord (which Landlord shall apply towards Tenant's
obligations under this Lease) until such Default is cured.
e) CERTAIN TRANSFERS. For purposes of this Lease, the term
"Transfer" shall also include (a) if Tenant is a partnership,
the withdrawal or change, voluntary, involuntary or by
operation of law, of a majority of the partners, or a transfer
of a majority of partnership interests, within a twelve month
period, or the dissolution of the partnership.
22. RIGHTS RESERVED BY LANDLORD. Except to the extent expressly limited
herein, Landlord reserves full rights to control the Property (which
rights may be exercised without subjecting Landlord to claims for
constructive eviction, abatement of Rent, damages or other claims of
any kind), including more particularly, but without limitation, the
following rights:
a) CHANGE NAME OF PROPERTY. To change the name or street address
of the Property; install and maintain signs on the exterior
and interior of the Property; retain at all times, and use in
appropriate instances, keys to all doors within and into the
Premises; grant to any Person the right to conduct any
business or render any service at the Property, whether or not
it is the same or similar to the use permitted Tenant by this
Lease; and have access for Landlord and other tenants of the
Property to any mail chutes located on the Premises according
to the rules of the United States Postal Service.
b) ENTER PREMISES. To enter the Premises at reasonable hours for
reasonable purposes including inspection and supplying
cleaning service or other services to be provided
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Tenant hereunder, to show the Premises to current and
prospective mortgage lenders, ground lessors, insurers, and
prospective purchasers, tenants and brokers, at reasonable
hours, and if Tenant shall abandon the Premises at any time,
or shall vacate the same during the last 3 months of the Term,
to decorate, remodel, repair, or alter the Premises.
c) ACCESS LIMITATIONS. To limit or prevent access to the
Property, shut down elevator service, activate elevator
emergency controls, or otherwise take such action or
preventative measures deemed necessary by Landlord for the
safety of tenants or other occupants of the Property or the
protection of the Property and other property located thereon
or therein, in case of fire, invasion, insurrection, riot,
civil disorder, public excitement or other dangerous
condition, or threat thereof.
d) ALTERATIONS. To decorate and to make alterations, additions
and improvements, structural or otherwise, in or to the
Property or any part thereof, and any adjacent property,
structure, parking facility, land, street or alley (including
without limitation changes and reductions in corridors,
lobbies, parking facilities and other public areas and the
installation of kiosks, planters, sculptures, displays,
escalators, mezzanines, and other structures, facilities,
amenities and features therein, and changes for the purpose of
connection with or entrance into or use of the Property in
conjunction with any adjoining or adjacent building or
buildings, now existing or hereafter constructed). In
connection with such matters, or with any other repairs,
maintenance, improvements or alterations, in or about the
Property, Landlord may erect scaffolding and other structures
reasonably required, and during such operations may enter upon
the Premises and take into and upon or through the Premises,
all materials required to make such repairs, maintenance,
alterations or improvements, and may close public entry ways,
other public areas, restrooms, stairways or corridors.
Inconvenience caused by alterations, repairs, maintenance,
etc., shall not constitute or justify abatement of rent.
In connection with entering the Premises to exercise any of
the foregoing rights, Landlord shall: (a) provide reasonable
advance written or oral notice (which need not be more than
twenty-four hours) to Tenant's on-site manager or other
appropriate person (except in emergencies, or for routine
cleaning or other routine makers), and (b) take reasonable
steps to minimize any interference with Tenant's business.
23. TENANT'S DEFAULT. The occurrence of any one or more of the following
events shall constitute a "Default" by Tenant which if not cured within
any applicable time permitted for cure below, shall give rise to
Landlord's remedies set forth in Section 24: (i) failure by Tenant to
make when due any payment of Rent; (ii) failure by Tenant to observe or
perform any of the terms or conditions of this Lease to be observed or
performed by Tenant other than the payment of Rent, or as provided
below, unless such failure is cured within thirty (30) days after
notice, or such shorter period expressly provided elsewhere in this
Lease (provided, if the nature of Tenant's failure is such that more
time is reasonably required in order to cure, Tenant shall not be in
Default if Tenant commences to cure within such period and thereafter
reasonably seeks to cure such failure to completion); (iii) failure by
Tenant to comply with the Rules, unless such failure is cured within
five (5) days after notice (provided, if the nature of Tenant's failure
is such that more than five (5) days time is reasonably required in
order to cure, Tenant shall not be in Default if Tenant commences to
cure within such period and thereafter reasonably seeks to cure such
failure to completion); (iv) vacation of all or a substantial portion
of the Premises for more than thirty (30) consecutive days, or the
failure to take possession of the Premises within sixty (60) days after
the Commencement Date; (v) (a) making by Tenant or any guarantor of
this Lease ("Guarantor") of any general assignment for the benefit of
creditors, (b) filing by or against Tenant or any Guarantor of a
petition to have Tenant or such Guarantor adjudged a bankrupt or a
petition for reorganization or arrangement under any Law relating to
bankruptcy (unless, in the case of a petition filed against Tenant or
such Guarantor, the same Is dismissed within sixty (60) days), (c)
appointment of a trustee or receiver to take possession of
substantially all of Tenant's assets located on the Premises or of
Tenants interest in this Lease, where possession is not restored to
Tenant within
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thirty (30) days, (d) attachment, execution or other judicial seizure
of substantially all of Tenant's assets located on the Premises or of
Tenant's interest in this Lease, (e) Tenants or any Guarantor's
convening of a meeting of as creditors or any class thereof for the
purpose of effecting a moratorium upon or composition of its debts, or
(f) Tenant's or any Guarantor's insolvency or admission of an inability
to pay its debts as they mature; (vi) any material misrepresentation
herein, or material misrepresentation or omission in any financial
statements or other materials provided by Tenant or any Guarantor in
connection with negotiating or entering this Lease or in connection
with any Transfer under Section 21; (vii) cancellation of any guaranty
of this Lease by any Guarantor, (viii) failure by Tenant to cure within
any applicable times permitted thereunder any default under any other
lease for space at the Property or any other buildings owned or managed
by Landlord or its affiliates, now or hereafter entered by Tenant (and
any Default hereunder not cured within the times permitted for cure
herein shall, at Landlord's election, constitute a default under any
such other lease or leases). Failure by Tenant to comply with the same
term or condition of this Lease on three occasions during any twelve
month period shall cause any failure to comply with such term or
condition during the succeeding twelve month period, at Landlord's
option, to constitute an incurable Default, if Landlord has given
Tenant notice of each such failure within ten (10) days after each such
failure occurs. The notice and cure periods provided herein are in lieu
of, and not in addition to, any notice and cure periods provided by
Law.
24. LANDLORD'S REMEDIES. If a Default occurs and is not cured within any
applicable time permitted under Section 23, Landlord shall have the
rights and remedies hereinafter set forth:
a) TERMINATE LEASE. Terminate Tenant's right to possession of the
Premises by any lawful means, in which case this Lease shall
terminate and Tenant shall immediately surrender possession of
the Premises to Landlord. In such event Landlord shall be
entitled to recover from the Tenant all past due Rent and
other charges; the expenses of reletting the Premises,
including necessary renovation and alteration of the Premises,
reasonable attorneys' fees and costs; the worth at the time of
award by the court having jurisdiction thereof of the amount
by which the unpaid Rent called for herein for the balance of
the Lease Term after the time of such award exceeds the amount
of such loss for the same period that Tenant proves could be
reasonably avoided; and that portion of any leasing commission
paid by Landlord and applicable to the unexpired Lease Term of
this Lease. Unpaid installments of rent or other sums shall
bear interest from the date due at the rate of ten percent
(10%) per annum; or,
b) CONTINUE THE LEASE. Maintain Tenant's right to possession, in
which case this Lease shall continue in effect whether or not
Tenant shall have abandoned or vacated the Premises. In such
event Landlord shall be entitled to enforce all Landlord's
right and remedies under this Lease, including the right to
recover past due Rent and other charges, the Rent and any
other charges as may become due hereunder, and at Landlord's
option, to recover the worth at the time of the award by the
court having jurisdiction thereof of the amount by which the
unpaid Rent called for herein for the balance of the Lease
Term after the time of such award exceeds the amount of such
loss for the same period that Tenant proves could be
reasonably avoided.
c) RELETTING FOR TENANT'S ACCOUNT. Landlord may re-enter and
attempt to relet without terminating this Lease and remove all
persons and property from the Premises (which property may be
removed and stored in a public warehouse or elsewhere at the
cost and risk of, and for the account of, Tenant), all without
service of notice or resort to legal process and without being
deemed guilty of trespass, or any liability of Landlord for
any loss or damage which may be occasioned thereby. If
Landlord, without terminating this Lease, either (1) elects to
re-enter the Premises and attempt to relet, or (2) takes
possession of the Premises pursuant to legal proceedings, or
(3) takes possession of the Premises pursuant to any notice
provided by law, then Landlord may, from time to time, make
such alterations and repairs as may be necessary in order to
relet the Premises or
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any part thereof for such term or terms (which may be for a
term extending beyond the term of this Lease) and at such rent
and other terms as Landlord in its reasonable discretion deems
advisable. Upon such reletting, all Rents received by Landlord
from such reletting shall be applied, first, to the payment of
any indebtedness of Tenant (other than any rents due
hereunder) to Landlord; second, to the payment of any costs
and expenses of obtaining possession and any such reletting,
including expense of alterations and repairs, brokerage fees
and attorneys fees; third, to the payment of any rents due and
unpaid hereunder. If such rents and any other amounts received
from such reletting during any month be less than that to be
paid during that month by Tenant, Tenant shall immediately pay
such deficiency to Landlord. No such re-entry or taking
possession of the Premises by Landlord shall be construed as
an election by Landlord to terminate this Lease unless a
notice of such intention be given to Tenant. Notwithstanding
any such reletting without termination, Landlord may at any
time thereafter elect to terminate this Lease for such
previous breach. Should Landlord at any time terminate this
Lease for any breach, in addition to any other remedies it may
have, Landlord may recover from Tenant all damages it may
incur by reason of such breach, including the cost of
recovering the Premises, reimbursement of any brokerage fees
incurred by Landlord in connection with Tenant's Lease and all
rent (accrued or to accrue during the term of the Lease)
which, at Landlord's election, shall be accelerated and be due
in full on demand.
d) OTHER REMEDIES. Pursue any other remedy now or hereafter
available to Landlord under the laws or judicial decisions of
the State in which the Premises are located, including but not
limbed to the right to assess against Tenant an amount equal
to the attorneys' fees incurred by Landlord in collecting any
rent or other payment due hereunder, which amount shall be due
in full within ten (10) days of Tenants receipt of the
assessment by Landlord.
e) REMEDIES CUMULATIVE-WAIVER. It is understood and agreed that
the Landlord's remedies hereunder are cumulative and the
Landlord's exercise of any right or remedy due to a default or
breach by Tenant shall not be deemed a waiver of, or to alter,
affect or prejudice any right or remedy which Landlord may
have under this Lease or by law or in equity. The acceptance
of Rent or any other acts or omission of Landlord at any time
or times after the happening of any event authorizing the
cancellation or forfeiture of this Lease, shall not operate as
a waiver of any past or future violation, breach or failure to
keep or perform any covenant, agreement, term or condition
hereof or to deprive Landlord of its right to cancel or
terminate this Lease, upon the written notice provided for
herein, at any time that cause for cancellation or termination
may exist, or be construed so as at any time to stop Landlord
from promptly exercising any other option, right or remedy
that it may have under any term or provision of this Lease, at
law or in equity.
f) ACCEPTANCE OF PAYMENT. It is specifically understood and
agreed that the Landlord's acceptance of any sum, whether as
Base Rent, Operating Expense or otherwise, which is less than
the amount claimed as due by the Landlord, shall not act as,
or be deemed to be, a waiver of such claimed amount or a
compromise or accord and satisfaction of the amount claimed as
due by Landlord.
g) WAIVER OF RIGHT OF REDEMPTION. Tenant hereby expressly waives
any and all rights of redemption granted by or under any
present or future laws in the event of Tenant being evicted or
dispossessed for any cause, or in the event of Landlord
obtaining possession of the Premises, by reason of the
violation by Tenant of any of the covenants or conditions of
this Lease, or otherwise.
h) OTHER MATTERS. No re-entry or repossession, repairs, changes,
alterations and additions, reletting, acceptance of keys from
Tenant, or any other action or omission by Landlord shall be
construed as an election by Landlord to terminate this Lease
or Tenant's right to
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possession, or accept a surrender of the Premises, nor shall
the same operate to release the Tenant in whole or in part
from any of Tenant's obligations hereunder, unless express
written notice of such intention is sent by Landlord or its
agent to Tenant. To the fullest extent permitted by Law, all
rent and other consideration paid by any Replacement Tenants
shall be applied: first, to the costs of reletting, second, to
the payment of any Rent theretofore accrued, and the residue,
if any, shall be held by Landlord and applied to the payment
of other obligations of Tenant to Landlord as the same become
due (with any remaining residue to be retained by Landlord).
Rent shall be paid without any prior demand or notice therefor
(except as expressly provided herein) and without any
deduction, set-off or counterclaim, or relief from any
valuation or appraisement laws. Landlord may apply payments
received from Tenant to any obligations of Tenant then
accrued, without regard to such obligations as may be
designated by Tenant. Landlord shall be under no obligation to
observe or perform any provision of this Lease on its part to
be observed or performed which accrues after the date of any
Default by Tenant hereunder not cured within the times
permitted hereunder. The times set forth herein for the curing
of Defaults by Tenant are of the essence of this Lease. Tenant
hereby irrevocably waives any right otherwise available under
any Law to redeem or reinstate this Lease.
25. LANDLORD'S RIGHT TO CURE. If Landlord shall fail to perform any term or
provision under this Lease required to be performed by Landlord,
Landlord shall not be deemed to be in default hereunder nor subject to
any claims for damages of any kind, unless such failure shall have
continued for a period of thirty (30) days after written notice thereof
by Tenant; provided, if the nature of Landlord's failure is such that
more than thirty (30) days are reasonably required in order to cure,
Landlord shall not be in default if Landlord commences to cure such
failure within such thirty (30) day period, and thereafter reasonably
seeks to cure such failure to completion. The aforementioned periods of
time permitted for Landlord to cure shall be extended for any period of
time during which Landlord is delayed in, or prevented from, curing due
to fire or other casualty, strikes, lock-outs or other labor troubles,
shortages of equipment or materials, governmental requirements, power
shortages or outages, acts or omissions by Tenant or other Persons, and
other causes beyond Landlord's reasonable control. If Landlord shall
fail to cure within the times permitted for cure herein, Landlord shall
be subject to such remedies as may be available to Tenant (subject to
the other provisions of this Lease); provided, in recognition that
Landlord must receive timely payments of Rent and operate the Property,
Tenant shall have no right of self-help to perform repairs or any other
obligation of Landlord, and shall have no right to withhold, set-off,
or xxxxx Rent.
26. CONVEYANCE BY LANDLORD AND LIABILITY. In case Landlord or any successor
owner of the Property shall convey or otherwise dispose of any portion
thereof in which the Premises are located, to another Person (and
nothing herein shall be construed to restrict or prevent such
conveyance or disposition), such other Person shall thereupon be and
become landlord hereunder and shall be deemed to have fully assumed and
be liable for all obligations of this Lease to be performed by Landlord
which first arise after the date of conveyance, including the return of
any Security Deposit, and Tenant shall attorn to such other Person, and
Landlord or such successor owner shall, from and after the date of
conveyance, be free of all liabilities and obligations hereunder not
then incurred. The liability of Landlord to Tenant for any default by
Landlord under this Lease or arising in connection herewith or with
Landlord's operation, management leasing, repair, renovation,
alteration, or any other matter relating to the Property or the
Premises shall be limited to the interest of Landlord in the Property
(and the rental proceeds thereof). Tenant agrees to look solely to
Landlord's interest in the Property (and the rental proceeds thereof)
for the recovery of any judgment against Landlord, and Landlord shall
not be personally liable for any such judgment or deficiency after
execution thereon. The limitations of liability contained in this
Section shall apply equally and inure to the benefit of Landlord's
present and future partners, beneficiaries, officers, directors,
trustees, shareholders, agents and employees, and their respective
partners, heirs, successors and assigns. Under no circumstances shall
any present or future general or limited partner of Landlord (if
Landlord is a
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partnership), or trustee or beneficiary (if Landlord or any partner of
Landlord is a trust) have any liability for the performance of
Landlord's obligations under this Lease. Notwithstanding the foregoing
to the contrary, Landlord shall have personal liability for insured
claims, beyond Landlord's interest In the Property (and rental proceeds
thereof), to the extent of Landlord's liability insurance coverage
available for such claims.
27. INDEMNIFICATION.
a) TENANT INDEMNIFICATION. Tenant will save and hold Landlord,
and Landlord's members, officers, directors and/or partners
and the management company (and its employees) employed by
Landlord for the management of the Property, if any, harmless
from and against all loss, damage, liability or expense
(including attorneys' fees) resulting from, claimed by or
against or incurred by Landlord;
i) Arising from any injury to any person or loss of or
damage to any property caused by or resulting from
any act or omission of Tenant or any officer, agent,
contractor, employee, guest, invitee, licensee or
visitor of Tenant in or about the Premises or
Property or from any and all claims, liability,
obligation, cost or expense (including attorneys'
fees) incurred or arising from or by reason of the
use of the Premises by Tenant, Tenant's subtenants or
others or the conduct of the business thereon or from
any activity, work, or thing done, permitted or
suffered by the Tenant, or Tenant's subtenants or
others in or about the Premises.
ii) Arising from or incurred by reason of any breach or
default in the performance of any obligation on
Tenant's part to be performed under the terms of this
Lease.
iii) Arising from (i) the handling of any Tenant's
Hazardous Materials, as defined in Section 30; or
(ii) the breach of any of the provisions of this
Lease. For the purpose of this Lease, "environmental
damages" shall mean (a) all claims, judgments,
damages, penalties, fines, costs, liabilities, and
losses (including without limitation, diminution in
the value of the Premises or any portion of the
Property, damages for the loss of or restriction on
use of rentable or usable space or of any amenity of
the Premises or any portion of the Property, and from
any adverse impact of Landlord's marketing of space);
(b) all reasonable sums paid for settlement of
claims, reasonable attorneys' fees, consultants' fees
and experts' fees; and (c) all costs incurred by
Landlord in connection with investigation or
remediation relating to the Handling of Tenant's
Hazardous Materials, whether or not required by
Environmental Laws, necessary for Landlord to make
full economic use of the Premises or any portion of
the Property, or otherwise required under this Lease.
To the extent that Landlord is held strictly liable
by a court or other governmental agency of competent
jurisdiction under any Environmental Laws, Tenant's
obligation to Landlord and the other indemnities
under the foregoing indemnification shall likewise be
without regard to fault on Tenant's part with respect
to the violation of any Environmental Law which
results in liability to the indemnitee.
b) CONCURRENT NEGLIGENCE. Notwithstanding the foregoing, in the
event of the concurrent negligence of the Tenant, its agents,
employees, sublessees, invitees, licensees, or contractors on
the one hand and that of Landlord, its partners, directors,
officers, agents employees or contractors on the other hand,
which concurrent negligence results in injury or damage to
persons or property and relates to the construction,
alteration, repair, addition to, subtraction from, improvement
to or maintenance of the Premises, Common Areas or Property,
Tenants obligation to indemnify Landlord as set forth in this
Section shall be limited to the extent of Tenant's negligence,
and that of its agents, employees, sublessees, invitees,
licensees or contractors, including Tenant's proportional
share of
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costs, attorneys' fees, and expenses incurred in connection
with any claim, action or proceeding brought with respect to
such injury or damage.
c) WORKER'S COMPENSATION. Landlord and Tenant specifically agree
that the provisions of this Section also apply to any claim of
injury or damage to the persons or property of the Tenant's
employees, and Tenant acknowledges and agrees that as to such
claims, Tenant, with respect to Landlord, does hereby waive
any right of immunity which Tenant may have under industrial
insurance (Title 51 RCW as amended and under any substitute or
replacement statute). This waiver and agreement was
specifically negotiated by Landlord and Tenant and is solely
for the benefit of Landlord and Tenant and their successors
and assigns and is not intended as a waiver of tenant's rights
of immunity under said industrial insurance for any other
purpose.
-------------------------- ---------------------------
Landlord's Initials Tenant's Initials
d) SURVIVAL. The obligations of Tenant under this Section arising
by reason of any occurrence taking place during the term of
this Lease shall survive the expiration or earlier termination
of this Lease.
e) EXCULPATION. Neither Landlord nor the management company (or
its employees) employed by Landlord shall be liable for any
loss or damage to person or property sustained by Tenant, or
other persons, which may be caused by the Premises or the
Property, or any appurtenances thereto, being out of repair,
or by the bursting or leakage of any water, gas, sewer, or
steam pipes, or by theft or by any act or neglect or omission
of any tenant or occupant of the Property, or of any other
person, or by any other cause of whatsoever nature, unless
caused by the gross negligence of Landlord or the management
company (or its employees) employed by Landlord.
28. SAFETY AND SECURITY DEVICES, SERVICES AND PROGRAMS. The parties
acknowledge that safety and security devices, services and programs
provided by Landlord, if any, while intended to deter crime and ensure
safety, may not in given instances prevent theft or other criminal
acts, or ensure safety of persons or property. The risk that any safety
or security device, service or program may not be effective, or may
malfunction, or be circumvented by a criminal, is assumed by Tenant
with respect to Tenant's property and interests, and Tenant shall
obtain Insurance coverage to the extent Tenant desires protection
against such criminal acts and other losses. Tenant agrees to cooperate
in any reasonable safety or security program developed by Landlord or
required by Law.
29. COMMUNICATIONS AND COMPUTER LINES.
a) TENANT'S LINES. Tenant may install, maintain, replace, remove
or use any communications or computer wires, cables and
related devices (collectively the "Lines") at the Property in
or serving the Premises, provided: (a) Tenant shall obtain
Landlord's prior written consent, use an experienced and
qualified contracts approved in writing by Landlord, and
comply with all of the other provisions of Section 10, (b) any
such installation, maintenance, replacement, removal or use
shall comply with all Laws applicable thereto and good work
practices, and shall not interfere with the use of any then
existing Lines at the Property, (c) an acceptable number of
spare Lines and space for additional Lines shall be maintained
for existing and future occupants of the Property, as
determined in Landlord's opinion, (d) if Tenant at any time
uses any equipment that may create an electromagnetic field
exceeding the normal insulation ratings of ordinary twisted
pair riser cable or cause radiation higher than normal
background radiation, the Lines therefor (including riser
cables) shall be appropriately insulated to prevent such
excessive electromagnetic fields or radiation, (e) as a
condition to permitting the installation of new Lines,
Landlord may require that Tenant remove existing Lines located
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in or serving the Premises, (f) Tenant's rights shall be
subject to the rights of any regulated telephone company, and
(g) Tenant shall pay all costs in connection therewith.
Landlord reserves the right to require that Tenant remove any
Lines located in or serving the Premises which are installed
in violation of these provisions, or which are at any time in
violation of any Laws or represent a dangerous or potentially
dangerous condition (whether such Lines were installed by
Tenant or any other party), within three (3) days after
written notice.
i) Notwithstanding anything to the contrary contained in
Section 15 of the Lease, unless Tenant receives a
written waiver from Landlord, Tenant shall remove any
or all Lines installed by or for Tenant within or
serving the Premises upon termination of the Lease.
Any Lines not required to be removed pursuant to this
Paragraph shall, at Landlord's option, become
property of Landlord (without payment by Landlord).
If Tenant fails to remove such Lines as required by
Landlord, or violates any other provision of this
Section, Landlord may, after twenty (20) days written
notice to Tenant, remove such Lines or remedy such
other violation, at Tenant's expense (without
limiting Landlord's other remedies available under
this Lease or applicable Law). Tenant shall not,
without the prior written consent of Landlord in each
instance, grant to any third party a security
interest or lien in or on the Lines, and any such
security interest or lien granted without Landlord's
written consent shall be null and void. Except to the
extent arising from the intentional or negligent acts
of Landlord or Landlord's agents or employees,
Landlord shall have no liability for damages arising
from, and Landlord does not warrant that the Tenant's
use of any Lines will be free from the following
(collectively called "Line Problems"): (x) any
eavesdropping or wire-tapping by unauthorized
parties, (y) any failure of any Lines to satisfy
Tenant's requirements, or (z) any shortages,
failures, variations, interruptions, disconnections,
loss or damage caused by the installation,
maintenance, replacement, use or removal of Lines by
or for other tenants or occupants at the Property, by
any failure of the environmental conditions or the
power supply for the Property to conform to any
requirements for the Lines or any associated
equipment, or any other problems associated with any
Lines by any other cause. Under no circumstances
shall any Line Problems be deemed an actual or
constructive eviction of Tenant, render Landlord
liable to Tenant for abatement of Rent, or relieve
Tenant from performance of Tenants obligations under
this Lease. Landlord in no event shall be liable for
damages by reason of loss of profits, business
interruption or other consequential damage arising
from any Line Problems.
b) LANDLORD'S LINES. Landlord may (but shall not have the
obligation to): (i) install new Lines at the Property (ii)
create additional space for Lines at the Property, and (iii)
reasonably direct, monitor and/or supervise the installation,
maintenance, replacement and removal of, the allocation and
periodic re-allocation of available space (if any) for, and
the allocation of excess capacity (if any) on, any Lines now
or hereafter installed at the Property by Landlord, Tenant or
any other party (but Landlord shall have no right to monitor
or control the information transmitted through such Lines).
Such rights shall not be in Imitation of other rights that may
be available to Landlord by Law or otherwise. If Landlord
exercises any such rights, Landlord may charge Tenant for the
costs attributable to Tenant, or may include those costs and
all other costs in Operating Expenses (including without
limitation, costs for acquiring and installing Lines and
risers to accommodate new Lines and spare Lines, any
associated computerized system and software for maintaining
records of Line connections, and the fees of any consulting
engineers and other experts); provided, any capital
expenditures included in Operating Expenses hereunder shall be
amortized (together with reasonable finance charges) over the
period of time prescribed by Section 6.b).
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30. HAZARDOUS MATERIALS. Tenant shall not transport, use, store, maintain,
generate, manufacture, handle, dispose, release or discharge any
"Hazardous Material" (as defined below) upon or about the Property, or
permit Tenant's employees, agents, contractors, and other occupants of
the Premises to engage in such activities upon or about the Property.
However, the foregoing provisions shall not prohibit the transportation
to and from, and use, storage, maintenance and handling within, the
Premises of substances customarily used in offices (or such other
business or activity expressly permitted to be undertaken in the
Premises), provided: (a) such substances shall be used and maintained
only in such quantities as are reasonably necessary for such permitted
use of the Premises, strictly in accordance with applicable Law and the
manufacturers' instructions therefor, (b) such substances shall not be
disposed of, released or discharged on the Property, and shall be
transported to and from the Premises in compliance with all applicable
Laws, and as Landlord shall reasonably require, (c) if any applicable
Law or Landlord's trash removal contractor requires that any such
substances be disposed of separately from ordinary trash, Tenant shall
make arrangements at Tenants expense for such disposal directly with a
qualified and licensed disposal company at a lawful disposal site
(subject to scheduling and approval by Landlord), and shall ensure that
disposal occurs frequently enough to prevent unnecessary storage of
such substances in the Premises, and (d) any remaining such substances
shall be completely, properly and lawfully removed from the Property
upon expiration or earlier termination of this Lease.
a) NOTIFICATION BY TENANT. Tenant shall promptly notify Landlord
of: (i) any enforcement, cleanup or other regulatory action
taken or threatened by any governmental or regulatory
authority with respect to the presence of any Hazardous
Material on the Premises or the migration thereof from or to
other property, (ii) any demands or claims made or threatened
by any party against Tenant or the Premises relating to any
loss or injury resulting from any Hazardous Material, (iii)
any release, discharge or non-routine, improper or unlawful
disposal or transportation of any Hazardous Material on or
from the Premises, and (iv) any matters where Tenant is
required by Law to give a notice to any governmental or
regulatory authority respecting any Hazardous Material on the
Premises. Landlord shall have the right (but not the
obligation) to join and participate as a party in any legal
proceedings or actions affecting the Premises initiated in
connection with any environmental, health or safety Law. At
such times as Landlord may reasonably request, Tenant shall
provide Landlord with a written list identifying any Hazardous
Material then used, stored, or maintained upon the Premises,
the use and approximate quantity of each such material, a copy
of any material safety data sheet ("MSDS") issued by the
manufacturer therefor, written information concerning the
removal, transportation and disposal of the same, and such
other information as Landlord may reasonably require or as may
be required by Law. The term "Hazardous Material" for purposes
hereof shall mean any chemical, substance, material or waste
or component thereof which is now or hereafter listed, defined
or regulated as a hazardous or toxic chemical, substance,
material or waste or component thereof by any federal, state
or local governing or regulatory body having jurisdiction, or
which would trigger any employee or community "right-to-know"
requirements adopted by any such body, or for which any such
body has adopted any requirements for the preparation or
distribution of an MSDS.
b) RELEASE OF HAZARDOUS MATERIALS. If any Hazardous Material is
released, discharged or disposed of by Tenant or any other
occupant of the Premises, or their employees, agents or
contractors, on or about the Property in violation of the
foregoing provisions, Tenant shall immediately, properly and
in compliance with applicable Laws clean up and remove the
Hazardous Material from the Property and any other affected
property and clean or replace any affected personal property
(whether or not owned by Landlord), at Tenant's expense. Such
clean up and removal work shall be subject to Landlord's prior
written approval (except in emergencies), and shall include,
without limitation, any testing, investigation, and the
preparation and implementation of any remedial action plan
required by any governmental body having jurisdiction or
reasonably required by Landlord. If Tenant shall fail to
comply with the provisions of this Section within five (5)
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days after written notice by Landlord, or such shorter time as
may be required by Law or in order to minimize any hazard to
Persons or property, Landlord may (but shall not be obligated
to) arrange for such compliance directly or as Tenant's agent
through contractors or other parties selected by Landlord, at
Tenant's expense (without limiting Landlord's other remedies
under this Lease or applicable Law). If any Hazardous Material
is released, discharged or disposed of on or about the
Property and such release, discharge or disposal is not caused
by Tenant or other occupants of the Premises, or their
employees, agents or contractors, such release, discharge or
disposal shall be deemed casualty damage under Section 12 to
the extent that the Premises or Common Areas serving the
Premises are affected thereby; in such case, Landlord and
Tenant shall have the obligations and rights respecting such
casualty damage provided under Section 12.
c) EXISTENCE OF HAZARDOUS SUBSTANCES. Tenant acknowledges that
the Premises may contain Hazardous Substances, and Tenant
accepts the Premises and the Property notwithstanding such
Hazardous Substances. If Landlord is required by any law to
take any action or remove or xxxxx any Hazardous Substances,
or if Landlord deems it necessary to conduct special
maintenance or testing procedures with regard to any Hazardous
Substances, or to remove or xxxxx any Hazardous Substances,
Landlord may take such action or conduct such procedures at
times and in a manner that Landlord deems appropriate under
the circumstances, and Tenant shall permit the same, provided
the Landlord shall proceed in such a manner as to minimize
interference with Tenant's use of the premises.
31. NOTICES. Except as expressly provided to the contrary in this Lease,
every notice or other communication to be given by either party to the
other with respect hereto or to the Premises or Property, shall be in
writing and shall not be effective for any purpose unless the same
shall be served personally or by national air courier service, or
United States certified mail, return receipt requested, postage
prepaid, addressed, if to Tenant, at Xxxxx 0000, 000 Xxxxxx Xxxxxx,
Xxxxxxx, XX 00000, and if to Landlord, at the addresses stated in
Section 1.c), or such ocher address or addresses as Landlord and Tenant
may from time to time designate by notice given as above provided.
Every notice or other communication hereunder shall be deemed to have
been given as of the third business day following the date of such
mailing (or as of any earlier date evidenced by a receipt from such
national air courier service or the United States Postal Service) or
immediately if personally delivered. Notices not sent in accordance
with the foregoing shall be of no force or effect until received by the
foregoing parties at such addresses required herein.
32. REAL ESTATE BROKERS. Tenant represents and warrants that it has had no
dealings with any real estate broker or agent in connection with the
negotiation of this Lease, except for those certain brokers whose names
are set forth in Section 1.r) (whose commission, if any, shall be paid
by Landlord pursuant to separate agreement) and that it knows of no
other real estate broker or agent who is or might be entitled to a
commission in connection with this Lease. If Tenant has dealt with any
other person or real estate broker with respect to leasing or renting
space in the Property, Tenant shall be solely responsible for the
payment of any fee due said person or firm and Tenant shall hold
Landlord free and harmless against any liability in respect thereto,
including attorneys' fees and costs. At the signing of this Lease, the
broker identified in 1.r) put space ii). represented Tenant. Each party
signing this document confirms that the prior oral and/or written
disclosure of agency was provided to him/her in this transaction. (As
required by WAC 308-124D-040).
33. SECURITY DEPOSIT. Tenant shall deposit with Landlord the amount set
forth in Section 1.p) ("Security Deposit"), upon Tenant's execution and
submission of this Lease. The Security Deposit shall serve as security
for the prompt, full and faithful performance by Tenant of the terms
and provisions of this Lease. In the event that Tenant is in Default
hereunder and fails to cure within any applicable time permitted under
this Lease, or in the event that Tenant owes any amounts to Landlord
upon the expiration of this Lease, Landlord may use or apply the whole
or
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any part of the Security Deposit for the payment of Tenant's
obligations hereunder. The use or application of the Security Deposit
or any portion thereof shall not prevent Landlord from exercising any
other right or remedy provided hereunder or under any Law and shall not
be construed as liquidated damages or a cure or waiver of any default
by Tenant. In the event the Security Deposit is reduced by such use or
application, Tenant shall deposit with Landlord within ten (10) days
after written notice, an amount sufficient to restore the full amount
of the Security Deposit. Landlord shall not be required to keep the
Security Deposit separate from Landlord's general funds or pay interest
on the Security Deposit. Any remaining portion of the Security Deposit
shall be returned to Tenant within forty-five (45) days after Tenant
has vacated the Premises in accordance with Section 14. If the Premises
shall be expanded at any time, or if the Term shall be extended at an
increased rate of Rent, at Landlord's option, the Security Deposit
shall thereupon be proportionately increased. If Landlord disposes of
its interest in the Property. Landlord shall deliver or credit the
Security Deposit to Landlord's successor in interest in the Property
and thereupon be relieved of further responsibility to Tenant with
respect to the Security Deposit.
34. ENTIRE AGREEMENT. This Lease, together with Exhibits A through D (which
collectively are hereby incorporated where referred to herein and made
a part hereof as though fully set forth), contains all the terms and
provisions between Landlord and Tenant relating to the matters set
forth herein and no prior or contemporaneous agreement or understanding
pertaining to the same shall be of any force or effect, except any such
contemporaneous agreement specifically referring to and modifying this
Lease, signed by both parties. Without limitation as to the generality
of the foregoing, Tenant hereby acknowledges and agrees that Landlords
leasing agents and field personnel are only authorized to show the
Premises and negotiate terms and conditions for leases subject to
Landlord's final approval, and are not authorized to make any
agreements, representations, understandings or obligations, binding
upon Landlord, respecting the condition of the Premises or Property,
suitability of the same for Tenant's business, or any other matter, and
no such agreements, representations, understandings or obligations not
expressly contained herein or in such contemporaneous agreement shall
be of any force or effect. Neither this Lease, nor any Riders or
Exhibits referred to above may be modified, except in writing signed by
both parties.
35. PARKING. Tenant shall have the right to lease the number of spaces
indicated in Section 1.q) on an unreserved basis. All such spaces shall
be available at the same rates as established from time to time by
Landlord for other spaces in the same location. The use by Tenant, its
employees and invitees, of the parking facilities of the Project shall
be on the terms and conditions established by Landlord or Landlord's
agent from time to time, and shall be subject to such other agreement
between Landlord and Tenant as may hereinafter be established. Tenant
shall not permit or allow any vehicles that belong to or are controlled
by Tenant or Tenants employees suppliers, shippers, customers or
invitees to be loaded, unloaded or parked in areas other than those
designated by Landlord for such activities. If Tenant permits or allows
any of the prohibited activities, then Landlord shall have the right,
without notice, in addition to such other rights and remedies that it
may have, to remove or tow away the vehicle involved and charge the
cost to Tenant, which cost shall be immediately payable upon demand by
Landlord.
36. MISCELLANEOUS.
a) AMENDMENTS. This Lease shall not be amended, changed or
modified in any way unless in writing executed by Landlord and
Tenant. Landlord shall not have waived or released any of its
rights hereunder unless in writing and executed by the
Landlord.
b) SUCCESSORS. Except as expressly provided herein, this Lease
and the obligations of Landlord and Tenant contained herein
shall bind and benefit the successors and assigns of the
parties hereto.
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c) FORCE MAJEURE. Landlord shall incur no liability to Tenant
with respect to, and shall not be responsible for any failure
to perform, any of Landlord's obligations hereunder if such
failure is caused by any reason beyond the control of Landlord
including, but not limited to strike, labor trouble,
governmental rule, regulations, ordinance, statute or
interpretation, or by fire, earthquake, civil commotion, or
failure or disruption of utility services. The amount of time
for Landlord to perform any of Landlord's obligations shall be
extended by the amount of time Landlord is delayed in
performing such obligation by reason of any force majeure
occurrence whether similar to or different from the foregoing
types of occurrences.
d) SURVIVAL OF OBLIGATIONS. Any obligations of Tenant accruing
prior to the expiration of the Lease shall survive the
termination of the Lease, and Tenant shall promptly perform
all such obligations whether or not this Lease has expired.
e) LIGHT AND AIR. No diminution or shutting off of any light, air
or view by any structure now or hereafter erected shall in any
manner affect this Lease or the obligations of Tenant
hereunder, or increase any of the obligations of Landlord
hereunder.
f) GOVERNING LAW. This Lease shall be governed by, and construed
in accordance with, the internal laws of the State of
Washington.
g) SEVERABILITY. In the event any provision of this Lease is
found to be unenforceable, the remainder of this Lease shall
not be affected, and any provision found to be invalid shall
be enforceable to the extent permitted by law. The parties
agree that in the event two different interpretations may be
given to any provision hereunder, one of which will render the
provision unenforceable, and one of which will render the
provisions enforceable, the interpretation rendering the
provision enforceable shall be adopted.
h) CAPTIONS. All captions, headings, titles, numerical references
and computer highlighting are for convenience only and shall
have no effect on the interpretation of this Lease.
i) VOLUNTARY PROGRAMS. It is understood and agreed that from time
to time the Landlord may institute certain programs for the
Property which the Landlord believes will be in the best
interest of the Property and the tenants. Such programs shall
include, but shall not be limited to a recycling program or a
ride sharing or car pooling program. Tenant agrees to promptly
comply with and carry out its obligations under such programs
as the same may exist from time to time.
j) INTERPRETATION. Tenant acknowledges that it has read and
reviewed this Lease and that it has had the opportunity to
confer with counsel in the negotiation of this Lease.
Accordingly, this Lease shall be construed neither for nor
against Landlord or Tenant, but shall be given a fair and
reasonable interpretation in accordance with the meaning, of
its terms and the intent of the parties.
k) INDEPENDENT COVENANTS. Each covenant, agreement, obligation or
other provision of this Lease to be performed by Tenant are
separate and independent covenants of Tenant, and not
dependent on any ocher provision of the Lease.
l) NUMBER AND GENDER. All terms and words used in this Lease,
regardless of the number or gender in which they are used,
shall be deemed to include the appropriate number and gender,
as the context may require.
m) TIME IS OF THE ESSENCE. Time is of the essence of this Lease
and the performance of all obligations hereunder.
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n) JOINT AND SEVERAL LIABILITY. If Tenant comprises more than one
Person, or if this Lease is guaranteed by any party, all such
persons shall be jointly and severally liable for payment of
rents and the performance of Tenant's obligations hereunder.
o) CHOICE OF LAWS. Tenant hereby submits to local jurisdiction in
the State of Washington and agrees that any action by Tenant
against Landlord shall be instituted in the State of
Washington and that Landlord shall have personal jurisdiction
over Tenant for any action brought by Landlord against Tenant.
Each of the terms and provisions of this Lease shall be
binding upon and inure to the benefit of the parties hereto,
their respective heirs, executors, administrators, guardians,
custodians, successors and assigns, subject to the provisions
of Section 21 respecting Transfers.
p) RECORDING. Neither this Lease nor any memorandum of lease or
short form lease shall be recorded by Tenant.
q) SURVIVAL. All obligations or rights of either party arising
during or attributable to the period ending upon expiration or
earlier termination of this Lease shall survive such
expiration or earlier termination.
r) AIR AND VIEW RIGHTS. This Lease does not grant any legal
rights to "light and air" outside the Premises nor any
particular view or city-scape visible from the Premises.
IN WITNESS WHEREOF, the Landlord and Tenant have executed this Lease on the date
and year first above written.
LANDLORD: TENANT:
XXXXXX SEATTLE INVESTORS I, L.L.C., N2H2, Inc.,
a Delaware limited liability company A Washington corporation
By: Xxxxxx Street Real Estate Fund I, L.P.,
a Delaware limited partnership, Manager
By: Xxxxxx Street Managers I, L.P.,
a Delaware limited partnership, General
Partner
By: WSC Managers I, Inc.,
a Delaware corporation, General Partner
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxx Xxxxxx
------------------------------- ---------------------------------
Xxxxxxx X. Xxxxxx, Xxxx Xxxxxx, COO/CFO
Vice-President
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NOTARY PAGE
STATE OF Illinois )
----------------)
) ss.
COUNTY OF Xxxx )
---------------)
I certify that I know or have satisfactory evidence that the person
appearing before me and making this acknowledgment is the person whose true
signature appears on this document.
On this ____ day of March, 1999, before me personally appeared XXXXXXX
X. XXXXXX, to me known to be the VICE PRESIDENT of WSC MANAGERS I, INC., a
Delaware corporation, the corporation that executed the within and foregoing
instrument as GENERAL PARTNER OF XXXXXX STREET MANAGERS I, L.P., a Delaware
limited partnership, the GENERAL PARTNER OF XXXXXX STREET REAL ESTATE FUND I,
L.P., a Delaware limited partnership, the MANAGER OF XXXXXX SEATTLE INVESTORS I,
L.L.C., a Delaware limited liability company, the company joint venture that
executed the within and foregoing instrument, and acknowledged the said
instrument to be the free and voluntary act and deed of said joint venture, for
the uses and purposes therein mentioned, and on oath stated that he/she was
authorized to execute said instrument.
WITNESS my hand and seal hereto affixed the day and year first above
written.
/s/ Xxxxxxxxx Xxxxx
---------------------------------------------------
Xxxxxxxxx Xxxxx
---------------------------------------------------
Type or print name
Notary Public in and for the State of Illinois
-------------
Residing at
----------------------------------------
My commission expires: 9/27/00
-----------------------------
STATE OF Washington )
----------------)
) ss.
COUNTY OF King )
---------------)
I certify that I know or have satisfactory evidence that the person
appearing before me and making this acknowledgment is the person whose true
signature appears on this document.
On this 12th day of March, 1999, before me personally appeared XXXX
XXXXXX to me known to be the COO/CFO of N2H2, INC., the corporation that
executed the within and foregoing instrument, 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 he/she was
authorized to execute said instrument and that the seal affixed, if any, is the
corporate seal of said corporation.
WITNESS my hand and seal hereto affixed the day and year first above
written.
/s/ Xxxx X. Xxxxxx
---------------------------------------------------
Xxxx X. Xxxxxx
---------------------------------------------------
Type or print name
Notary Public in and for the State of Washington
-------------
Residing at Seattle
----------------------------------------
My commission expires: 5/29/02
-----------------------------
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EXHIBIT A-1
LEGAL DESCRIPTION
That certain building located at 000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxx
Xxxxxx, Xxxxxxxxxx and situated on a portion of Block 22, X.X. Xxxxx'x
Addition to the City of Seattle, in King County, Washington, including
the vacated alley therein.
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EXHIBIT A-2
PREMISES
[ADD GRAPHIC]
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EXHIBIT B
WORK LETTER AGREEMENT
THIS WORK LETTER AGREEMENT is entered into as of the 12th day of March,
1999, by and between XXXXXX SEATTLE INVESTORS I, L.L.C., a Delaware limited
liability company ("Landlord") and N2H2, INC., a Washington corporation
("Tenant").
RECITALS:
A. Concurrently with the execution of this Work Letter Agreement,
Landlord and Tenant have entered into a lease (the "Lease") covering certain
premises (the "Premises") more particularly described in Exhibit A-2 attached to
the Lease.
B. In order to induce Tenant to enter into the Lease (which is
hereby incorporated by reference to the extent that the provisions of this Work
Letter Agreement may apply thereto) and in consideration of the mutual covenants
hereinafter contained, Landlord and Tenant hereby agree as follows:
1. TENANT IMPROVEMENTS. Reference herein to "Tenant Improvements" shall
include all work to be done in the Premises pursuant to the Tenant
Improvement Plans described in Section 3. and 4. below, including, but
not limited to, partitioning, doors, ceilings, floor coverings, wall
finishes (including paint and wall covering), electrical (including
lighting, switching, outlets, etc.), telephones, plumbing, heating,
ventilation and air conditioning, fire protection, glazing and relites,
cabinets and other millwork.
2. COMPLETION SCHEDULE. Within ten (10) days after the space planning
meeting for the 35th floor set out below, Landlord shall deliver to
Tenant, for Tenant's review and approval, a schedule (the "Work
Schedule") setting forth a timetable for the planning and completion of
the installation of the Tenant Improvements to be constructed in the
Premises, and the Commencement Date for the term of the Lease. The Work
Schedule shall set forth each of the various items of work to be done
by or approval to be given by Landlord and Tenant in connection with
the completion of the Tenant Improvements. Such Work Schedule shall be
submitted to Tenant for its approval and, upon approval by both
Landlord and Tenant, such Work Schedule shall become the basis for
completing the Tenant Improvement work. If Tenant shall fail to approve
the Work Schedule, as it may be modified after discussion between
Landlord and Tenant, within fifteen (15) working days after the date
such Work Schedule is first received by Tenant, and such failure leads
to a delay in the Substantial Completion of the Tenant Improvements
beyond the Commencement Date determined in the Section 1.k) of the
Lease, the rent obligation for the 35th floor shall commence on the
Commencement Date as determined in Section 1.k) of the Lease,
regardless of the delay.
3. 33RD FLOOR TENANT IMPROVEMENT PLANS. The construction documents have
been completed and approved by Tenant
4. 35TH FLOOR TENANT IMPROVEMENT PLANS. As soon as is practical after
April 1, 1999, Tenant agrees to meet with Landlord's architect and/or
space planner for the purpose of preparing a space plan for the layout
of the 35th floor. Based on such space plan, Landlord's architect shall
prepare final working drawings and specifications for the Tenant
Improvements. Such final working drawings and specifications may be
referred to herein as the "Tenant Improvement Plans." The Tenant
Improvement Plans must be consistent with Landlord's standard
specifications (the "Standards") for tenant improvements for the
Building, as the same may be changed from time to time by Landlord.
Tenant shall be solely responsible for the suitability of the design
and function of the Tenant Improvements for Tenant's needs and
business.
5. NON-STANDARD TENANT IMPROVEMENTS. Landlord shall permit Tenant to
deviate from the Standards for the Tenant Improvements; provided that
(a) the deviations shall not be of a lesser
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quality than the Standards; (b) the total lighting for the Premises
shall not exceed 1.20 xxxxx per rentable square foot; (c) the
deviations conform to applicable governmental regulations and necessary
governmental permits and approvals have been secured; (d) the
deviations do not require building service beyond the level normally
provided to other tenants in the Property and do not overload the
floors; and (e) Landlord has determined in its sole discretion that the
deviations are of a nature and quality that are consistent with the
overall objectives of the Landlord for the Property.
6. FINAL PRICING AND DRAWING SCHEDULE. After the preparation of the space
plan and after Tenant's written approval thereof, in accordance with
the Work Schedule, Landlord shall cause its architect to prepare and
submit to Tenant the final working drawings and specifications referred
to in Section 3. hereof. Such working drawings shall be approved by
Landlord and Tenant in accordance with the Work Schedule and shall
thereafter be submitted to the appropriate governmental body by
Landlord's architect for plan checking and the issuance of a building
permit. Landlord, with Tenant's cooperation, shall cause to be made any
changes in the plans and specifications necessary to obtain the
building permit. Concurrent with the plan checking, Landlord shall have
prepared a final pricing for Tenant's approval, in accordance with the
Work Schedule, taking into account any modifications which may be
required to reflect changes in the plans and specifications required by
the City or County in which the Premises are located. After final
approval of the working drawings, no further changes to the Tenant
Improvement Plans may be made without the prior written approval from
both Landlord and Tenant, and then only after agreement by Tenant to
pay any excess costs resulting from the design and/or construction of
such changes. Tenant hereby acknowledges that any such changes shall be
subject to the terms of Section 7. hereof.
7. CONSTRUCTION OF TENANT IMPROVEMENTS. After the Tenant Improvement Plans
have been prepared and approved, the final pricing has been approved
and a building permit for the Tenant Improvements has been issued,
Landlord shall enter into a construction contract with its contractor
for the installation of the Tenant Improvements in accordance with the
Tenant Improvement Plans. Landlord shall supervise the completion of
such work and shall use its best efforts to secure substantial
completion of the work in accordance with the Work Schedule. The cost
of such work shall be paid as provided in Section 7. hereof. Landlord
shall not be liable for any direct or indirect damages as a result of
delays in construction beyond Landlord's reasonable control, including,
but not limited to, acts of God, inability to secure governmental
approvals or permits, governmental restrictions, strikes, availability
of materials or labor or delays by Tenant (or its architect or anyone
performing services on behalf of Tenant).
8. PAYMENT OF COST OF THE TENANT IMPROVEMENTS.
a) Landlord hereby grants to Tenant a "Tenant Allowance" of up to
Forty-two Thousand Five Hundred Ninety Dollars ($42,590.00)
towards improvements on the 33rd Floor and Two Hundred
Eighty-three Thousand Nine Hundred Seventy-six Dollars
($283,976.00) towards improvements on the 35th Floor (as
defined below). Such Tenant Allowance shall be used only for:
i) Payment of the cost of preparing the space plan and
the final working drawings and specifications,
including mechanical, electrical, plumbing and
structural drawings and of all other aspects of the
Tenant Improvement Plans. The Tenant Allowance will
not be used for the payment of extraordinary design
work not included within the scope of Landlord's
building standard improvements or for payments to any
other consultants, designers or architects other than
Landlord's architect and/or space planner.
ii) The payment of plan check, permit and license fees
relating to construction of all Tenant Improvements.
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iii) Except as provided in Section 9. below, construction
of the Tenant Improvements, including, without
limitation, the following:
a) Demolition of any existing improvements in
the Premises as may be required by the
Tenant Improvement Plans.
b) Installation within all Premises of all
partitioning, doors, floor coverings,
ceilings, wall coverings and painting,
millwork and similar items.
c) All electrical wiring, lighting fixtures,
outlets and switches, and other electrical
work to be installed within the Premises.
d) The finishing and installation of all duct
work, terminal boxes, diffusers and
accessories required for the completion of
the heating, ventilation and air
conditioning systems within the Premises,
including the cost of meter and key control
for after-hour air conditioning.
e) Any additional Tenant requirements
including, but not limited to, odor control,
special heating, ventilation and air
conditioning, noise or vibration control or
other special systems.
f) All fire and like safety control systems
such as fire walls, sprinklers, halon, fire
alarms, including piping, wiring and
accessories installed within the Premises.
g) All plumbing, fixtures, pipes and
accessories to be installed within the
Premises.
h) Testing and inspection costs.
i) Contractor's fees, including but not limited
to any fees based on general conditions.
j) Demolition of any existing build-out
inconsistent with the Tenant Improvement
Plans.
k) Construction Management Fee of Five percent
(5%) of the total cost of the Tenant
Improvements.
b) All other costs to be expended by Landlord in the construction
of the Tenant Improvements, including those costs incurred by
Landlord for construction of elements of the Tenant
Improvements in the Premises, which construction was performed
by Landlord prior to the execution of this Lease by Landlord
and Tenant (i.e., during or after the construction of the base
Building) and which construction is for the benefit of tenants
and is customarily performed by Landlord prior to the
execution of leases for such space in the Property for reasons
of economics (examples of such construction would include the
extension of mechanical [including heating, ventilating and
air conditioning systems] and electrical distribution systems
outside of the core of the Building, wall construction, column
enclosures and painting outside of the core of the Building,
ceiling hanger wires and window treatment).
c) The cost of each shall be charged against the Tenant
Allowance. In the event that the cost of installing the Tenant
Improvements, as established by Landlord's final pricing
schedule, shall exceed the Tenant Allowance, or if any of the
Tenant Improvements are not to be paid out of the Tenant
Allowance as provided in
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Section 8.a) above, the excess shall be paid by Tenant to
Landlord prior to the commencement of construction of the
Tenant Improvements. Notwithstanding the foregoing, the Tenant
Allowance overages anticipated for the 33rd floor will be
deducted from the Tenant Allowance for the 35th floor. The
final amount to be so deducted shall be finalized within
ninety (90) days of Tenant's occupancy of the 33rd floor. If,
and only if, Tenant elects to continue to occupy the 33rd
floor space, at Tenant's option. Landlord shall amortize the
amount previously so deducted over five (5) years at 12% per
annum and provide the full Tenant Allowance for the 35th floor
detailed above.
i) In the event that, after the Tenant Improvement Plans
have been prepared and a price therefore established
by Landlord, Tenant shall require any changes or
substitutions to the Tenant Improvement Plans, any
additional costs thereof shall be paid by Tenant to
Landlord prior to the commencement of such work.
Landlord shall have the right to decline Tenant's
request for a change to the Tenant Improvement Plans
if such changes are inconsistent with Sections 3. and
4. above, or if the change would, in Landlord's
opinion, unreasonably delay construct/on of the
Tenant Improvements.
ii) In the event that the cost of the Tenant Improvements
increases as set forth in Landlord's final pricing
due to the requirements of any governmental agency,
Tenant shall pay Landlord the amount of such increase
within five (5) days of Landlord's written notice;
provided, however, that Landlord shall first apply
toward such increase any remaining balance in the
Tenant Allowance.
9. SHELL AND CORE CONDITIONS. Landlord shall pay for any initial expenses
due to asbestos-containing materials ("ACM") in the fireproofing.
Subsequent to Tenant's occupancy of the Premises and commencement of
this Lease, Tenant shall be solely responsible for any future costs
related to ACM that arise in conjunction with Tenant's modifications of
the Premises. If, however, asbestos work is required but is not due to
any Tenant initiated modification of the Premises, with the exception
of work required of Tenant by law or statute, the Landlord shall bear
sole responsibility for any such costs. Any ACM related costs
associated with the removal of Tenants Work in Section 10.c) or
Tenant's Lines in Section 29.a) i) shall be paid by Landlord.
10. BASE BUILDING IMPROVEMENTS. Landlord, at its sole expense, on both the
33rd and 35th floors, shall demolish the existing ceiling grid and
install a Building-standard sprinkler system and a new 2' x 2'
Building-standard grid. Landlord shall purchase and prepare for
installation deep cell parabolic light fixtures (up to 45 for floor 33
and 144 for floor 35) and new Building-standard diffusers (up to 37 for
floor 33 and 119 for floor 35). It shall be Tenant's responsibility to
install the ceiling tiles, light fixtures and diffusers in the ceiling
grid.
Additionally, Landlord, at its own expense, shall demolish the existing
buildout on the 35th floor as required by the 35th floor space Plan and
install a Building-standard sprinkler system.
11. PERSONAL PROPERTY. Tenant shall be solely responsible for procuring or
installing in the Premises any trade fixtures, equipment, furniture,
furnishings, telephone equipment, computer cabling or other personal
property (collectively, "Personal Property") to be used in the Premises
by Tenant, and the cost of such Personal Property shall be paid by
Tenant. Tenant shall conform to the Building's wiring standards in
installing any telephone and computer equipment and shall be subject to
any and all rules of the site during construction of the Tenant
Improvements.
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IN WITNESS WHEREOF, this Work Lease Agreement is executed as of the date first
above written.
LANDLORD: TENANT:
XXXXXX SEATTLE INVESTORS I, L.L.C. N2H2, INC.,
a Delaware limited liability company a Washington corporation
By:
Xxxxxx Street Real Estate Fund I, L.P., a Delaware
limited partnership, Manager
By:
Xxxxxx Street Managers I, L.P., a Delaware
limited partnership, General Partner
By: WSC Managers I, Inc., a Delaware
corporation, General Partner
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxx Xxxxxx
-------------------------------- --------------------------------
Xxxxxxx X. Xxxxxx, Xxxx Xxxxxx,
Vice President COO/CFO
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EXHIBIT C
ADDITIONAL TERMS AND CONDITIONS
1. OPTION TO TERMINATE. Subject to the following provisions, Tenant shall
have an option to terminate the lease on the 33rd floor space ("Option
to Terminate") as defined in Exhibit C-1, effective as of October 31,
1999 (the "Termination Date"). The Option to Terminate is granted
subject to the following terms and conditions:
a) TERMS. Tenant occupies the entire 35th floor of the Building
per this Lease.
b) NOTICE. Tenant gives Landlord a written notice of Tenant's
election to exercise the Option to Terminate, which notice is
to be given no later than 5:00 p.m., July 30, 1999; and,
c) NO DEFAULT. Tenant is not in default under the Lease either on
the date that Tenant exercises the Option to Terminate, or
unless waived in writing by Landlord, on the Termination Date;
and,
d) CONDITION. This Option to Terminate is granted only subject to
the Terms specified above. Under no circumstances shall the
Option to Terminate be used to negotiate a rental reduction
with Landlord. The Option to Terminate is not intended to
permit Tenant to move its operations to other leased premises
within the city limits of Seattle or Bellevue at a lesser
rental.
e) 33RD FLOOR LINES REMOVAL. The requirement to remove the Lines
from the 33rd floor space upon termination shall be delayed
until the new tenant for the 33rd Floor space makes a decision
whether to re-use the Lines or not. If the new tenant so
declines, Tenant shall immediately remove the Lines pursuant
to Section 29.a)i) of the Lease. If the new tenant elects to
re-use the existing Lines, the requirement to remove the Lines
shall be waived.
2. RIGHT OF FIRST REFUSAL. Provided that as of the date of exercise there
has been no event of default on the part of Tenant, Tenant shall have
the right of first refusal to lease space on the 36th floor which
becomes vacant and available for lease ("First Refusal Space").
(Landlord agrees that, prior to entering into a commitment with a third
party for the leasing of all or a portion of the First Refusal Space,
Tenant shall be given written notice thereof ("Notice"). The notice
shall contain an offer by Landlord to lease the First Refusal Space at
a price and upon terms that Landlord has negotiated with a third party
with the Term for the existing Premises being extended beyond the
expiration date at those corresponding rates per square foot so as to
be coterminous. Tenant shall have the right to lease the First Refusal
Space by agreeing in writing within three (3) business days to match
the terms agreed upon between the Landlord and a third party. Tenant
may elect to lease the First Refusal Space by giving written notice
thereof to Landlord within three (3) business days after receipt of
notice. If Tenant fails to timely give notice of its election, or if
Tenant notifies Landlord that it declines to elect to lease the First
Refusal Space, or if an amendment incorporating such First Refusal
Space is not executed by Tenant within thirty (30) days of the date
Tenant receives such amendment, Landlord shall have the right to lease
the First Refusal Space to any third party at any price and upon any
other terms and conditions as Landlord shall in its sole discretion
determine.
3. SECURITY DEPOSIT. As material consideration for Landlord to enter into
this Lease. Tenant shall provide upon Lease execution an additional
$5,000.00 for a total of $45,000.00 which shall be increased no later
than July 30, 1999 to $80,000.00.
4. LETTER OF CREDIT. As material consideration for Landlord to enter into
this Lease, Tenant shall provide, by July 30, 1999, an irrevocable
Standby Letter of Credit equal to $315,000.00 issued in
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favor of Landlord by a U.S. commercial bank acceptable to Landlord in
Landlord's reasonable discretion as security for Tenant's performance
of its monetary obligations under the Terms of this Lease ("Letter of
Credit"). The Letter of Credit shall be in a form acceptable to
Landlord for a term of five (5) years but Landlord shall allow an
annual release of funds from the Letter of Credit such that the total
amount remaining at each subsequent anniversary is equal to the
following: as of August 1, 2000: $252,000.00; as of August 1, 2001:
$189,000.00; as of August 1, 2002: $126,000.00; as of August 1, 2003:
$63,000.00. Landlord shall be entitled to draw on such Letter of Credit
as often as necessary to cure any of Tenant's monetary defaults under
the Lease. The use or application of the Letter of Credit or any
portion thereof shall not prevent Landlord from exercising any other
right or remedy provided hereunder or under any Law including the right
to evict the Tenant pursuant to RCW 59.12., and shall not be construed
as liquidated damages or a cure or waiver of any default by Tenant. In
the event the Letter of Credit is reduced by such use or application,
Tenant shall deposit with the above bank issuing the Letter of Credit
within ten (10) days after written notice, an amount sufficient to
restore the full amount of the Letter of Credit.
5. TENANT DELAY. Landlord shall be under no obligation to commence
construction of the Tenant Improvements on the 35th Floor until the
Security Deposit and Letter of Credit are received by Landlord and are
in full force and effect. Any delay in providing these security
instruments shall constitute a tenant delay and rent will commence in
accordance with Paragraph 1.k. of the Lease.
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EXHIBIT C-1
RULES
FLOOR 33
[INSERT GRAPHIC OF "PREMISES"]
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EXHIBIT D
RULES
1. On Saturdays, Sundays and Holidays, and on other days between the hours
of 6:00 P.M. and 8:00 A M. the following day, or such other hours as
Landlord shall determine from time to time, access to the Property
and/or to the passageways, entrances, exits, shipping areas, halls,
corridors, elevators or stairways and other areas in the Property may
be restricted and access gained by use of a key to the outside doors of
the Property, or pursuant to such security procedures Landlord may from
time to time impose. All such areas, and all roofs, are not for use of
the general public and Landlord shall in all cases retain the right to
control and prevent access thereto by all persons whose presence in the
judgment of Landlord shall be prejudicial to the safety, character,
reputation and interests of the Property and its tenants provided,
however, that nothing herein contained shall be construed to prevent
such access to persons with whom Tenant deals in the normal course of
Tenant's business unless such persons are engaged in activities which
are illegal or violate these Rules. No Tenant and no employee or
invitees of Tenant shall enter into areas reserved for the exclusive
use of Landlord, its employees or invitees. Tenant shall keep doors to
corridors and lobbies closed except when persons are entering or
leaving.
2. Tenant shall not paint, display, inscribe, maintain or affix any sign,
placard, picture, advertisement, name, notice, lettering or direction
on any part of the outside or inside of the Property, or on any part of
the inside of the Premises which can be seen from the outside of the
Premises, without the prior consent of Landlord, and then only such
name or names or matter and in such color, size, style, character and
material as may be first approved by Landlord in writing. Landlord
shall prescribe the suite number and identification sign for the
Premises (which shall be prepared and installed by Landlord at Tenant's
expense). Landlord reserves the right to remove at Tenant's expense all
matter not so installed or approved without notice to Tenant.
3. Tenant shall not in any manner use the name of the Property for any
purpose other than that of the business address of the Tenant, or use
any picture or likeness of the Property, in any letterheads, envelopes,
circulars, notices, advertisements, containers or wrapping material
without Landlord's express consent in writing.
4. Tenant shall not place anything or allow anything to be placed in the
Premises near the glass of any door, partition, wall or window which
may be unsightly from outside the Premises, and Tenant shall not place
or permit to be placed any article of any kind on any window ledge or
on the exterior walls. Blinds, shades, awnings or other forms of inside
or outside window ventilators or similar devices, shall not be placed
in or about the outside windows of the Premises except to the extent,
if any, that the character, shape, color, material and make thereof is
first approved by the Landlord.
5. Furniture, freight and other large or heavy articles, and all other
deliveries may be brought into the Property only at times and in the
manner designated by Landlord, and always at the Tenant's sole
responsibility and risk. All damage done to the Property by moving or
maintaining such furniture, freight or articles shall be repaired by
Landlord at Tenant's expense. Landlord may inspect items brought into
the Property or Premises with respect to weight or dangerous nature.
Landlord may require that all furniture, equipment, cartons and similar
articles removed from the Premises or the Property be listed and a
removal permit therefor first be obtained from Landlord. Tenant shall
not take or permit to be taken in or out of other entrances or
elevators of the Property, any item normally taken, or which Landlord
otherwise reasonably requires to be taken, in or out through service
doors or on freight elevators. Tenant shall not allow anything to
remain in or obstruct in any way, any lobby, corridor, sidewalk,
passageway, entrance, exit, hall, stairway, shipping area, or other
such area. Tenant shall move all supplies, furniture and equipment as
soon as received directly to the Premises, and shall move all such
items and waste (other than waste customarily removed by Property
employees) that are at any time being taken
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from the Premises directly to the areas designated for disposal. Any
hand-carts used at the Property shall have rubber wheels.
6. Tenant shall not overload any floor or part thereof in the Premises, or
Property, including any public corridors or elevators therein bringing
in or removing any large or heavy articles, and Landlord may direct and
control the location of safes and all other heavy articles and require
supplementary supports at Tenant's expense of such material and
dimensions as Landlord may deem necessary to properly distribute the
weight.
7. Tenant shall not attach or permit to be attached additional locks or
similar devices to any door or window, change existing locks or the
mechanism thereof, or make or permit to be made any keys for any door
other than those provided by Landlord. If more than two keys for one
lock are desired, Landlord will provide them upon payment therefor by
Tenant. Tenant, upon termination of its tenancy, shall deliver to the
Landlord all keys of offices, rooms and toilet rooms which have been
furnished Tenant or which the Tenant shall have had made, and in the
event of loss of any keys so furnished shall pay Landlord therefor.
8. If Tenant desires signal, communication, alarm or other utility or
similar service connections installed or changed, Tenant shall not
install or change the same without the prior approval of Landlord, and
then only under Landlord's direction at Tenant's expense. Tenant shall
not install in the Premises any equipment which requires more electric
current than Landlord is required to provide under this Lease, without
Landlord's prior approval and Tenant shall ascertain from Landlord the
maximum amount of load or demand for or use of electrical current which
can safely be permitted in the Premises, taking into account the
capacity of electric wiring in the Property and the Premises and the
needs of tenants of the Property, and shall not in any event connect a
greater load than such safe capacity.
9. Tenant shall not obtain for use upon the Premises ice, drinking water,
towel, janitor and other similar services, except from Persons approved
by the Landlord. Any Person engaged by Tenant to provide janitor or
other services shall be subject to direction by the manager or security
personnel of the Property.
10. The toilet rooms, urinals, wash bowls and other such 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 Tenant
who, or whose employees or invitees shall have caused it.
11. The janitorial closets, utility closets, telephone closets, broom
closets, electrical closets, storage closets, and other such closets,
rooms and areas shall be used only for the purposes and in the manner
designated by Landlord, and may not be used by tenants, or their
contractors, agents, employees, or other parties without Landlord's
prior written consent.
12. Landlord reserves the right to exclude or expel from the Property any
person who, in the judgment of Landlord, is intoxicated or under the
influence of liquor or drugs, or who shall in any manner do any act in
violation of any of these Rules. Tenant shall not at any time
manufacture, sell, use or give away, any spirituous, fermented,
intoxicating or alcoholic liquors on the Premises, nor permit any of
the same to occur (except in connection with occasional social or
business events conducted in the Premises which do not violate any Laws
or bother or annoy any other tenants). Tenant shall not at any time
sell, purchase or give away, food in any form by or to any of Tenant's
agents or employees or any other parties on the Premises, nor permit
any of the same to occur (other than in lunch rooms or kitchens for
employees as may be permitted or installed by Landlord, which does not
violate any Laws or bother or annoy any other tenant).
13. Tenant shall not make any room-to-room canvass to solicit business or
information or to distribute any article or material to or from other
tenants or occupants of the Property and shall not exhibit,
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sell or offer to sell, use, rent or exchange any products or services
in or from the Premises unless ordinarily embraced within the Tenant's
use of the Premises specified in the Lease.
14. Tenant shall not waste electricity, water, heat or air conditioning or
other utilities or services, and agrees to cooperate fully with
Landlord to assure the most effective and energy efficient operation of
the Property and shall not allow the adjustment (except by Landlord's
authorized Property personnel) of any controls. Tenant shall keep
corridor doors closed and shall not open any windows, except that if
the air circulation shall not be in operation, windows which are
openable may be opened with Landlord's consent. As a condition to
claiming any deficiency in the air-conditioning or ventilation services
provided by Landlord, Tenant shall close any blinds or drapes in the
Premises to prevent or minimize direct sunlight. Space heaters or other
air conditioning appliances are strictly prohibited.
15. Tenant shall conduct no auction, fire or "going out of business sale"
or bankruptcy sale in or from the Premises, and such prohibition shall
apply to Tenant's creditors.
16. Tenant shall cooperate and comply with any reasonable safety or
security programs, including fire drills and air raid drills, and the
appointment of "fire wardens" developed by Landlord for the Property,
or required by Law. Before leaving the Premises unattended, Tenant
shall close and securely lock all doors or other means of entry to the
Premises and shut off all lights and water faucets in the Premises
(except heat to the extent necessary to prevent the freezing or
bursting of pipes).
17. Tenant will comply with all municipal, county, state, federal or other
government laws, statutes, codes, regulations and other requirements,
including without limitation, environmental, health, safety and police
requirements and regulations respecting the Premises, now or
hereinafter in force, at its sole cost, and will not use the Premises
for any immoral purposes.
18. Tenant shall not (i) carry on any business, activity or service except
those ordinarily embraced within the permitted use of the Premises
specified in the Lease and more particularly, but without limiting the
generality of the foregoing, shall not (ii) install or operate any
internal combustion engine, boiler, machinery, refrigerating, heating
or air conditioning equipment in or about the Premises, (iii) use the
Premises for housing, lodging or sleeping purposes or for the washing
of clothes, (iv) place any radio or television antennae other than
inside of the Premises, (v) operate or permit to be operated any
musical or sound producing instrument or device which may be heard
outside the Premises, (vi) use any source of power other than
electricity, (vii) operate any electrical or other device from which
may emanate electrical or other waves which may interfere with or
impair radio, television, microwave, or other broadcasting or reception
from or in the Property or elsewhere, (viii) bring or permit any
bicycle or other vehicle, or dog (except in the company of a blind
person or except where specifically permitted) or other animal or bird
in the Property, (ix) make or permit objectionable noise or odor to
emanate from the Premises, (x) do anything in or about the Premises
tending to create or maintain a nuisance or do any act tending to
injure the reputation of the Property, (xi) throw or permit to be
thrown or dropped any article from any window or other opening of the
Property, (xii) use or permit upon the Premises anything that will
invalidate or increase the rate of insurance on any policies of
insurance now or hereafter carried on the Property or violate the
certificates of occupancy issued for the premises or the Property,
(xiii) use the Premises for any purpose, or permit upon the Premises
anything, that may be dangerous to persons or property (including but
not limited to flammable oils, fluids, paints, chemicals, firearms or
any explosive articles or materials) nor (xiv) do or permit anything to
be done upon the Premises in any way tending to disturb any other
tenant at the Property or the occupants of neighboring property.
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19. If the Property shall now or hereafter contain a building parking
structure or outer parking area or facility, the following Rules shall
apply in such areas or facilities:
a) Parking shall be available in areas designated generally for
tenant parking, for such daily or monthly charges as Landlord
may establish from time to time, or as may be provided in any
Parking Agreement attached hereto (which, when signed by both
parties as provided therein, shall thereupon become
effective). In all cases, parking for Tenant and its employees
and visitors shall be on a "first come, first served,"
unassigned basis, with Landlord and other tenants at the
Property, and their employees and visitors, and other Persons
to whom Landlord shall grant the right or who shall otherwise
have the right to use the same, all subject to these Rules, as
the same may be amended or supplemented, and applied on a
non-discriminatory basis, all as further described in Section
7 of the Lease. Notwithstanding the foregoing to the contrary,
Landlord reserves the right to assign specific spaces, and to
reserve spaces for visitors, small cars, handicapped
individuals, and other tenants, visitors of tenants or other
Persons, and Tenant and its employees and visitors shall not
park in any such assigned or reserved spaces. Landlord may
restrict or prohibit full size vans and other large vehicles.
b) In case of any violation of these provisions, Landlord may
refuse to permit the violator to park, and may remove the
vehicle owned or driven by the violator from the Property
without liability whatsoever, at such violator's risk and
expense. Landlord reserves the right to close all or a portion
of the parking areas or facilities in order to make repairs or
perform maintenance services, or to alter, modify, re-stripe
or renovate the same, or if required by casualty, strike,
condemnation, act of God, Law or governmental requirement, or
any other reason beyond Landlord's reasonable control. In the
event access is denied for any reason, any monthly parking
charges shall be abated to the extent access is denied, as
Tenant's sole recourse. Tenant acknowledges that such parking
areas or facilities may be operated by an independent
contractor not affiliated with Landlord, and Tenant
acknowledges that in such event, Landlord shall have no
liability for claims arising through acts or omissions of such
independent contractor, if such contractor is reputable.
c) Hours shall be 6:00 A.M. to 8:00 P.M., Monday through Friday,
and 10:00 A.M. to 1:00 P.M. on Saturdays excluding Holidays,
or such other hours as may be reasonably established by
Landlord or its parking operator from time to time; cars must
be parked entirely within the stall lines, and only small cars
may be parked in areas reserved for small cars; all
directional signs and arrows must be observed; the speed limit
shall be 5 miles per hour, spaces reserved for handicapped
parking must be used only by vehicles properly designated;
every xxxxxx is required to park and lock his own car;
washing, waxing, cleaning or servicing of any vehicle is
prohibited; parking spaces may be used only for parking
automobiles; parking is prohibited in areas: (a) not striped
or designated for parking, (b) aisles, (c) where "no parking"
signs are posted, (d) on ramps, and (e) loading areas and
other specially designated areas. Delivery trucks and vehicles
shall use only those areas designated therefor.
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