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EXHIBIT 10.9
TWO UNION SQUARE
SEATTLE, WASHINGTON
OFFICE LEASE
TABLE OF CONTENTS
BASIC LEASE INFORMATION........................................................1
RENT PAYMENT...................................................................2
ANNUAL RENT ADJUSTMENT (OPERATING EXPENSES)....................................4
REAL PROPERTY DESCRIPTION AND TAXES............................................5
POSSESSION.....................................................................5
ACCEPTANCE AND CARE OF PREMISES................................................6
ALTERATIONS....................................................................6
INSPECTION AND REPAIRS.........................................................7
SERVICES BY LESSOR.............................................................7
FIRE OR OTHER CASUALTY.........................................................9
WAIVER OF SUBROGATION.........................................................10
USES..........................................................................10
SIGNS AND ADVERTISING.........................................................10
ACCIDENTS AND INDEMNITY.......................................................11
LIENS AND INSOLVENCY..........................................................12
DEFAULT AND RE-ENTRY..........................................................12
REMOVAL OF PROPERTY AND REPLACEMENT OF NON-STANDARD ITEMS.....................12
NON-WAIVER....................................................................13
COSTS AND ATTORNEYS' FEES.....................................................13
PRIORITY......................................................................13
CONDEMNATION..................................................................13
ASSIGNMENT AND SUBLETTING.....................................................14
RULES, REGULATIONS AND MISCELLANEOUS..........................................16
SUCCESSORS....................................................................19
SHARED TENANT SERVICES........................................................19
AMERICAN DISABILITIES ACT (ADA) COMPLIANCE....................................19
OPTION TO EXTEND..............................................................20
FIRST RIGHT TO LEASE..........................................................22
PARKING.......................................................................23
LESSEE IMPROVEMENT ALLOWANCE..................................................23
INTERNAP NETWORK SERVICES, INC., LESSEE
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XXX XXXXX XXXXXX
XXXXXXX, XXXXXXXXXX
OFFICE LEASE
THIS LEASE, made this June 11, 1998 between: UNION SQUARE LIMITED
PARTNERSHIP, a Washington Limited Partnership, (Lessor) and INTERNAP NETWORK
SERVICES, INC., a Washington corporation (Lessee).
Lessee, in consideration of this Lease, covenants and agrees with Lessor
as follows:
1. BASIC LEASE INFORMATION
1.1 Leased Premises. Lessee hereby leases from Lessor, Room(s) 1001-1037
(the Leased Premises) as outlined in red on the attached print marked Exhibit A
in the Building at Seattle, Washington, known as Two Union Square (the
Building), and situated on the real property described in Section 4 (the Land).
1.2 Floor Areas. For purposes of this Lease, the usable area of the
Leased Premises is deemed to be 19,225 square feet. The rentable area of the
Leased Premises is deemed to be 20,675 square feet. The Leased Premises are
deemed to be 1.96132 percent of the rentable area of the Building. In the event
a portion of the Building is damaged or any other event or change occurs which
alters the usable or rentable areas of the Leased Premises or the Building,
Lessor may appropriately adjust the foregoing areas and percent. Usable and
rentable areas shall mean such areas as defined generally by the Building
Owners and Managers Association International in its "Standard Method for
Measuring Floor Area in Office Buildings" (American National Standard ANSIZ
65.1-1996). Whenever areas are herein referred to generally, it shall mean
rentable area. Lessee has undertaken such examination of rentable and usable
areas of the Building as it desires and agrees with the areas set forth above.
1.3 Term. The lease term shall be five (5) years, commencing August 15,
1998, and ending August 14, 2003, subject to Lessee's rights in Section 27.
1.4 Rent. The Base Monthly Rent, payable without demand in advance on the
first day of each calendar month, shall be:
$46,088.00 commencing Sept. 15, 1998 and ending August 31, 2000.
$48,242.00 commencing Sept., 1, 2000 and ending August 14, 2003.
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1.5 Base Indices
Consumer Price Index for September 1998.
Cost of electricity per kilowatt-hour (average) for 12 months ending
September 30, 1998.
Janitorial hourly labor rate as of September 30, 1998.
Operating Cost Adjustment Base: $6.87 per sq. ft., per yr.
The first rent adjustment pursuant to Section 3 will be January 1,
2000.
1.6 Use. The Leased Premises shall be used only for the purposes of a
business office.
1.7 Lessee's Address for Notices if Other Than the Leased Premises:
1.8 Lessor's Address for Notices and Payment of Rent:
UNICO Properties, Inc.
Rainier Tower
0000 0xx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
1.9 Exhibits and Other Attachments Which are Part of the Lease:
Exhibit A: Print with Leased Premises outlined in red on standard
floor plan.
Exhibit B: Initial Improvement of Leased Premises.
Exhibit C: Janitorial Service.
1.10 Security Deposit: $46,088.00
2. RENT PAYMENT
Lessee shall pay the Base Monthly Rent and other charges provided for in
this Lease, in lawful money of the United States on or before their specified
due dates to Lessor at the address specified in Section 1.8, or to such other
party or at such other place as Lessor may hereafter from time to time
designate in writing. All rent which is five (5) days past due shall bear
interest at the rate of one percent (1%) per month from the date rent is due
until paid. If the maximum annual rate of interest permitted by applicable law
shall be less than the rate of interest provided
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for herein, then all past due payments of rent shall bear interest at the
maximum rate permitted by applicable law from due date until paid. Lessee
acknowledges that late payment by Lessee to Lessor of rent will cause Lessor to
incur costs not contemplated by this Lease, the exact amount of such costs
being extremely difficult and economically impractical to ascertain. Therefore,
if any payment of rent due from Lessee is not received by Lessor within 10 days
after the due date, Lessee shall pay to Lessor (in addition to the interest
above provided) a late charge of Fifty Dollars ($50). The parties agree that
this late charge represents a fair and reasonable estimate of the costs that
Lessor will incur by reason of late payment by Lessee and is in addition to any
interest charges on past due rent. The term "rent" when used in this Lease
shall include Base Monthly Rent and all other amounts however designated
payable by Lessee to Lessor hereunder.
3. ANNUAL RENT ADJUSTMENT (OPERATING EXPENSES)
3.1 A portion of the initial rental rate shall be adjusted January 1 of
each year during the term of this Lease commencing 2000. Three separate
indicators, each to be factored separately by one-third of the Operating Cost
Adjustment Base, are used to provide a reasonably broad base to determine the
amount of such adjustment. These indicators are the Consumer Price Index, the
cost of electricity and janitorial hourly labor rate.
3.2 The base indices for the Consumer Price Index, the cost of
electricity and janitorial hourly labor rate, shall be as stated in Section
1.5. Succeeding indices for each of these indices will be calculated annually
thereafter, using the succeeding data for the month of September, 12-month
period ending September 30, and September 30, respectively. The ratio that each
succeeding index bears to its base index shall be reduced by 1.00 and
multiplied by one-third of the Operating Cost Adjustment Base, and by the
rentable area of the Leased Premises. Each January 1, commencing the calendar
year specified in Section 1.5, the Base Monthly Rent otherwise provided for in
this Lease shall be increased by 1/12th the sum of the amounts so determined.
In no event shall the Base Monthly Rent be decreased.
3.3 The Consumer Price Index to be used shall be the Consumer Price Index
for all urban consumers, U.S. city average, all items, series 1982-84 equals
100 (as published by the U.S. Department of Labor, Bureau of Statistics). If
this index is revised or changed (as, for example, by taking the average index
for different years as the base figure of 100), the base index shall be
adjusted accordingly. If this index is discontinued, the index promulgated by
the Department of Labor, which most closely approximates the above-referenced
index, shall be used and the base index shall be adjusted accordingly.
3.4 The cost of electricity to be used shall be the average cost to
Lessor per kilowatt-hour of electricity consumed in the Building for the
12-month periods ending the September 30 specified in Section 1.5 and each
September 30 thereafter.
3.5 The janitorial hourly labor rate to be used shall be the hourly
compensation paid to persons employed as janitors in the Building, including
all applicable taxes and fringe benefits payable by employers.
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4. REAL PROPERTY DESCRIPTION AND TAXES
4.1 The legal description of the Land is:
Commencing at the most southwesterly corner of Xxx 00, xx Xxxxx 00,
Xxxxxxxx to Town of Seattle (commonly known as X.X. Xxxxx'x Fifth Addition
to City of Seattle), according to plat recorded in Volume 1 of Plats, page
89, in King County, Washington; thence north 30 degrees 37'08" west along
the westerly line of said block 119.84 feet, to the true point of
beginning; thence north 59 degrees 20'00" east 105.15 feet; thence north
30 degrees 40'32" west 38.89 feet; thence north 59 degrees 23'00" east
14.80 feet; thence north 30 degrees 37'00" west 0.55 feet; thence north 59
degrees 20'14" east 135.80 feet to the easterly line of said block; thence
south 30 degrees 35'43" east 116.45 feet to the westerly margin of
Interstate No. 5; thence north 59 degrees 24'17" east 33.00 feet to the
centerline of vacated Seventh Avenue; thence north 30 degrees 35'43" west
along said centerline 311.89 feet to the southerly margin of Union Street
as created by City of Seattle Ordinance No. 18188; thence south 59 degrees
22'04" west along said southerly margin 288.79 feet to the easterly margin
of Sixth Avenue; thence south 30 degrees 37'08" east 234.99 feet to the
true point of beginning; and Xxxx 0, 0, 0 xxx 0 xx Xxxxx 64, of said
addition except the portions thereof condemned under King County Superior
Court Cause Nos. 62589, 570519 and 566654; together with portion of
vacated alley and Seventh Avenue lying adjacent to and abutting thereon as
provided by Ordinance Nos. 107299 and 111138, respectively, of the City of
Seattle, and portion of vacated alley conveyed to Lessor by deed recorded
under King County Receiving No. 8010090702.
4.2 Lessor shall pay all real property taxes and assessments which may
be levied against the Building and the Land. If the amount of such real property
taxes and assessment installments payable in any calendar year during the lease
term exceeds the amount thereof payable during the calendar year the lease term
commences, then on April 1 and October 1 of each such year, Lessee shall pay
Lessor an amount equal to one-half of such excess multiplied by the percentage
in Section 1.2. Upon Lessee's request, Lessor shall furnish copies of the real
property tax statement for the year in which the additional payment is requested
and the year the lease term commenced.
The foregoing charges constitute additional rent, which shall be deemed to
accrue uniformly during the calendar year in which the payment is due. Payment
under the provisions of this Section for the year the lease term ends shall be
prorated, based on reasonable projections of the increase through the
termination of this Lease and shall be due thirty (30) days before such
termination.
5. POSSESSION
5.1 In the event of the inability of Lessor to deliver possession of the
Leased Premises or any portion thereof, at the time of the commencement of the
term of this Lease, Lessor shall not be liable for any damage caused thereby,
nor shall this Lease thereby become void or voidable. Lessee shall not be liable
for payment of any rent until such time as Lessor can deliver possession,
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except as may be otherwise provided in an Exhibit to this Lease. If Lessor
shall deliver possession of the Leased Premises to Lessee prior to the
commencement date of this Lease and Lessee agrees to accept the same at such
time, both Lessor and Lessee agree to be bound by all provisions and
obligations of this Lease during the period of occupancy prior to commencement,
including the payment of rent at the same monthly rate, prorated for the prior
period.
5.2 Notwithstanding the foregoing, Lessor will proceed diligently and in
good faith to complete all of the tenant improvement work as outlined in
Section 30 and Exhibit B and to deliver the Leased Premises to Lessee in a
substantially completed condition on August 15, 1998 subject to delays caused
by Lessee or its agents; strikes or labor disputes; material shortages; fire or
other casualty; acts of God or other causes beyond Lessor's control for which
rent shall not commence until substantial completion of the tenant improvement
work. In the event of a delay caused by Lessee, the substantial completion date
shall be extended by the number of days of said delay. However, rent shall
commence on August 15, 1998 if such delay is caused by Lessee. In the event
Lessor is unable to deliver the Leased Premises to Lessee by October 1, 1998
(and said delay was not caused by Lessee), then Lessee, upon thirty (30) days
prior notice may cancel the Lease on the date specified in such notice, unless
the Lease Premises are substantially completed by said date.
6. ACCEPTANCE AND CARE OF PREMISES
6.1 Taking of possession of the Leased Premises by Lessee shall be
conclusive evidence the Leased Premises were, on that date, in good, clean and
tenantable condition, except for latent defects and punch list items not yet
completed.
6.2 Lessee shall keep the Leased Premises neat and clean and in a
sanitary condition and shall at all times preserve them in as good condition
and repair as they now are, or may hereafter be put into, reasonable use and
wear and damage by fire or other unavoidable casualty excepted. All damage or
injury done to the Leased Premises by Lessee or by any persons who may be in or
upon the Leased Premises with the consent of Lessee, including the cracking or
breaking of glass of any windows and doors, shall be paid for by Lessee and
Lessee shall pay for all damage to the Building caused by Lessee's misuse of
the Leased Premises or the appurtenances thereto. Lessee shall not put
any curtains, draperies or other hangings on or beside the windows in the
Leased Premises without first obtaining Lessor's consent. If Lessee shall fail
to keep and preserve the Leased Premises in said condition and state of repair
Lessor may at its option put or cause the same to be put into the condition and
state of repair agreed upon, and in such case Lessee, on demand, shall pay the
cost thereof.
7. ALTERATIONS
Lessee shall design the Tenant Work so they will comply with then
applicable laws at the commencement of the lease term. Lessee shall not make
any alterations, additions or improvements in or to the Leased Premises, or
make changes to locks on doors, or add, disturb or in any way change any
plumbing or wiring therein, without the prior written consent of Lessor, which
shall not be unreasonably withheld. Lessor may require that any such work be
performed
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by Lessor's employees or contractor(s) employed by Lessor. Lessor, at its
option, may at its own expense make any repairs, alterations or improvements
which Lessor may deem necessary or advisable for the preservation, safety or
improvement of the Leased Premises or the Building, provided only that Lessee
shall at all times have reasonable access and use of the Leased Premises.
Lessee shall, at its own expense, make any alterations, additions or
improvements to the Leased Premises, which are required by law during the term
of this Lease. Lessor's approval concerning the initial improvement or any
subsequent alteration, addition or improvement of the Leased Premises is for
Lessor's benefit only and shall not create any responsibility or liability on
the part of Lessor for design sufficiency or compliance with applicable laws.
8. INSPECTION AND REPAIRS
Lessor shall have the right with reasonable notice, except in emergencies
to inspect the Leased Premises at all reasonable times and the right to enter
the same for the purpose of cleaning, repairing, altering or improving the
same, or the Building, but nothing contained in this Lease shall be construed
so as to impose any obligation on Lessor to make any repairs, alterations or
improvements except as expressly provided in Section 9.
9. SERVICES BY LESSOR
Lessor will, at its expense, provided Lessee is not in default, furnish
Lessee with the following services and utilities:
(a) Elevator service during normal business hours of the Building (8:00
a.m. to 6:00 p.m. -- Monday through Friday and 9:00 a.m. to 1:00 p.m. --
Saturday, except legal holidays generally observed in the State of Washington)
and the service of at least one elevator during all other hours.
(b) Heating and air cooling to maintain a temperature condition which in
Lessor's reasonable judgment provides for comfortable occupancy of the Leased
Premises during normal business hours of the Building, under normal business
operations, provided Lessee complies with Lessor's instructions regarding use
of drapes and thermostats and Lessee does not utilize heat generating machines
or equipment other than normal office equipment in normal quantities, such as
Desktop PC's, printers, and fax machines, which affect the temperature
otherwise maintained by the air cooling system. Upon request Lessor shall make
available at Lessee's expense after hours heat or air cooling. The minimum use
of after hours heat or air cooling and the cost thereof shall be determined by
Lessor and confirmed in writing to Lessee, as the same may change from time to
time. In addition to any and all other rights and remedies which Lessor may
invoke for a violation or breach of this Lease, Lessor may discontinue said
heating and air cooling service without any abatement of rent whatsoever.
(c) Water for drinking, lavatory and toilet purposes.
(d) Electricity for building standard lighting and operation of low power
usage office machines in quantities usually furnished by Lessor to tenants in
the Building for general office use.
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Low power usage machines are typewriters, desk top calculators, desk top
computer terminals and similar equipment with similar power requirements which
operate on 110 volt circuits.
(e) Janitorial service and window washing. This service includes vacuum
cleaning of carpets and cleaning of Building standard vinyl composition tile,
but no other services with respect to carpets or non-standard floor coverings.
Shampoo or similar cleaning of carpets and repair and replacement of carpets
shall be Lessee's responsibility and at Lessee's expense.
(f) Maintain the exterior window blinds or draperies, windows, doors,
floors, walls, ceilings, plumbing and plumbing fixtures, and electrical
distribution system and lighting fixtures in good condition and repair, except
for damage caused by Lessee, its employees, agents, invitees or visitors, and
except that such service will not be provided as to any of the foregoing items
that are not standard for the Building. Lessor shall maintain, repair, replace
and keep in a first-class condition comparable to other first-class or Class A
office buildings in the downtown Seattle, Washington area, the Common Areas
(including, without limitation, the lobbies, elevators, stairs, parking areas,
grounds, loading areas and corridors), the roofs, foundations, load-bearing
elements, conduits and structural walls and other structural elements of the
Building, the underground utility and sewer pipes of the Building, all base
building mechanical, electrical, plumbing, HVAC system, access control system
and the sprinkler system and other fire and life-safety systems, as well as
window blinds and draperies. All repairs and maintenance required of Lessor
pursuant to this Section or elsewhere in the Lease shall be performed in
accordance with standards applicable to comparable first-class office buildings
in the downtown Seattle, Washington area, and performed in a timely and diligent
fashion. Lessor agrees to diligently attend to any routine repairs or
maintenance needs brought to its attention by Lessee as soon as reasonably
practicable. Lessor shall coordinate all maintenance and repair work with
respect to the Leased Premises with Lessee and shall perform the same in a
manner to minimize to the extend possible any disruption of Lessee's business
activities.
(g) Replacement of burned out fluorescent tubes in light fixtures which
are standard for the Building. Burned out bulbs, tubes or other light sources
in fixtures which are not standard for the Building will be replaced by Lessor
at Lessee's expense.
9.2 Lessor shall use reasonable diligence to remedy an interruption in
the furnishing of such services and utilities. If, however, any governmental
authority imposes regulations, controls or other restrictions upon Lessor or
the Building which would require a change in the services provided by Lessor
under this Lease, Lessor may comply with such regulations, controls or other
restrictions, including without limitation, curtailment, rationing or
restrictions on the use of electricity or any other form of energy serving the
Leased Premises. Lessee will cooperate and do such things as are reasonably
necessary to enable Lessor to comply with such regulations, controls or other
restrictions.
9.3 Whenever heat generating machines or equipment other than low power
usage machines, or lighting other than building standard lights are used in the
Leased Premises by Lessee which affect the temperature otherwise maintained by
the air cooling system, Lessor shall have the right to install supplementary
air cooling units in the Leased Premises, and the cost
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thereof, including the cost of installation and the cost of operation and
maintenance thereof, shall be paid by Lessee to Lessor upon billing by Lessor.
Lessor may impose a reasonable charge for utilities and services, including
without limitation, air cooling, electric current and water, required to be
provided the Leased Premises by reason of, (a) any substantial recurrent use of
the Leased Premises at any time other than the hours of 8:00 a.m. to 6:00 p.m.,
Monday through Friday, (b) any use beyond what Lessor agrees to furnish as
described above, (c) electricity used by equipment designated by Lessor as
high power usage equipment or (d) the installation, maintenance, repair,
replacement or operation of supplementary air cooling equipment, additional
electrical systems or other equipment required by reason of special electrical,
heating, cooling or ventilating requirements of equipment used by Lessee at the
Leased Premises. High power usage equipment includes without limitation, data
processing machines, punch card machines, computers and machines which operate
on 220 volt circuits. Lessee shall not install or operate high power usage
equipment on the Leased Premises without Lessor's prior written consent, which
may be refused unless Lessee confirms in writing its obligation to pay the
additional charges necessitated by such equipment. At Lessor's option, separate
meters for such utilities and services may be installed for the Leased Premises
and Lessee upon demand therefor, shall immediately pay Lessor for the
installation, maintenance, repair and replacement of such meters.
9.4 Lessor does not warrant that any of the services and utilities
referred to above will be free from interruption. Interruption of services and
utilities shall not be deemed an eviction or disturbance of Lessee's use and
possession of the Leased Premises or any part thereof or render Lessor liable
to Lessee for damages, or relieve Lessee from performance of Lessee's
obligations under this Lease. In the event there is an interruption in heating,
cooling, electricity, water or elevator services to the Leased Premises which
materially disrupts Lessee's ability to conduct business within the Leased
Premises and such interruption was not caused by Lessee, Lessor shall
diligently pursue the remedy of such interruption and in the event said
interruption is in excess of five (5) days and is not caused by Lessee, then on
the sixth (6th) day following such interruption, all rent shall be abated until
such services are restored. In the event such interruption cannot be remedied
within thirty (30) days of such interruption and such interruption was not
caused by Lessee, then, upon five (5) days written notice to Lessor, Lessee may
cancel the Lease unless within such five (5) day period Lessor remedies the
interruption.
10. FIRE OR OTHER CASUALTY
In the event the Building or the Leased Premises shall be destroyed or
rendered untenantable, either wholly or in part, by fire or other casualty,
Lessor may, at its option, restore the Building or Leased Premises to as near
their previous condition as is reasonably possible, and in the meantime the
rent shall be abated in the same proportion as the untenantable portion of the
Leased Premises bears to the whole thereof; but unless Lessor, within sixty
(60) days after the happening of any such casualty, shall notify Lessee of its
election to so restore, this Lease shall thereupon terminate and end. Such
restoration by Lessor shall not include replacement of furniture, equipment or
other items that do not become part of the Building or any improvements to the
Leased Premises in excess of those provided for in the allowance for building
standard items.
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11. WAIVER OF SUBROGATION
Anything in this Lease to the contrary notwithstanding, Lessor and Lessee
each hereby waives any and all claims against the other, its agents, officers,
directors, shareholders or employees, for loss or damage to the Leased Premises
or the Building, or any personal property of such party therein, that is caused
by or results from fire and other perils insured against under (a) the normal
fire with extended coverage property insurance policies, or (b) the standard
business interruption insurance policies, carried by the parties and in force
at the time of damage or loss. Each party shall cause each such insurance policy
obtained by it to provide that the insurance company waives all right to
recovery by way of subrogation against the other party in connection with any
such damage or loss.
12. USES
The Leased Premises are to be used only for the uses specified in Section
1.6 hereof, and for no other business or purpose without the prior written
consent of Lessor. Lessee shall comply with all applicable laws, ordinances,
rules and regulations in its use and occupancy of the Leased Premises,
including those related to the use and disposal of hazardous substances and
materials, and shall indemnify and hold Lessor harmless from any loss or damage
resulting therefrom. Lessee shall not allow anything to be done in the Leased
Premises which will increase the existing rate of insurance on the Building,
and will immediately reimburse Lessor for any such resulting increase. Lessee
shall not commit or allow to be committed any waste upon the Leased Premises,
or any public or private nuisance or other act or thing which disturbs the
quiet enjoyment of any other tenant in the Building. Lessee shall not, without
the prior written consent of Lessor, use any apparatus, machinery or device in
or about the Leased Premises which will cause any substantial noise or
vibration. If any of Lessee's office machines and equipment should disturb the
quiet enjoyment of any other tenant in the Building, then Lessee shall provide
adequate insulation, or take such other action as may be necessary to eliminate
the disturbance. Lessee shall comply with all laws relating to its use of the
Leased Premises.
13. SIGNS AND ADVERTISING
Except for Lessee's signage in the elevator lobby of the 10th floor, or in
its reception area, Lessee shall not inscribe any inscription or post, place,
or in any manner display any sign, notice, picture, placard or poster, or any
advertising matter whatsoever, anywhere in or about the Leased Premises or the
Building at places visible (either directly or indirectly as an outline or
shadow on a glass pane) from anywhere outside the Leased Premises without first
obtaining Lessor's written consent thereto. Any such consent by Lessor shall be
upon the understanding and condition that Lessee will remove the same at the
expiration or sooner termination of this Lease and Lessee shall pay Lessor the
cost to repair any damage to the Leased Premises or the Building caused
thereby. Lessor shall have the right to prohibit any advertising by Lessee
which, in its opinion, tends to impair the reputation of the Building as a
first-class shopping, business or professional area.
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14. ACCIDENTS AND INDEMNITY
14.1 Lessee shall protect, defend, indemnify and hold Lessor harmless from
all loss, damage, liability or expense, including attorneys' fees, resulting
from any injury to any person or any loss of or damage to any property caused
by or resulting from any act, omission or negligence of Lessee or any officer,
employee, agent, contractor, invitee, or visitor of Lessee in or about the
Leased Premises or the Building, but the foregoing provision shall not be
construed to make Lessee responsible for loss, damage, liability or expense
resulting from injuries to third parties caused by any act, omission or
negligence of Lessor, or of any officer, employee, agent, contractor, invitee
or visitor of Lessor. Lessor shall not be liable for any loss or damage to
person or property sustained by Lessee, or other persons, which may be caused by
the Building or the Leased Premises, or any appurtenances thereto, being out of
repair, or by the bursting or leakage of any water, gas, sewer or steam pipe,
or by theft, or by any act of neglect of any tenant or occupant of the
Building, or of any other person, or by any other cause of whatsoever nature
except for Lessor's gross negligence.
14.2 Subject to the provisions of Section 11 above, Lessor shall protect,
defend, indemnify and hold Lessee harmless from all loss, damage, liability or
expense, including reasonable attorneys' fees, resulting from any injury to any
person or any loss of or damage to any property caused by or resulting from any
act, omission or gross negligence of Lessor or any officer, employee, agent,
contractor, customers or visitors of Lessor in the Building, but the foregoing
provision shall not be construed to make Lessor responsible for loss, damage,
liability or expense resulting from injuries to third parties caused by an act,
omission or negligence of Lessee, or of any officer, employee, agent,
contractor, customers or visitors of Lessee.
14.3 Liability Insurance. Lessee shall, throughout the term of this Lease
and any renewal hereof, at its own expense, keep and maintain in full force and
effect, a policy of commercial general liability insurance including a
contractural liability endorsement covering Lessee's obligations under this
Lease, insuring Lessee's activities upon, in or about the Leased Premises or
the Building against claims of bodily injury or death or property damage or
loss with a limit of not less than One Million Dollars ($1,000,000) combined
single limit.
14.4 Property Insurance. Lessee shall, throughout the term of this Lease
and any renewal hereof, at its own expense, keep and maintain in full force and
effect, what is commonly referred to as "all risk" coverage insurance (but
excluding earthquake and flood) on Lessee's leasehold improvements and personal
property and equipment in the Leased Premises in an amount not less than the
current One Hundred Percent (100%) replacement value thereof.
14.5 Insurance Policy Requirements. All insurance under this Section 14
shall be with companies satisfactory to Lessor and authorized to do business in
Washington, and Lessor shall be named as an additional insured on all such
policies of Lessee. No insurance policy required hereunder shall be cancelled
or reduced in coverage and each insurance policy shall provide that it is not
subject to cancellation or a reduction in coverage except after thirty (30)
days prior written notice to Lessor. Lessee shall deliver to Lessor prior to
commencement of the lease term and from time to time thereafter, copies of
policies of such insurance or certificates evidencing the
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existence and amounts of same and naming Lessor as an additional insured
thereunder. In no event shall the limits of any insurance policy required
hereunder be considered as limiting the liability of Lessee under this Lease.
15. LIENS AND INSOLVENCY
Lessee shall keep the Leased Premises and the Building free from any liens
arising out of any work performed, materials ordered or obligations incurred by
Lessee. If Lessee becomes insolvent, voluntarily or involuntarily bankrupt, or
if a receiver, or assignee or other liquidating officer is appointed for the
business of Lessee, then Lessor, at its option, may immediately or any time
thereafter terminate Lessee's right of possession under this Lease.
16. DEFAULT AND RE-ENTRY
Lessee covenants as a material part of the consideration for this Lease
to keep and perform each and all of said terms, covenants and conditions by
Lessee to be kept and performed and that this Lease is made upon the condition
of such performance. Except for a default under the preceding Section 15 for
which immediate right of termination is given to Lessor, if Lessee fails to pay
any installment of rent within three (3) days after written notice, or to
perform any other covenant under this Lease within thirty (30) days after
written notice from Lessor stating the nature of the default, Lessor may
terminate this Lease and re-enter and take possession of the Leased Premises
using such force as may be necessary; provided that if the nature of such
default other than for non-payment of rent is such that the same cannot
reasonably be cured within such thirty-day period, Lessee shall not be deemed to
be in default if Lessee shall within such period commence such cure and
thereafter diligently prosecute the same to completion. If Lessor elects to
terminate this Lease, Lessor may declare all rent owing for the remainder of the
Term immediately due and payable, less the amount Lessee proves could reasonably
be collected during such period. Notwithstanding such retaking of possession by
Lessor and/or termination of this Lease, Lessee's liability for the rent
provided herein shall not be extinguished for the balance of the term of this
Lease, and Lessee shall make good to Lessor any deficiency arising from a
reletting of the Leased Premises at a lesser rental, plus the reasonable costs
and expenses of renovating or altering the Leased Premises and the reasonable
costs and expenses of reletting the Leased Premises, including but not limited
to, lease commissions, tenant improvements, etc. Lessee shall pay any such
deficiency each month as the amount thereof is ascertained by Lessor. If Lessor
retakes possession, Lessor shall have the right to let any other available space
in the Building before reletting or attempting to relet the Leased Premises, and
such action shall not relieve Lessee of any of its obligations hereunder. All
remedies provided herein are cumulative and are in addition to those provided by
law.
17. REMOVAL OF PROPERTY AND REPLACEMENT OF NON-STANDARD ITEMS
Upon the expiration or termination of the lease term, Lessee shall at its
expense remove Lessee's goods and effects and those of all persons claiming
under Lessee. Lessee shall also be required to remove all data and
telecommunications cabling installed for use by Lessee in or
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around the Leased Premises (including Building telecommunication closets and
risers). Any property left in the Leased Premises after the expiration or
termination of the lease term shall be deemed to have been abandoned and the
property of Lessor to dispose of as Lessor deems expedient at Lessee's expense.
18. NON-WAIVER
Failure of Lessor to insist, in any one or more instances, upon strict
performance of any term, covenant or condition of this Lease, or to exercise
any option herein contained, shall not be construed as a waiver, or a
relinquishment for the future, of such term, covenant, condition or option, but
the same shall continue and remain in full force and effect. The receipt by
Lessor of rents with knowledge of a breach of any of the terms, covenants or
conditions of this Lease to be kept or performed by Lessee shall not be deemed
a waiver of such breach, and Lessor shall not be deemed to have waived any
provision of this Lease unless expressed in writing and signed by Lessor.
19. COSTS AND ATTORNEYS' FEES
To the extent permitted by law, in any action or proceeding brought by
either party against the other under this Lease, the substantially prevailing
party shall be entitled to recover from the other party its actual professional
fees (such as appraisers', accountants' and attorneys' fees), investigation
costs, and other legal expenses and court costs incurred by the prevailing
party in such action or proceeding, in such amounts as the presiding court
deems reasonable.
20. PRIORITY
Lessee agrees that this Lease shall be subordinate to any first mortgages
or deeds of trust that may hereafter be placed upon the Leased Premises or the
Building containing the same, and to any and all advances to be made
thereunder, and to the interest thereon, and all renewals, replacement and
extensions thereof provided that such mortgagee agrees not to disturb Lessee's
possession of the Leased Premises (except in the event of a default by Lessee
beyond applicable cure periods). Within fifteen (15) days after written request
from Lessor, Lessee shall execute any documents that may be reasonably
necessary or desirable to effectuate the subordination of this Lease to any
such mortgages or deeds of trust and shall execute estoppel certificates as
requested by Lessor from time to time in the standard form of any such
mortgagee or beneficiary.
21. CONDEMNATION
If all of the Leased Premises or such portions of the Building as may be
required for the reasonable use of the Leased Premises, are taken by eminent
domain, this Lease shall automatically terminate as of the date Lessee is
required to vacate the Leased Premises and all rent shall be paid to that date.
In case of a taking of a part of the Leased Premises, or a portion of the
Building not required for the reasonable use of the Leased Premises, then this
Lease shall continue in full force and effect and the rent shall be equitably
reduced based on the proportion by which the floor area of the Leased Premises
is reduced, such rent reduction to be effective as of
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the date possession of such portion is delivered to the condemning authority.
Lessor reserves all rights to damages to the Leased Premises for any taking by
eminent domain, and Lessee hereby assigns to Lessor any right Lessee may have
to such damages or award, and Lessee shall make no claim against Lessor for
damages for termination of the leasehold interest or interference with Lessee's
business. Lessee shall have the right, however, to claim and recover from the
condemning authority compensation for any loss to which Lessee may be put for
Lessee's moving expenses and for the interruption of or damage to Lessee's
business, provided, that such damages may be claimed only if they are awarded
separately in the eminent domain proceeding and not as part of the damages
recoverable by Lessor.
22. ASSIGNMENT AND SUBLETTING
22.1 Lessee shall not, without the prior written consent of Lessor which
shall not be unreasonably withheld, assign this Lease or any interest therein,
or sublet the Leased Premises or any part thereof, or permit the use of the
Leased Premises by any party other than Lessee or mortgage or otherwise
transfer this Lease (collectively "transfer"). Such consent shall be entirely
discretionary with Lessor, except as otherwise provided in Section 22.5.
Consent to one such transfer shall not destroy or waive this provision, and all
subsequent transfers shall likewise be made only upon obtaining prior written
consent of Lessor. Sublessees or assignees shall become directly liable to
Lessor for all obligations of Lessee hereunder, without relieving Lessee of any
liability.
22.2 If Lessee wishes to assign this Lease or sublet the Leased Premises
or any part thereof, Lessee shall first given written notice ("Lessee's Notice")
to Lessor of its intention to do so, which notice shall contain the name of the
proposed assignee or subtenant (collectively "transferee"), the nature of the
proposed transferee's business to be carried on in the Leased Premises and the
terms and provisions of the proposed assignment or sublease. Lessee shall also
provide Lessor with a copy of the proposed assignment or sublease when it is
available and such financial and other information with respect to the proposed
transferee and transfer that Lessor may reasonably require.
At any time within thirty (30) days after Lessor's receipt of Lessee's
Notice, Lessor may by written notice ("Lessor's Notice") to Lessee elect to,
(a) recapture the affected space by terminating this Lease as to the portion of
the Leased Premises covered by the proposed sublease or assignment effective
upon a date specified in Lessor's Notice, which date shall not be earlier than
thirty (30) days nor later than sixty (60) days after Lessor's Notice, with a
proportionate reduction of all rights and obligations of Lessee hereunder that
are based on the area of the Leased Premises, (b) consent to the proposed
sublease or assignment, or (c) disapprove the proposed sublease or assignment.
If Lessor's Notice states Lessor elects to exercise the recapture option
described above, Lessee shall have the option for a period of ten (10) days
after receipt of Lessor's Notice, by written notice to Lessor within such
period, to withdraw Lessee's Notice of proposed transfer and not proceed with
the proposed sublease or assignment.
22.3 Whether or not Lessor consents to a proposed transfer, Lessee shall
reimburse Lessor on demand for any and all reasonable costs that may be
incurred by Lessor in connection
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with any proposed transfer including, without limitation, the reasonable cost
of investigating the acceptability of the proposed transferee and attorneys'
fees incurred in connection with each proposed transfer not to exceed Five
Hundred and 00/100 dollars ($500.00) per occurrence.
22.4 If Lessor consents to any proposed assignment or sublease, (a)
Lessee may enter into same, but only upon the specific terms and conditions set
forth in Lessee's Notice, (b) any sublease or assignment shall be subject to,
and in full compliance with, all of the terms and provisions of this Lease, (c)
the consent by Lessor to any assignment of sublease shall not relieve Lessee of
any obligation under this Lease, (d) each transferee shall assume all
obligations of Lessee under this Lease and shall be and remain jointly and
severally liable with Lessee for the payment of rent, and the performance of
all of the terms, covenants, conditions and agreements herein contained on
Lessee's part to be performed, (e) no assignment shall be binding on Lessor
unless Lessee and the transferee shall deliver to Lessor a counterpart of the
assignment that contains a covenant of assumption by the transferee
satisfactory to Lessor and is otherwise satisfactory in form and substance to
Lessor, and (f) any rent or other consideration accruing to Lessee as the result
of such assignment of sublease which is in excess of the rent then being paid
by Lessee for the portion of the Leased Premises affected by the assignment or
sublease, shall be paid by Lessee to Lessor monthly as additional rent.
22.5 Notwithstanding the foregoing, in the event of a proposed
assignment or sublease, if Lessor does not exercise its option to recapture
under Section 22.3, then Lessor will not unreasonably withhold its consent
thereto if (a) Lessee is not then in default hereunder, (b) the proposed
transferee will continuously occupy and use the Leased Premises for the term of
the transfer, (c) the use by the proposed transferee will be a business office
consistent in quality to and otherwise compatible with the other tenants in the
Building, (d) the proposed transferee is reputable and of sound financial
condition, and (e) the use by the proposed transferee will not violate any
rights of exclusivity granted to other tenants or any other restrictions on use
to which Lessor is subject.
22.6 Notwithstanding anything to the contrary in this Lease, so long as
such transfer is not effectuated as part of a transaction or series of
transfers orchestrated in order to effect a transfer of this Lease (or Lessee's
interest herein) in isolation to Lessee's other leasehold interests and assets,
Lessor's written consent shall not be required for any sublease, assignment or
other transfer of this Lease to any other entity which (i) controls, is
controlled by or is under common control with Lessee, or (ii) is controlled by
Lessee's parent company, or (iii) which purchases all or substantially all of
the assets of Lessee, or (iv) which purchases all or substantially all of the
stock of Lessee, provided, however, that in such event Lessee shall continue to
remain fully liable under the Lease on a joint and several basis with the
assignee or acquiror of such assets or stock. Lessee shall be required to give
Lessor at least thirty (30) days written notice in advance of any such sublease
or assignment, except with respect to transfers by operation of law occasioned
through a sale of publicly traded shares in Lessee. Sales of publicly traded
stock in Lessee shall not constitute a transfer for purposes of this Lease.
22.7 Any option(s) granted to Lessee in this Lease or any option(s)
granted to Lessee in any amendments to this Lease, to the extent that said
option(s) have not been exercised, shall
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terminate and be voided in the event this Lease or any portion thereof is
assigned, or any part of the Leased Premises are sublet, or all or any portion
of Lessee's interest in the Leased Premises are otherwise transferred.
22.8 Lessor understands that Lessee desires to sublease a portion of the
Leased Premises and therefore not withstanding anything contrary contained
herein, Lessee shall have the rights to sublease the space set forth in Exhibit
D attached hereto during the Lease Term without Lessor's right to recapture as
set forth in Section 22.2(a).
23. RULES, REGULATIONS AND MISCELLANEOUS
23.1 Lessee shall use the Leased Premises and the public areas in the
Building in accordance with such reasonable rules and regulations as may from
time to time be adopted by Lessor for the general safety, care and cleanliness
of the Leased Premises or the Building, and the preservation of good order
therein, and shall cause Lessee's employees, agents, invitees and visitors to
abide by such rules and regulations; provided that such rules and regulations
do not unreasonably interfere with the Lessee's use of the Leased Premises and
Building.
23.2 Lessee shall not place any boxes, cartons, or other rubbish in the
corridors or other public areas of the Building.
23.3 Lessor does not guarantee the continued present status of light or
air over any premises adjoining or in the vicinity of the Building. Any
diminution or shutting off of light, air or view by any structure which may be
erected on lands near or adjacent to the Building shall in no way affect this
Lease or impose any liability on Lessor.
23.4 Lessee shall conserve heat, air-conditioning, water and electricity
and shall use due care in the use of the Leased Premises and of the public
areas in the Building, and without qualifying the foregoing, shall not neglect
or misuse water fixtures, electric lights and heating and air-conditioning
apparatus.
23.5 Lessor shall not other than during normal business hours admit to the
Leased Premises the Lessee or any of the Lessee's agents or employees or other
persons claiming the right of admittance.
23.6 Lessee shall peaceably and quietly enjoy the Leased Premises so long
as it pays the rent payable by it hereunder and is not in default in performing
all the provisions of this Lease.
23.7 The titles to sections of this Lease are for convenience only and
shall have no effect upon the construction or interpretation of any part
thereof. This Lease shall be governed by the laws of the State of Washington.
23.8 All notices under this Lease shall be in writing and delivered in
person or sent by registered or certified mail to Lessor at the same place rent
payments are made, and to Lessee at the Leased Premises, or such addresses as
may hereafter be designated by either party in writing.
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Notices mailed as aforesaid shall be deemed given on the date of actual receipt
or rejection of the notice.
23.9 The rent herein is exclusive of any sales, business and occupation,
gross receipts or other tax based on rents or tax upon this Lease or tax upon
or measured by the number of employees of Lessee or the area of the Leased
Premises or any similar tax or charge. If any such tax or charge be hereafter
enacted, Lessee shall reimburse to Lessor the amount thereof together with each
Base Monthly Rent payment. If it shall not be lawful for Lessee so to reimburse
Lessor, the Base Monthly Rent payable to Lessor under this Lease shall be
revised to net Lessor the same net rental after imposition of any such tax or
charge upon Lessor as would have been payable to Lessor prior to the imposition
of such tax or charge. Lessee shall not be liable to reimburse Lessor for any
federal income tax.
23.10 Lessee shall not place any plants, sculptures or other items so as
to be located wholly or partially in the public corridor portions of the
Building without Lessor's prior written approval.
23.11 All improvements, alterations or additions which may be made by
either of the parties hereto upon the Leased Premises, except movable office
furnishings, shall become part of the Building when made, and shall remain upon
and be surrendered with the Leased Premises as a part thereof. The maintenance
and care of such improvements shall be the responsibility of Lessee, except as
otherwise provided in Section 9. For example, Lessor shall vacuum, but Lessee
shall shampoo, repair and replace carpets. Wall paneling, partitions, closets,
built-in cabinets, sinks, doors, however attached, floor coverings and other
built-in units of all kinds are a partial listing of improvements that become
property of Lessor as aforesaid. Wall hung office furniture, refrigerator/sink
units and other electrical appliances may be removed by Lessee provided the
reasonably estimated amount to cap plumbing and repair screw holes or other
damage is paid by Lessee to Lessor prior to such removal and such removal does
not cause any material damage to the property.
23.12 The freight elevator shall not be used by Lessee or others to move
furniture, supplies or other items to or from the Leased Premises unless Lessee
prior to such use has scheduled and coordinated such use with Lessor's Service
Department. Lessee shall not permit passenger elevators to be used to move
furniture, supplies or other items to or from the Lease Premises. Lessee shall
cause its suppliers and other providers to comply with the foregoing provisions.
23.13 The name of the Building may at any time be changed by Lessor.
23.14 This Lease is the final and complete expression of the parties'
agreement and no representations, promises or agreements, oral or otherwise,
between the parties not embodied herein shall be of any force and effect.
Neither this Lease nor any provision hereof may be changed, waived, discharged
or terminated orally, but only by instrument in writing executed by Lessor and
Lessee.
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23.15 UNICO Properties, Inc. (UNICO) is Lessor's manager and rental agent
in all matters concerning this Lease and the Leased Premises, and the Lessee,
until notified in writing to the contrary by either the Lessor or UNICO or the
Assignee of Lessor's interest under this Lease, shall recognize such agency and
pay all rental, furnish all statements, and give any notice which the Lessee
may be under the duty of giving hereunder, or may elect to give hereunder, to
UNICO at its office in the City of Seattle, King County, Washington, instead of
to the Lessor. As long as such agency shall exist, the rights and options
extended to Lessor shall be deemed extended to UNICO, and each and every other
term and provision of this Lease which is in any way beneficial to the Lessor,
including especially every stipulation against liability, or limiting
liability, shall inure to the benefit of UNICO and its agents and shall be
applicable to UNICO and its agents in the same manner and as fully and with the
same effect as to Lessor. Whenever Lessor's consent is required, Lessee shall
request such consent from UNICO. The consent of UNICO shall be deemed the
consent of UNICO and Lessor.
23.16 Lessee agrees to look only to the equity of Lessor in the Building
and the Land and not to Lessor personally with respect to any obligations or
payments due or which may become due from lessor hereunder, and no other
property or assets of Lessor or any partner, joint venturer, member, officer,
director, shareholder, agent, or employee of Lessor, disclosed or undisclosed,
shall be subject for the satisfaction of Lessee's claims under or with respect
to this Lease, and no partner, member, officer, director, agent or employee of
Lessor shall be personally liable in any manner or to any extent in connection
with this Lease. If at any time the holder of Lessor's interests hereunder is a
partnership, limited liability company or joint venture, a deficit in the
capital account of any partner, member or joint venturer shall not be
considered an asset of such partnership, limited liability company or joint
venture. In the event of a sale or conveyance by Lessor of the Building, the
same shall operate to release Lessor from any and all obligations and
liabilities on the part of Lessor accruing from and after the effective date of
the sale or conveyance as long as the Transferee receives the entire security
deposit and expressly assumes all future obligations of Lessor hereunder.
23.17 Broker Commission Lessee shall defend, indemnify and hold Lessor
harmless from all claims and liabilities or expenses arising from agreements or
other arrangements made by or on behalf of Lessee with any brokers, finders or
other persons, except for a commission of Three and 50/100 dollars ($3.50) per
rentable square feet, which will be paid to Xxxxx & Xxxxx by Lessor, one-half
upon signing of the Lease and one-half upon the occupancy of the Leased
Premises by Lessee.
23.19 Security Deposit Lessee has deposited the sum specified in Section
1.10 with Lessor. Lessor shall pay the remaining balance thereof to Lessee,
inclusive of one-half of the interest accrued, within thirty (30) days after
the expiration or prior termination of the lease term, or any extension
thereof, if Lessee has fully performed all of its obligations under this Lease.
Lessor may withdraw from the deposit the amount of any unpaid rent or
additional rent or other charges not paid to Lessee when due, and Lessee shall
immediately redeposit an amount equal to that so withdrawn.
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23.20 Holdover If Lessee remains in possession of all or part of the
Leased Premises after the expiration of the term of this Lease, with or without
Lessor's written consent, for each month or partial month of such possession,
Lessee shall pay Lessor an amount equal to one hundred fifty percent of the
Base Monthly Rent payable hereunder immediately prior to the expiration of the
term. Such holdover by Lessee shall not be deemed an extension of the term or
the grant by Lessor to Lessee of a month to month tenancy. Lessee shall also
indemnify and hold Lessor harmless from all loss, cost, liability and expense
incurred by Lessor if Lessee remains in such possession of all or part of the
Leased Premises without Lessor's prior written consent.
23.21 Recording Neither Lessor nor Lessee shall record this Lease or any
memorandum thereof.
23.22 Directory Board Lessor shall, throughout the term of this Lease,
maintain a directory board in the main lobby of the Building which shall list
Lessee, and up to ten (10) of Lessee's employees. The cost of said designations
shall be at Lessor's expense for the initial ten (10) designations and at
Lessee's expense thereafter.
23.23 Authority Each individual executing this Lease on behalf of Lessee
represents and warrants that he or she is duly authorized to execute and
deliver this Lease on behalf of Lessee and that this Lease is binding on Lessee
in accordance with its terms.
24. SUCCESSORS
All the covenants, agreements, terms and conditions contained in this
Lease shall apply to and be binding upon Lessor and Lessee and their respective
heirs, executors, administrators, successors and assigns.
25. SHARED TENANT SERVICES
Lessee acknowledges that any provision of telecommunications and office
automation services and equipment ("Shared Tenant Services") by a third party
provider, including but not limited to Shared Technologies Inc., its agents,
affiliates and successors (collectively the "Provider") is entirely separate
and distinct from this Lease agreement and that Lessor has no duty of
performance concerning the provision of Shared Tenant Services. Lessee hereby
agrees to look solely to the provider for any failure in the provision of
Shared Tenant Services.
26. AMERICANS WITH DISABILITIES ACT (ADA) COMPLIANCE
Lessor and Lessee acknowledge that, in accordance with the provisions of
the Americans with Disabilities Act (the "ADA"), responsibility for compliance
with the terms and conditions of Title III of the ADA may be allocated as
between Lessor and Lessee. Notwithstanding anything to the contrary contained in
the Lease, Lessor and Lessee agree that the responsibility for compliance with
the ADA (including, without limitation, the removal of architectural and
communications barriers and the provision of auxiliary aids and services to the
extent required) shall be allocated as follows: (i) Lessee shall be responsible
for compliance with the provisions of
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Title III of the ADA for any construction, renovations, alterations and repairs
made within the Leased Premises if such construction, renovations, alterations
and repairs are made by Lessee, at its expense without the assistance of the
Lessor; (ii) Lessee shall be responsible for compliance with the provisions of
Title III of the ADA for all construction, renovations, alterations and repairs
Lessor makes within the Leased Premises, whether at Lessor's or Lessee's
expense; and (iii) Lessor shall be responsible for compliance with the
provisions of Title III of the ADA for all exterior and interior areas of the
Building including the elevator lobby and restrooms located on the 10th floor
not included within the Leased Premises. Lessor agrees to indemnify and hold
Lessee harmless from and against any claims, damages, costs and liabilities
arising out of Lessor's failure, or alleged failure, as the case may be, to
comply with Title III of the ADA, which indemnification obligation shall
survive the expiration or termination of this Lease. Lessee agrees to indemnify
and hold Lessor harmless from and against any claims, damages, costs and
liabilities arising out of Lessee's failure, or alleged failure, as the case
may be, to comply with Title III of the ADA, which indemnification obligation
shall survive the expiration or termination of this Lease. Lessor and Lessee
each agree that the allocation of responsibility for ADA compliance shall not
require Lessor or Lessee to supervise, monitor or otherwise review the
compliance activities of the other with respect to its assumed responsibilities
for ADA compliance as set forth in this Section. The allocation of
responsibility for ADA compliance between Lessor and Lessee, and the
obligations of Lessor and Lessee established by such allocations, shall
supersede any other provisions of the Lease that may contradict or otherwise
differ from the requirements of this Section.
27. OPTION TO EXTEND
27.1 Lessee may extend the term of this lease for one (1) additional
term(s) of five (5) years provided Lessee fully satisfies the conditions
hereafter stated. If so extended, this lease shall continue as though the
extended term were part of the original term except the base monthly rent
pursuant to Section 1.4 shall be the Market Rate for like space in like
buildings.
Lessee's right to extend the lease as above stated is subject to the following
conditions:
(a) Lessee shall give lessor six (6) months prior written notice pursuant
to this section of the Lease. Lessor shall, within thirty (30) days
thereafter, provide notification of the proposed rental rate for the
extended term.
(b) Lessee shall not be in default under the Lease when said notice is
given.
(c) This Lease shall be in full force and effect when said notice is
given.
(d) Lessee shall have confirmed in writing Lessee's obligation to pay the
base monthly rent required by Lessor for the extended term within
thirty (30) days of notification by Lessor of said rental rate.
(e) Upon receipt of Lessee's acknowledgement, Lessor shall prepare an
amendment modifying the lease.
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MARKET RATE
27.2 As used in this lease, the term "Market Rate" at any point in time
shall mean the annual rate of base monthly rent per rentable square foot being
quoted by owners to renewing tenants (and being accepted by such renewing
tenants) at such points in time
(i) for space in the Building and for space in other office buildings in
the downtown Seattle Central Business District that are comparable
to the Building in age, class and quality, which space is comparable
in size, location, configuration, view (to the extent relevant) and
degree of existing leasehold improvements paid for by Lessor in the
space in the Building to be leased by Lessee with respect to which
such rate is to apply; and
(ii) for a lease term of substantially the same duration and commencement
date as the Extended Term.
For purposes of this lease, Market Rate (determined without reduction for
concessions) shall not be reduced by reason of any concessions which are related
to costs that would be incurred if Lessee were then first moving into the Leased
Premises instead of renewing its existing lease. For example, Market Rate shall
not be reduced for concessions related to leasehold improvements to the extent
such concessions would be used to improve the leased space (virgin or otherwise)
for tenant improvements then in place in the leased premises, for broker fees,
or for other costs or concessions typically incurred by landlords for new
tenants but not for renewal tenants. Market Rate (determined without reduction
for concessions) may be reduced by reason of concessions then being granted to
renewing tenants such as rent abatements or refurbishment allowances, with the
amount of such concessions spread over the full term of the extended term.
Should Lessee not agree with Lessor's quoted rate it shall provide said
rejection in writing to Lessor and Lessor and Lessee shall attempt to agree on a
single arbitrator within fifteen (15) days thereafter as described below and
subject to the rights granted to Lessor under Section 27 outlined herein.
27.3 Should Lessor and Lessee be unable to agree on the base monthly rent
for the extended term within thirty (30) days of notification from Lessor of
the rental rate, and if Lessor does not elect within fifteen (15) days
thereafter to have the Market Rate determined by arbitration, then Lessee may
rescind its exercise of this option to extend by written notice to Lessor
within thirty (30) days thereafter. Should Lessor elect within fifteen (15)
days thereafter to have Market Rate determined by arbitration, Lessee may
within three (3) days of such election rescind its option to extend. Such
arbitration shall be before one (1) disinterested and experienced arbitrator if
one can be agreed upon, otherwise before three (3) disinterested and
experienced arbitrators, one named by Lessor, one by Lessee, and one by the
two thus chosen; provided, that if said two arbitrators cannot agree upon a
third arbitrator within fifteen (15) days after they have been named, then a
third arbitrator shall be appointed by the presiding judge of the King County
Washington Superior Court upon motion of either Lessor or Lessee. A
"disinterested and experienced arbitrator" shall be a person (a) who shall not
have a direct or indirect financial interest in the decisions to be made by
the arbitrator(s); (b) who shall not be an officer, director, employee, or
agent of Lessor or Lessee, and (c) who shall have at least five (5) years
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professional or business experience in the Seattle market with respect to the
management and leasing of commercial real estate as a property manager, broker
or other capacity. The arbitrator(s) shall determine the Market Rate for the
extended term. Except as may be otherwise provided in this Lease, the
arbitrator(s) shall conduct the arbitration proceedings in accordance with the
then currently published rules of the American Arbitration Association
applicable to commercial arbitration's. Except as may be otherwise provided in
this lease, the arbitrator(s) designated and acting under this lease shall make
his or their award in strict conformity with such rules and shall have no power
to depart from or change any of the provisions thereof. All arbitration's
proceedings hereunder shall be conducted in Seattle, Washington. The
appointment or arbitrators shall be signified in writing by each party to the
other. If Lessor or Lessee shall fail to so appoint an arbitrator for a period
of fifteen (15) days after written notice from the other party to make such
appointment, then the arbitrator appointed by the party not in default
hereunder shall appoint a second arbitrator, and the two so appointed shall
appoint a third arbitrator. The arbitrator(s), after being duly sworn to
perform his or their duties with impartiality and fidelity shall proceed to
determine the Market Rate for the extended term. The arbitration hearing shall
be conducted and the decision of the arbitrator(s) shall be rendered within
sixty (60) days after their appointment, and such decision shall be in writing
and in duplicate, one counterpart thereof to be delivered to each of the
parties hereto. The decision of the arbitrator(s) shall be binding, final and
conclusive on the parties. Fees of the arbitrator(s) and the expenses incident
to the proceeding shall be borne equally between Lessor and Lessee if a single
arbitrator is used. If three arbitrators are used, each party shall pay the fees
and costs of the arbitrator selected by it and the parties shall share equally
in the fees and costs of the third arbitrator. Fees of the respective counsel
engaged by the parties, and fees of expert witnesses or other witnesses called
by parties shall be paid by the respective party engaging such counsel or
calling or engaging such witness.
28. FIRST RIGHT TO LEASE
Lessee shall have the first right to lease as additional space any
available vacant space on the 9th and 11th floors, subject to rights
previously granted to existing tenants (the FRL Space). If Lessor desires to
lease the space in question to a third party or take it off the market for any
reason whatsoever, Lessor shall notify Lessee of its intent along with the
economic terms by which Lessee may acquire the FRL space. Lessee shall have ten
(10) days after receipt of each such notice to advise Lessor in writing whether
or not it will add additional space to the leased premises. Failure to do so
shall be deemed an election not to add any FRL Space. If Lessee does not elect
to add any FRL space, then Lessor may lease the FRL Space in question to a
third party or take it off the market for any reason whatsoever. Lessee's right
under this Section 28 shall apply at any time that Lessor desires to lease the
space in question to a third party or to take the space off the market during
the Lease term. When FRL Space has been added to the leased premises, Lessee
shall pay base monthly rent and additional rent under Section 3 and 4 for the
added space under market terms and conditions. Within three (3) days after
receipt of Lessee's election or notice to lease FRL Space, Lessor will give
Lessee written notice of the base monthly rent required for the additional
space in a form which may be signed by Lessee confirming Lessee's obligation to
pay said base monthly rent for the FRL Space added to the leased premises. Upon
the execution of a lease for the additional space, Lessor and Lessee shall
diligently commence and pursue the completion of tenant improvement drawings for
the additional space so that the tenant improvement work can be priced and
commenced within forty-five (45) days after Lessee exercises the option to
acquire additional space.
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Lessee's right to lease the FRL Space is subject to the following additional
conditions:
(a) Lessee shall not be in default under the Lease when said notice is
given.
(b) This Lease shall be in full force and effect when said notice is
given.
(c) Prior to occupancy of the FRL Space, Lessee shall have confirmed in
writing Lessee's obligation to pay the base monthly rent for the FRL
Space.
(d) This lease has not been assigned or all or part of the leased
premises sublet, except as permitted under Section 22.6.
(e) Subject to rights granted to third parties, prior to the execution of
the Lease.
29. PARKING
Lessor shall make available ten (10) monthly parking permits three (3) of
which must be designated carpool parking, which will be located in the Union
Square Garage during the lease term. The charges for such parking shall be at
the prevailing monthly rates during the term of this lease and paid by Lessee
to the operator of the garage wherein such parking is provided. The rates are
subject to change during the lease term.
30. TENANT IMPROVEMENT ALLOWANCE
Lessor shall provide Lessee with a tenant improvement allowance of Ten
and 00/100 dollars ($10.00) per usable square foot for tenant improvements,
architectural and engineering fees. Lessor shall provide all of the tenant
improvement work and shall bid out such work to at least three (3)
subcontractors in each trade. Lessor's overhead and profit shall be limited to
five percent (5%) of the total project cost.
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IN WITNESS WHEREOF, this Lease has been executed by Lessor and Lessee as
of the day and year first above set forth.
LESSEE: LESSOR:
InterNAP NETWORK SERVICES, INC., UNION SQUARE LIMITED
a Washington corporation PARTNERSHIP, a Washington Limited
Partnership
By UNICO PROPERTIES, INC.
(Manager and authorized rental agent
for Union Square Limited Partnership)
By /s/ XXXX X. XxXXXXX
----------------------------------
Its VP Finance & Administration
---------------------------------
By /s/ XXXX XXXXXXXXXX
----------------------------------
Xxxx Xxxxxxxxxx, Vice President
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LESSOR'S ACKNOWLEDGEMENT
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
On this 18th day of June, 1998, before me personally appeared Xxxx
Xxxxxxxxxx, to me known to be the Vice President of UNICO PROPERTIES, 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 and UNION SQUARE LIMITED PARTNERSHIP, for the uses and purposes
therein mentioned, and on oath stated that he (she) was authorized to execute
the said instrument and that the seal affixed (if any) is the corporate seal of
said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year first above written.
[NOTARY SEAL] /s/ XXXXXXX X. XXXXXXX
---------------------------------------
Xxxxxxx X. Xxxxxxx
Notary Public in and for the State of
Washington, residing at Seattle.
My commission expires: 4-02-2002.
26
LESSEE'S CORPORATE ACKNOWLEDGEMENT
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
On this 17th day of June, 1998, before me personally appeared Xxxx XxXxxxx
to me known to be the CFO of InterNAP NETWORK SERVICES 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 they (he or she)
were authorized to execute the said instrument and that the seal affixed (if
any) is the corporate seal of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year first above written.
[NOTARY SEAL] /s/ XXXXXX XXXXXXXX
---------------------------------------
(Print name) Xxxxxx Xxxxxxxx
Notary Public in and for the State of
Washington, residing at Seattle.
My commission expires: 3-12-00.
27
[TWO UNION SQUARE FLOOR PLAN]
InterNAP NETWORK SERVICES, INC.
FLOOR 37
EXHIBIT A
28
EXHIBIT B
IMPROVEMENTS OF LEASED PREMISES
LESSOR: UNION SQUARE LIMITED PARTNERSHIP
LESSEE: InterNAP NETWORK SERVICES, INC.
PREMISES: ROOMS 1001-1037 ONE UNION SQUARE
Lessor at its expense has provided the shell and core of the Building and
certain improvements on the floors on which the Leased Premises are located,
all as more fully set forth in Section 1 of this Exhibit. Lessor is to also
provide an allowance as provided in Section 3 of this Exhibit and Section 30 of
the Lease for improvements to the Leased Premises, which are in addition to
those provided by Lessor pursuant to Section 1 of this Exhibit, all as more
fully set forth in this Exhibit. The allowance amount for Section 3 and Section
30 and the dates for submission of plans and documents to Lessor pursuant to
Section 4.3 are as follows:
The Section 3 allowance amount is Ten and 00/100 dollars and 00/100
dollars ($10.00) per usable square foot of Leased Premises (19,225 S.F.) for a
total allowance of One Hundred Ninety-Two Thousand Two Hundred Fifty and 00/100
dollars ($192,250.00).
The Section 4.3 delivery dates are:
A.) Schematic Plans -
------------------------------
B.) Final Preliminary Plans -
------------------------------
C.) Final Contract Documents - June 19, 1998
1. Basic Building Improvements (Shell and Core).
Lessor has at its expense furnished and installed the following
improvements in accordance with plans and specifications for the Building on
the floors upon which the Leased Premises are located:
(a) Finished elevator lobby to match building standard specifications
including carpeting. The typical elevator lobby has painted walls,
carpeted floors, painted elevator doors and jambs, and wall sconce
lighting fixtures.
(b) All items which are standard for the Building and located within the
core area of the Building finished to the specifications for the
Building, including but not limited to core walls, electrical
distribution equipment and conduits, heating and air conditioning
equipment and ducting, a women's lavatory, a men's lavatory, drinking
fountain, and fire and life safety equipment.
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(c) Exterior walls and exterior windows for the Building. The
interior of such exterior walls, the exterior of the core walls and
all structural elements within the Leased Premises (except cross-
bracing on Floors 35, 36 and 37) shall be ready to receive Lessee
specified finishes.
(d) The rigid ducting and standard size variable air volume air
terminal units for interior and exterior zone heating and air cooling
in accordance with the Building standard layout for the floor upon
which the Leased Premises are located. The standard number of such
air terminal units is twelve (12) units for the entire Fourth Floor
and twenty (20) units for each other entire floor. Such improvements
by the Lessor include the individually controlled central fan unit
located in each floor's mechanical room allowing for separate
floor-by-floor air conditioning control and operation but do not
include the round low pressure run out ducting, flexible ducting and
diffusers.
(e) Electric service to the electrical room located within the core
of the building and sufficient capacity to meet Lessee's
requirements, not to exceed 4.5 xxxxx per usable square foot
(including lighting) and any limits imposed by applicable codes, laws
and regulations. Two electrical power loops are provided on each
floor of the Building. One loop is for building standard 277/480 volt
lighting and the other loop is available for tenant 110 volt power or
special power requirements.
(f) Telephone service to the telephone closet located within the
core area of the Building.
(g) Concrete floor ready to receive carpet. The floors typically
will have a partition load capacity of 20 pounds per square foot. The
live load capacity is 80 pounds per square foot for a zone extending
approximately 24 feet out from the core and 50 pounds per square foot
on the remainder of the floor, all as more fully specified by
Lessor's Architect.
(h) Basic sprinkler distribution grid in accordance with Building
standard layout for the floor.
(i) A vertical condenser water loop to provide water for
supplementary air cooling equipment (if any) installed in the Leased
Premises. The hook-up to said loop and reasonable charge for said
water shall be at Lessee's expense.
If Lessee, with Lessor's consent, changes surface finishes from those
specified for the Building, requires changes to the heating and cooling and
electrical systems which are standard for the Building, or makes any other
departure from the specifications or standards for the Building with respect to
any of the foregoing items, the additional cost of such change or other
departure shall be at the Lessee's expense as a charge to Tenant Work pursuant
to Section 2 of this Exhibit. Throughout the Exhibit, items which are not
Building Standard items are sometimes referred to as special items or special
improvements.
2. Additional Improvements (Tenant Work).
Improvements or modifications to the Leased Premises which are in addition
to those existing improvements or as provided for in Section 1 of this Exhibit
are herein sometimes described as Tenant Work. Tenant Work shall be at Lessee's
expense but shall be paid for by Lessor to the extent of the
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allowance provided for in Section 3 of this Exhibit. The same procedure shall
pertain to any matters referred to in this Exhibit as being at Lessee's expense
or a charge to Tenant Work. If the costs for Tenant Work and expenses or
charges to Tenant Work exceed said allowance, the excess shall be paid by
Lessee. Tenant Work and costs charged to Tenant Work if applicable shall
include without limitation:
(a) All partitioning within the Leased Premises, and the walls separating
the Leased Premises from the public corridor.
(b) Paint or other wall coverings approved by Lessor. Painted walls shall
receive at least one prime coat and one semi-gloss finish coat. Lessee
shall use a brand of paint specified by Lessor as standard for the
Building or an equivalent brand approved in advance by Lessor.
(c) Doors and door hardware.
(d) Finish ceiling, including suspension system and hangers.
(e) Cabinetry, millwork or other built-ins.
(f) Carpeting or other floor covering.
(g) Blinds for exterior windows as designated by Lessor.
(h) Lighting fixtures, including Building standard fixtures and all other
fixtures, and all switching, all in accordance with applicable Seattle
codes.
(i) Electrical receptacles, wiring from junction boxes located above
suspended ceiling to light fixtures and any other electrical items which
are in addition to those furnished by Lessor pursuant to Section 1 of this
Exhibit.
(j) Telephone and data outlets and any other communication equipment not
furnished by Lessor pursuant to Section 1.
(k) Air terminal units in excess of the standard number for the Leased
Premises. The standard number for an entire floor is 12 on the Fourth
Floor and 20 on all other floors. All related ducting, round low pressure
run out ducting, flexible ducting, diffusers and any other items for
heating or air cooling which are not furnished by the Lessor pursuant to
Section 1 of this Exhibit.
(l) Modifications to sprinkler distribution system identified in Section
1 and installation of sprinkler heads, emergency speakers, fire
extinguishers and cabinets within the Leased Premises, including any
specialized fire suppression system such as halon.
(m) Interfloor stairs within the Leased Premises.
(n) Vertical lifts for books, files, mail distribution, etc.
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(o) Plumbing and fixtures including private toilets, showers,
lavatories, sinks and lunchroom or kitchen equipment.
(p) Emergency power equipment for Lessee's equipment.
(q) All demolition and removal of debris for any item of work installed
pursuant to Section 1 or Section 2 of this Exhibit which Lessee with
Lessor's consent, subsequently requests Lessor to remove.
(r) Any structural modification to the Building.
(s) The fees of architects, engineers, consultants and contractors,
including Lessor's Architect and Lessor's contractor, for services with
respect to the Leased Premises.
(t) All applicable Washington State sales tax.
(u) Fees and expenses for all permits, including building, special
energy and structural modification permits and other governmental fees.
(v) Any other costs referred to in this Exhibit as being at Lessee's
expense or a charge to Tenant Work.
Whether, and the extent to which, any of Lessee's requirements exceed the
improvements to be provided by Lessor pursuant to Section 1 shall be determined
by Lessor's Architect, which determination shall be conclusive.
3. Tenant Improvement Allowance.
Lessor shall provide an allowance for Tenant Work in the Leased Premises
equal to the amount specified at page 1 of this Exhibit. The allowance shall be
used to pay costs for Tenant Work, by crediting or paying the amount of the
allowance against amounts due for the Tenant Work, all in accordance with
Section 5.2 of this Exhibit. Any unused allowance shall be retained by Lessor.
4. Design of Tenant Improvements.
4.1 Lessor's Architect. Lessor has engaged the services of an
architect, mechanical engineer and electrical engineer (herein collectively
"Lessor's Architect") to provide certain professional services required for the
improvement of the Leased Premises and other portions of the Building. Lessor's
Architect shall provide all mechanical and electrical engineering services
required to prepare the engineering plans described in Section 4.3.C. of this
Exhibit and the services described in Section 4.6 of this Exhibit. All
structural engineering services required with respect to the Leased Premises
shall be provided by Lessor's structural engineer as provided in subsection
(10) of Section 4.3.C.
4.2 Lessee's Architect. At Lessee's expense as a charge to Tenant Work,
Lessee may retain the services of a qualified architect/office planner
(Lessee's Architect), licensed to practice architecture in the State of
Washington, and approved by Lessor, to provide all architectural services
related to the tenant improvements, except for those services which by the
express provisions of this Exhibit are to be provided by Lessor's Architect or
Lessor's structural engineer. Lessee's Architect shall timely prepare all plans
and specifications described in Section 4.3 of this Exhibit (except the
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engineering drawings described in Sections 4.3.C. (3), (4) and (10)). Lessee's
Architect shall timely provide Lessor's Architect or Lessor's structural
engineer, as the case may be, with all information, plans or specifications
which are necessary to prepare the engineering drawings described in Sections
4.3.C. (3), (4) and (10) of this Exhibit.
4.3 Plans for Tenant Work. The Schematic Plans, Final Preliminary Plans
and Final Contract Documents shall be subject to Lessor's and Lessee's
approval. Such plans shall be compatible with the basic plans and
specifications for the Building and when submitted to Lessor for its approval
shall clearly show any proposed modifications to the plans and specifications
for the Building. Lessee shall (a) provide timely and adequate information,
direction and approval of plans and specifications to Lessor's Architect and
(b) work with Lessor's Architect and submit the following plans or documents to
Lessor for Lessor's approval on or before the respective dates specified at
page 1 of this Exhibit:
A. Schematic Plans.
The Schematic Plan(s) shall generally describe all areas within the
Leased Premises. Rooms or areas shall be identified by name or function with
special furniture or equipment shown or described. Special features including
without limitations relights, lunch rooms, coffee bars, computer rooms, shall
also be noted on the Schematic Plans. These plans are to be the basis for the
Final Preliminary Plans.
B. Final Preliminary Plans.
The Final Preliminary Plans submitted for interim approval shall show all
partition layout indicating partition type and identifying each room and its
function. The floor plan must also clearly identify and locate equipment and
fixtures requiring plumbing or other special mechanical systems, area(s)
subject to above normal floor loads, special openings in the floor, special
electrical requirements and any other major or special features, including an
outline specification of special finishes. These plans are to be the basis for
the Final Contract Documents.
On or before the later of the 10th day of June, 1998, the Lessee's
Architect shall prepare the Final Preliminary Plans and submit the same to
Lessor for approval. Within three (3) days following Lessor's receipt of the
Final Preliminary Plans, Lessor or Lessor's Architect shall provide Lessee and
Lessee's Architect with (i) a list of its objections, modifications, deletions
or qualifications to the same (but Lessor agrees that it shall not unreasonably
withhold, condition or delay its consent to any improvements which do not
adversely affect any base building systems) and (ii) a schedule of items
constituting "long-lead" items (as defined below). For purposes hereof, the
term "long-lead" items shall mean any items or material element thereof which
Lessor's Architect reasonably believes, due to long-lead time for fabrication
or delivery, will not be available at the Premises in time to be completed or
installed prior to the originally scheduled Commencement Date.
C. Final Contract Documents.
Lessee and Lessee's Architect shall have nine (9) days from receipt of
Lessor's list of objections, modifications, deletions, or qualifications to (a)
substitute materials to eliminate any long-lead items and (b) cause the
architect and the engineer to prepare and deliver to Lessor and Lessor's
Architect the Final Contract Documents, which shall be based on the final
Preliminary Plans but shall conform to Lessor's objections, modifications,
deletions, or qualifications. No plans and specifications shall
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constitute the Final Contract Documents hereunder unless and until the same
have been approved in writing by both Lessor and Lessee.
The Final Contract Documents shall be prepared in accordance with the
standards adopted by Lessor including scale, common symbols, legends and
abbreviations together with information required to obtain permits. The
drawings shall be prepared using the "pin bar" system for compatibility with
other building drawings. The Final Contract Documents shall be approved and
signed by the Lessee and Lessor's Architect prior to submittal to Lessor and
approved and signed by Lessor prior to submittal to Lessor's contractor for
pricing, and shall include:
(1) Architectural Floor Plan(s): A plan, fully dimensioned, showing
partition layout and type, identifying each room with a number and each
door with a number, and the location, nature and extent of floor
finishes, casework, relights, etc. Plumbing locations and requirements
shall be shown on this plan.
(2) Reflected Ceiling Plan(s): A plan showing all building standard
and/or special ceiling conditions and materials. This plan shall also
include the location and type of all building standard and special light
fixtures including switching together with a legend indicating fixture
type, quantity of fixtures, connected wattage of each fixture as
necessary for compliance with the lighting power budget of Seattle's
codes and any other applicable laws and regulations.
(3) Electrical and Telephone Outlet Plan(s): A plan locating all power
and telephone requirements dimensioned to give exact location of outlet
and height above concrete slabs if locations are critical. This plan
shall identify all dedicated circuits and identify all power outlets
greater than 120 volts. For equipment used in outlets which require
dedicated circuits and/or which require greater than 120 volts, identify
the type of equipment, the manufacturer's name and manufacturer's model
number and provide power requirements and other technical specifications.
The plan shall also show modifications to basic system, circuit
identification, conduit size, the number and size of wires, all in
compliance with applicable Seattle codes or other applicable laws and
regulations.
(4) Mechanical Plan(s), HVAC, and Plumbing: A plan which clearly shows
the basic HVAC system, modifications to the basic system if required, any
special cooling or stand-alone systems, all supply air diffusers,
thermostats and return air grills. All plumbing information shall be
complete for final installation, including the fixture schedule and
specifications.
(5) Furniture Layout: Basic layout showing furniture locations.
(6) Millwork Details: Complete elevations and details of all special
millwork including but not limited to cabinets, paneling, trim, bookcases
and special doors and jambs.
(7) Hardware and Keying Schedules: Complete specifications for all
special hardware shall be provided. (Note: Key ways in special locks must
be compatible with building master key system.) The keying schedule must
indicate which doors are locked and which keys open each lock, together
with a symbol indicating which side of the door is to be locked to
prohibit entry.
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(8) Room Finish and Color Schedule: Provide on the drawings complete
information showing location and specification for all finishes including
wall, floor covering, base, ceiling and special conditions.
(9) Construction Note and Specifications: Provide all required special
notes and complete specifications, including instruction for bidders,
special conditions incorporating the AIA standard form of general
conditions or such modifications thereof as are designated or approved by
Lessor and technical specifications for all special improvements.
(10) Structural Modifications: If Lessee's tenant improvements include
interfloor stairways, increased floor loading or any other items which
require structural modifications, Lessor's structural engineer for the
Building shall be engaged to perform all required structural engineering
services. The cost of such services shall be a charge to Tenant Work. A
drawing shall be prepared showing the extent of structural modification
necessary and a separate building permit shall be obtained for this phase
of work.
4.4 Contract Administration. Lessor's Architect shall provide
construction administration during the execution of Tenant Work on the Leased
Premises and will observe progress of such work, attend necessary contractor
coordination meetings, advise Lessee and Lessor on status and progress payments,
prepare a punchlist for any construction deficiencies at completion and certify
the Leased Premises ready for occupancy. Lessee's architect may also provide
construction administration services to Lessee and shall coordinate its
activities with Lessor's architect.
4.5 Delays. Lessee shall be responsible for delays and additional costs
in completion of Tenant Work and any damages or other costs incurred by Lessor
which are caused by (a) Lessee's failure to provide adequate information and
direction to Lessee's Architect or failure to timely perform its obligations in
order to meet the plan delivery dates set forth in Section 4.3 of this Exhibit,
(b) Lessee's failure to timely authorize Lessor to proceed with the Tenant
Work, (c) changes made to any of Lessee's Plans after the specified Delivery
Date for Final Contract Documents, (d) delays in delivery of special materials
or (e) delays requested by Lessee. The costs of any such delay or damage shall
be a charge to Tenant Work. Lessee shall further be responsible for such delays
as provided in Section 5.6 of this Exhibit.
4.6 Additional Services by Lessor's Architect. Certain services with
respect to Tenant Work shall be provided by Lessor's Architect and charged to
Tenant Work in addition to those provided for in Section 4.1. Lessor's
Architect shall:
(a) Provide Lessee's Architect with information about the Building and
background drawings for execution of the Tenant Work as reasonably
requested by Lessee's Architect.
(b) Provide mechanical engineering and required engineering drawings for
(1) sizing of feeder ducts and placement of diffusers and thermostats,
(2) computer rooms or areas which are supplied HVAC service only off the
basic HVAC system for the Building, and (3) specifications for sinks and
related plumbing such as service to coffee machines, sinks, dishwashers
and hot water tanks.
(c) Provide electrical engineering and required engineering drawings for
building standard items and typical desk top office equipment and
copiers.
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(d) Review all plans and specifications required under Section 3.3 and
assist Lessee's Architect regarding compliance with the requirements of
Building systems and codes related to Tenant Work. Notwithstanding such
review and assistance, Lessee's Architect is responsible for compliance
with such requirements and codes.
(e) Provide coordination with the Lessor, and/or Lessee's Architect and
Lessor's contractor, as applicable, throughout the design, pricing and
construction of the Tenant Work, transmit shop drawings and submittals
pertaining to special items to Lessee's Architect as requested, and
provide contract administration as provided in Section 3.4, such
administration to be coordinated with Lessee's Architect.
(f) Obtain the blanket building permit for tenant improvement
construction in the office portions of the Building and transmit the Final
Contract Documents to the Department of Construction and Land Use
("DCLU") for review and approval. Lessee's Architect shall be
responsible for all changes required as a result of such review by DCLU.
All other permits, including without limitation electrical, mechanical,
plumbing, energy code and structural permits shall be obtained by
subcontractors or Lessee's Architect.
The foregoing architectural services by Lessor's Architect are included as a
charge to Tenant Work.
Additional mechanical and electrical engineering services, if required, shall be
provided by Lessor's Architect and the reasonable charges for same shall be in
addition to the foregoing charge and at Lessee's expense as a charge to Tenant
Work. Examples of such additional services include mechanical engineering
services for food service kitchens, private toilet facilities, exercise rooms,
computer rooms or areas that are cooled utilizing the vertical chilled water
loop for the Building, stand alone cooling systems, special exhaust systems and
special fire suppression systems, and electrical engineering services for
integrated lighting controls, computer wiring or networking, computer room
design, lighting design beyond building standard, control circuitry, and sound
and/or paging systems.
5. Construction of Tenant Improvements.
5.1 Authorization to Proceed. Lessor shall engage a general contractor
licensed in the State of Washington to perform all Tenant Work pursuant to a
standard AIA "cost plus" contract, pursuant to which such contractor shall
receive a fee equal to five percent (5%) of the hard costs of construction
billed by all subcontractors for such general contractor's profit, overhead and
general conditions. Lessor shall cause the general contractor to construct the
Tenant Work (i) strictly in accordance with the Final Contract Documents, (ii)
using new materials, (iii) in good and workmanlike manner and (iv) in compliance
with all applicable laws, ordinances, rules and regulations. Lessor's general
contractor shall, in all events, warrant all Tenant Work against defects for a
period of one year. If any subcontractor warranty extends beyond one (1) year,
Lessee shall benefit by such warranty. Notwithstanding the foregoing, at
Lessor's election some or all of the Tenant Work may be (a) priced and
subcontracts with respect thereto awarded on the basis of unit price
arrangements or similar arrangements negotiated by Lessor's contractor with
respect to such work in the Building, or (b) performed by Lessor or an affiliate
or agent of Lessor provided the price is not above market for similar work and
which is subject to Lessee's reasonable approval. Any other subcontract work
will be competitively bid. Subcontract work which is to be competitively bid
shall be submitted to at least three (3) subcontractors selected and approved by
Lessor, Lessee and Lessor's contractor and may be
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bid independently or together with similar work for other tenants in the
Building. Such subcontractors shall only employ and use union labor in and about
the Building and Land. After they have been completed, the Final Contract
Documents shall be promptly submitted to such subcontractors for bids. Bids will
be reviewed by Lessor, Lessee and Lessor's contractor and subcontracts awarded
as they mutually agree. The bidding process shall be "open book", in which,
prior to commencing work and awarding any subcontracts, Lessor's contractor
shall submit a list of detailed prices (itemized to set forth all pertinent
information with respect to each bid, such as profit, overhead, general
conditions, contingencies, etc.) for Lessee's approval sufficient to allow for
Lessee's review and comment and subsequent modification. If the price of Tenant
Work exceeds the allowance in Section 3 of this Exhibit, Lessee may in such
authorization delete any or all items of extra cost; provided however, if
Lessor, acting reasonably, deems these changes to be extensive, Lessor may
refuse to accept the authorization to proceed until all changes have been
incorporated in revised Final Contract Documents signed by Lessee, approved and
signed by Lessor, priced by Lessor, and written acceptance of the revised
price has been received by Lessor from Lessee. In the absence of written
authorization to proceed, Lessor shall not be obligated to commence work on the
Leased Premises.
5.2 Payments. Lessor's contractor shall complete the improvements to the
Leased Premises (Tenant Work) in accordance with the approved Final Contract
Documents. Lessor shall pay for the cost of Tenant Work up to the amount of the
allowance described in Section 3. Lessor shall submit monthly progress xxxxxxxx
to Lessee for costs which exceed or are not included in said allowance, which
shall be payable within ten (10) days after receipt. Final billing shall be
rendered and payable within ten (10) days after acceptance of the Leased
Premises by Lessee in accordance with the terms of the Lease.
5.3 Final Plans and Modifications. If Lessee shall request any change
from the approved Final Contract Documents, Lessee shall request such change in
writing to Lessor and such request shall be accompanied by all plans and
specifications necessary to show and explain changes from the approved Final
Contract Documents. After receiving this information, Lessor shall give Lessee
a written price for the cost to incorporate the changes in Lessee's Final
Contract Documents. If Lessee approves such price in writing, Lessor shall have
such Final Contract Documents changes made and the cost thereof shall be a
charge to Tenant Work. Within a reasonable time after completion of such
changes in the Final Contract Documents, Lessor shall obtain and notify Lessee
in writing of the construction cost, if any, which shall be chargeable or
credited to Lessee as a result of such change. The cost for such change,
whether chargeable or credited to Lessee shall include a Lessor coordination
fee equal to five percent (5%) of the amount of such change. Lessee shall
within five (5) days notify Lessor in writing to proceed with such change.
In the absence of such notice, Lessor shall proceed in accordance with the
previously approved Final Contract Documents before such change was requested.
Tenant shall also be responsible for any demolition work required as a result
of the change.
5.4 Lessee's Entry to Leased Premises. Lessee's entry to the Leased
Premises for any purpose prior to commencement of the lease term shall be
scheduled in advance with Lessor and shall be subject to all the terms and
conditions of the Lease, except the payment of rent. Lessee's entry shall mean
entry by Lessee its officers, contractors, office planner, licensees, agents,
servants, employees, guests, invitees or visitors.
5.5 Lessee's Telephone. Lessee is responsible for Lessee's telephone
service. Lessee shall select Lessee's telephone system. Information concerning
telephone equipment size, manufacturer, technical specifications, special
requirements and other information requested by Lessor's Architect
9
37
shall be provided by Lessee to Lessor's Architect during the planning phase.
Lessee shall coordinate installation of the telephone system with Lessor's
tenant construction coordinator during the construction phase. Notwithstanding
anything to the contrary contained herein, Lessee shall be totally responsible
for the installation of telephone wiring and equipment, all subject to Lessor's
approval.
5.6 Commencement of Lease Term. The lease term shall not commence until
Lessor has substantially completed all work to be performed by Lessor under the
provisions of this Exhibit, except for the completion or correction of items on
the Architect's punch list. If Lessor shall be delayed, however, in
substantially completing said work as a result of:
(i) Lessee's failure to provide sufficient information to Lessor's
Architect to allow timely delivery of the plans and specifications
identified in Section 4.2 of this Exhibit; or
(ii) Lessee's failure to approve plans and specifications and price by
the dates or within the time periods required by the lease (including this
Exhibit); or
(iii) Lessee's change(s) in Final Preliminary Plans or Final Contract
Documents after they have been approved by Lessor; or
(iv) Lessee's requests for materials, finishes or installations other
than the building standard items and improvements specified by Lessor for
the building; or
(v) Delays in delivery of special materials; or
(vi) Lessee's failure to timely perform any of its other obligations
under the lease (including this Exhibit), then the reasonable costs of such
delays to Lessor shall be a charge to Tenant Work and Lessor shall be
deemed to have delivered possession of the Leased Premises to Lessee and
the lease term shall commence on (a) the date Lessor would have
substantially completed the work if it was not so delayed, or (b) the Lease
Commencement Date otherwise provided for in this Lease, whichever is later.
6. General Provisions.
The following provisions shall be applicable to all Tenant Work.
(a) Lessee shall be responsible for the design, function and maintenance
of all special improvements made to the Leased Premises.
(b) In order to expedite construction of Tenant Work, Lessor has
prepurchased all building standard core area items and may prepurchase the
following items as standard for the Building:
(1) Ceiling suspension system and ceiling tile.
(2) 2'0" x 2-0" recessed florescent light fixtures with frame.
(3) Doors, jambs, or hardware.
(4) Air terminal units and VAV boxes including thermostats.
10
38
(5) Diffusers and grills.
If the Lessor approves the substitution of any special items for any of
the prepurchased Building Standard items, then
(i) If after such substitution, the prepurchase quantity of Building
Standard items is not sufficient to complete the remainder of the
Building, then only an amount equal to the cost of the substituted
item will be charged to the allowance provided pursuant to Section 3
of this Exhibit; or
(ii) If after such substitution, the prepurchase quantity of Building
Standard items exceeds the quantity required to complete the Building,
then to the extent of such excess quantity, an amount equal to the
cost of both the substituted item and the Building Standard item shall
be charged to the allowance provided pursuant to Section 3 of this
Exhibit.
(c) Lessee shall be responsible for any increase in energy cost, as
additional rent, for all special lighting and any lighting not governed by
Seattle's Energy Code and such lighting shall not be installed without the
prior approval of the Lessor. Lamp or bulb replacement for special lights
shall be charged to Lessee as a service charge.
(d) Lessee shall not install sunscreens or other materials between the
blinds on exterior windows or visible from the exterior window of the
Leased Premises.
(e) In addition to other requirements in the Lease, signs or signage
proposed by Lessee shall comply in all respects with Lessor's sign policies
for the Building.
(f) If any Tenant Work or any other installation (including furniture,
fixtures and equipment) within the Leased Premises (hereinafter
collectively referred to as such work) is to be performed at any time by
someone other than the Lessor's contractor or subcontractor, then the
following terms and conditions shall apply:
(1) All such work shall be subject to the prior approval of the
Lessor. Lessee shall be responsible to coordinate and schedule such
work with the Lessor's Tenant Construction Coordinator.
(2) All costs and expenses of such work shall be paid by Lessee
unless otherwise mutually agreed.
(3) All such work shall be performed by union labor licensed to
perform such work within the City of Seattle.
(4) All such work shall conform to written standards or rules and
regulations of the Lessor.
11
39
(5) Lessee shall at no time permit anything to be done whereby the Building
or the land upon which it is located may be subjected to any mechanic's or
other liens or encumbrances arising out of the Tenant Work.
(6) If the performance of such work requires additional services or
facilities (including, but not limited to, elevator services, hoisting,
utilities, cleanup or other cleaning services, trash removal from the Leased
Premises and site of the Building, field supervision or ordering materials) be
provided, Lessee shall pay Lessor (or Lessor's contractor, if directed to do so
by Lessor) a reasonable charge therefore which shall not exceed the direct
additional costs to provide such services plus a markup of ten percent (10%)
thereon.
(7) Lessor shall have no responsibility for such work. Lessee shall remedy at
Lessee's expense and be responsible for any and all defects in such work.
Lessee shall reimburse Lessor for any extra expense incurred by Lessor by
reason of faulty work done by Lessee or Lessee's contractor(s), by reason of
delays caused by such work, or by reason of inadequate clean up.
(8) Lessee shall at its sole expense comply with all applicable laws and all
regulations and requirements of municipal or other governmental bodies
exercising authority over such work and this compliance shall include the
filing of plans and other documents as required and the procuring of all
required licenses or permits.
(9) If any shutdown of plumbing, electrical, fire and life safety equipment
or air conditioning equipment becomes necessary, Lessee shall notify Lessor and
Lessor will determine when such shutdown may be made. Any such shutdown shall
be done only if an agent or employee of Lessor is present. The expense of such
employee or agent shall be charged to Tenant Work if it was incurred primarily
because of the Tenant Work being performed by Lessee's contractor. In the case
of a shutdown of fire and life safety equipment, it shall be Lessee's
responsibility to obtain all necessary fire department and other governmental
approvals.
(10) Any complaints by other tenants or Lessor regarding noise, fumes or odors
are to be remedied immediately or alteration operations are to cease until said
noise, fumes or odors are abated.
(11) Lessee or Lessee's contractor shall not install plumbing, mechanical,
electrical wiring or fixtures, acoustical or integrated ceilings, unless prior
written approval is obtained from Lessor. In addition to the foregoing, all
data processing and other special electrical equipment shall be installed only
under the coordination supervision of Lessor and Lessor's electrical contractor
(i.e., in the presence of and in a manner approved by Lessor or Lessor's
electrical contractor). Lessor and Lessor's electrical contractor shall not
incur any obligations or liability to Lessee or Lessee's contractors or others
as a result of such coordination supervision. Such coordination supervision by
Lessor or Lessor's electrical contractor shall be at Lessee's expense.
(12) Lessee agrees to be entirely responsible for the balancing of any
heating, ventilating or air conditioning system installed by Lessee. Such
balancing shall be
12
40
performed only by a contractor or contractors approved in writing in
advance by Lessor.
(13) Lessee shall be responsible for any delay in completion of Tenant Work
as a result of such work.
(g) If Lessee requests to install any fixtures, furniture or equipment in the
Leased Premises or perform any alterations, additions or improvements to the
Leased Premises which are in addition to or subsequent to the Tenant Work, and
Lessor consents to such requests, the terms and conditions of this Exhibit
(excluding Section 3) shall pertain to all such work.
(h) If the Lease provides for adding space to the Leased Premises at Lessee's
election or otherwise after commencement of the lease term, all improvements to
such additional space shall be performed generally in accordance with this
Exhibit, except (a) the Tenant Improvement Allowance, if any, shall be the
allowance specified for such additional space in the Lease; (b) the Final
Contract Documents described in Section 4.2.C for the improvements to such
additional space shall be delivered to Lessor no later than 160 days prior to
the scheduled occupancy date for such space or such greater time that Lessor
reasonably determines is necessary to enable such additional space to be ready
for occupancy by the scheduled occupancy date; (c) at Lessor's election Lessor
may provide all or part of the services to be provided by Lessor's Architect;
and (d) at Lessor's election, Lessor, or an affiliate or agent of Lessor, may
directly perform the work to be performed by Lessor's contractor and
subcontractors, and in such event the charges for such work shall include usual
and customary contractor xxxx-ups and be subject to Lessee's reasonable
approval. The parties shall proceed diligently to enable and cause such
improvements to be completed by the scheduled occupancy date. If the date of
actual completion is delayed as a result of (a) Lessee's failure to timely
provide and approve Final Contract Documents, (b) changes ordered by Lessee
after approval of Final Contract Documents, (c) delays in delivery of special
materials selected by Lessee, or (d) Lessee's failure to proceed diligently and
timely perform its obligations with respect to such additional work, then lease
term with respect to such space shall commence the date such work would have
been substantially completed if not so delayed or the scheduled occupancy date,
whichever is later.
13
41
EXHIBIT C
JANITORIAL SERVICE PERFORMED BY UNICO
1. Empty all waste receptacles nightly.
2. Vacuum all traffic areas nightly including elevator lobbies.
3. Vacuum entire office weekly.
4. Dust office furniture, files, fixtures, window xxxxx and all other
horizontal surfaces nightly.
5. Spot clean glass furniture tops nightly.
6. Spot clean finger marks and smudges from vertical surfaces nightly.
7. Spot clean small spillages on carpet on request.
8. Dust all telephones as needed.
9. Remove all lint and physical dirt from fabric chairs on request.
10. All glass partitions and relite doors are spot washed nightly.
11. Lobby furniture including magazines and ashtrays are to be organized
nightly.
12. Burned out lights are to be reported to the UNICO Service Center nightly.
13. Dust mop hardwood floors nightly.
14. Dust mop vinyl comp tile floors nightly.
15. Damp mop vinyl comp tile floors weekly.
16. Wax vinyl comp tile floors monthly.
17. Clean restrooms nightly.
Items on desks or credenzas are not to be moved while cleaning. Computers,
typewriters, copy machines or other electrical equipment are not to be
unplugged.
Only items in waste containers are to be discarded unless marked by the tenant
to be thrown away.
Tenant interior doors found locked upon the janitors arrival are to be locked
after the area has been cleaned if red-dot system is used.
EXHIBIT C
42
MONTH TO MONTH LEASE
THIS LEASE, made this 8th day of September, 1998, between
INTERNAP NETWORK SERVICES, INC. (LESSOR)
AND
CONTINENTAL, INC. (LESSEE)
Lessee, in consideration of this lease, covenants and agrees with Lessor as
follows:
Lessee hereby rents from Lessor, Rooms 1001 (the Premises) in the Two Union
Square Building (the Building), Seattle, King County, Washington, as a
month-to-month tenant commencing the 8th day of September, 1998.
Lessee shall pay Lessor monthly rent without demand and in advance, on the
first day of each calendar month as follows: $1,397.50.
The area of the Premises is deemed to be 1,200 usable square feet,
approximately 1,290 rentable square feet as shown on the attached Exhibit "A".
The term shall be from the Commencement Date until 11:59 p.m. on December 31,
1998. Thereafter the Lease is month to month. The rental period hereunder is a
calendar month. If this rental agreement commences on other than the first day
of a calendar month, the rental for that calendar month shall be prorated. All
rent which is past due shall bear interest at the rate of one percent per month
from the date rent is due until paid. If the maximum annual rate of interest
permitted by applicable law shall be less than the rate of interest provided for
herein, then all past due payments of rent shall bear interest at the maximum
rate permitted by applicable law from due date until paid. Lessee acknowledges
that late payment by Lessee to Lessor of rent will cause Lessor to incur costs
not contemplated by this Lease, the exact amount of such costs being extremely
difficult and economically impractical to ascertain. Therefore, if any payment
of rent due from Lessee is not received by Lessor within ten (10) days after the
due date, Lessee shall pay to Lessor (in addition to the interest above
provided) a late charge of Fifty Dollars ($50.00) or two percent (2%) of the
overdue rent, whichever shall be greater. The parties agree that this late
charge represents a fair and reasonable estimate of the costs that Lessor will
incur by reason of late payment by Lessee and is in addition to any interest
charges on past due rent.
The Premises are to be used for storage of Lessee's office furniture and
equipment.
The Premises have been inspected and are accepted by Lessee in their present
condition and Lessee shall at all times keep the Premises neat, and in a
sanitary condition and except for reasonable wear and tear and damage by fire
or other unavoidable casualty shall at all times preserve the Premises in as
good repair as they now are.
Lessee shall not make any alterations, additions or improvements in or to the
Premises or add, disturb or in any way change any plumbing or wiring therein,
without the prior written consent of Lessor.
Lessee shall provide and install, at Lessee's sole cost and expense, a demising
wall then access door to the Premises as shall be mutually agreed between the
parties. Lessee shall also remove the demising wall and door at the termination
of the Lease at Lessee's sole cost and expense.
43
Lessee shall defend and hold Lessor harmless from all loss, damage, liability or
expense resulting from any injury to any person or any loss of or damage to any
property caused by or resulting from any act or omission of Lessee or any agent,
employee, invitee, or visitor of Lessee in or about the Premises of the
Building. Lessor shall not be liable for any injury, loss or damage to person or
property sustained by lessee, or other persons, which may be caused by the
building or the Premises, or any appurtenances thereto, being out of repair, or
by the bursting or leakage of any water, gas, sewer or steam pipe, or by theft,
or by any act of neglect of any tenant or occupant of the Building, or of any
other person, or by any other cause of whatsoever nature unless due to Lessor's
gross negligence.
Lessee agrees to exercise reasonable care in and around the Premises so as not
to damage common areas, walls, floors, etc.
Lessor shall furnish heat, light to the extent that such services are provided
by the Building but shall not be liable in damages or otherwise should these
services be interrupted by fire, accident, strike, riot, the making of
necessary repairs or improvements, or any other cause whatsoever.
After December 31, 1998 this tenancy may be terminated at any time by twenty
(20) days prior written notice by Lessor or thirty (30) days prior written
notice by Lessee preceding the end of the monthly rental period as provided by
law, or as otherwise provided by law.
In the event of litigation between the parties hereto declaratory or otherwise,
for the enforcement of any of the covenants, terms and conditions of this
agreement, the losing party shall pay the costs thereof and reasonable
attorneys' fees incurred by the prevailing party, which shall be determined and
taxed by the Court as part of the costs of such action.
Anything in this Lease to the contrary notwithstanding, Lessor and Lessee each
hereby waives any and all claims against the other, its agents, officers,
directors, shareholders or employees, for loss or damage to the leased Premises
or the Building, or any personal property of such party therein, that is caused
by or results from fire and other perils insured against under (a) the normal
fire with extended coverage insurance policies, or (b) the standard business
interruption insurance policies, carried by the parties and in force at the
time of damage or loss. Each party shall cause each such insurance policy
obtained by it to provide that the insurance company waives all right to
recovery by way of subrogation against the other party in connection with any
such damage of loss.
IN WITNESS WHEREOF, this lease has been executed by Lessor and Lessee as of
the day and year first above set forth.
LESSEE: LESSOR:
CONTINENTAL, INC. INTERNAP NETWORK SERVICES, INC.
By: /s/ XXXXXX X. XXXX By: /s/ XXXX X. XxXXXXX
--------------------------- -------------------------------------
Xxxxxx X. Xxxx
Its: Executive Vice President Its: VP Finance & Administration
Date: 9-8-98 Date: 0-0-00
00
Xxxxx 0000
[GRAPH]
EXHIBIT "A"
45
SECOND AMENDMENT TO LEASE
Lessor: Union Square Limited Partnership
Lessee: InterNAP Network Services, Inc.
Premises: Commonly referred to as Suite 1000 in the Two Union Square Building
as more particularly described in the Lease.
Date of this
Amendment: April 6, 1999
Lessor and Lessee are parties to the Lease dated June 11, 1998 as modified
November 2, 1998 and desire to further amend the Lease as follows:
1. Section 1.1 Leased Premises. That part of Section 1.1 reading Rooms
1001-37 is modified to read the Rooms; 1001-37, Rooms 901-37, Rooms 1501-37
(Additional Premises) effective July 1, 1999 for Rooms 901-37, and August 1,
1999 for Rooms 1501-37 as outlined in red on the attached Exhibit A.
2. Section 1.2 Floor Areas. That part of Section 1.2 reading 19,225 usable
square feet; 20,675 rentable square feet, changed to read 38,450 usable
square feet; 41,350 rentable square feet effective July 1, 1999, and 56,722
usable square feet; 61,893 rentable square feet effective August 1, 1999.
3. Section 1.2 Floor Areas. That part of Section 1.2 reading 1.96132 percent
of the rentable area of the Building changed to read 5.49463 percent of the
Building.
4. Section 1.4 Rent. Rent is hereby amended to read as follows:
Commencing July 1, 1999 and ending July 31, 1999 the base monthly rent shall
be $70,208.00
Commencing August 1, 1999 and ending January 31, 2000 the base monthly rent
shall be $121,566.00
Commencing February 1, 2000 and ending June 30, 2000 the base monthly rent
shall be $147,399.00
Commencing July 1, 2000 and ending August 31, 2000 the base monthly rent
shall be $149,122.00
Commencing September 1, 2000 and ending June 30, 2001 the base monthly rent
shall be $151,276.00
Commencing July 1, 2001 and ending July 31, 2001 the base monthly rent shall
be $152,999.00
46
Commencing August 1, 2001 and ending June 30, 2002 the base monthly rent
shall be $156,423.00
Commencing July 1, 2000 and ending June 30, 2003 the base monthly rent
shall be $159,868.00
Commencing July 1, 2003 and ending July 31, 2003 the base monthly rent
shall be $161,591.00
Commencing August 1, 2003 and ending September 30, 2003 the base monthly
rent shall be $165,015.00
5. Section 1.5 Base Indices. The Additional Premises shall have a base year
of 1998 with regards to Annual Operating Expense and Tax increases with an
Operating Cost Adjustment Base amount of $6.87. Lessees' first adjustment
year shall be January 1,2000, however, Lessee's first adjustment with
regards to the Additional Premises located on the 9th floor, for Sections 3
& 4 shall be limited to 50% of the 9th floor Additional Premises (10,337
rsf).
6. The rent as specified in Section 1.2 as outlined herein represents a
"pocket space" of 10,338 rentable square feet on the 9th floor, for which
rent and operating expenses/ taxes shall not be charged during the months
July 1, 1999 - January 31, 2000.
7. Section 28 First Right to Lease is revised to read the 11th floor only.
8. Section 29 Parking is revised to read "thirty (30) monthly parking permits
three (3) of which must be designated carpool parking" effective July 1,
1999.
9. Lessor shall provide Lessee with a tenant improvement allowance of $9/usf
($165,555) for improvements to the 9th floor Additional Premises. Since
time is of the essence in completing the tenant improvement work on the 9th
floor, Lessee and Lessor shall diligently pursue the completion of their
respective work in keeping with the attached schedule marked Exhibit B.
10. Lessee shall have the right to sublease the 15th floor in keeping with the
terms and conditions outlined in Section 22 of the Lease, however, Lessor
agrees not to exercise its right of recapture as provided in Section 22 of
the Lease. In addition, in the event the sublease term commences prior to
the August 1, 1999 rent commencement date for the 15th floor, Lessor agrees
to waive rent and other costs for the prior period, however, rent shall
commence August 1, 1999 as provided herein. Section 22.4(f) shall be
revised to read that "any rent or other consideration accruing to Lessee as
the result of such assignment or sublease which is in excess of the rent
then being paid by Lessee, net of cost associated with the sublease shall
be split equally between Lessor and Lessee monthly as additional rent".
11. All other terms and conditions are to remain the same.
47
Lessee: Lessor:
InterNAP Network Services, Inc. Union Square Limited Partnership, a
Washington Limited Partnership
By Unico Properties, Inc. (Manager
and authorized rental agent for Union
Square Limited Partnership)
By /s/ Xxxx X. XxXxxxx By /s/ Xxxxxx X. Xxxx
--------------------------------- ---------------------------------
Its V.P. Finance Administration Its Senior Vice President
-------------------------------- --------------------------------
Date 4/9/99 Date 4/9/99
------------------------------- -------------------------------
48
LESSOR'S ACKNOWLEDGEMENT
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
On this 9th day of April, 1999, before me personally appeared Xxxxxx X.
Xxxx, to me known to be the Senior Vice President of UNICO PROPERTIES, 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 and UNION SQUARE LIMITED PARTNERSHIP, for the uses and purposes
therein mentioned, and on oath stated that he (she) was authorized to execute
the said instrument and that the seal affixed (if any) is the corporate seal of
said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year first above written.
SEAL /s/ Xxxxxxx X. Xxxxxxx
State of Washington ------------------------------------
Xxxxxxx X. Xxxxxxx
Notary Public in and for the State of
Washington, residing at Seattle.
My commission expires April 2, 2002
49
[DIAGRAM]
Two Union Square
-----------------
Floor 9
50
[DIAGRAM]
Two Union Square
-----------------
Floor 10
51
March 17, 1999
Xxxx Xxxxxx
Director of Leasing, Union Square
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
RE: PROPOSED INTERNAP CONSTRUCTION SCHEDULE, 0xx XXXXX XXX XXXXX XXXXXX
Dear Arne,
I recently spoke with Corr Xxxxxx of InterNAP to discuss the upcoming
construction project within the 0xx xxxxx xx Xxx Xxxxx Xxxxxx. He confirmed that
Xxx Xxxx will be developing the architectural plans and upon their release would
like three general contractors to bid the project. At that time no date for the
release of the construction documents from Xxx Xxxx had been established.
It is my understanding that the lease commencement date for InterNap will be
July 1. To meet this date I would propose the following schedule. This schedule
is only a guideline, for I cannot determine the scope of work nor the lead-time
for any special materials Xxx Xxxx may propose.
Date Task Duration
---- ---- --------
July 1 Day One of Occupation NA
June 30 InterNAP Move One Day
June 28 Furniture Installation Three Days
June 24 Construction Punch Work Two Days
June 23 Construction Complete NA
May 3 Construction Commencement Eight Weeks
April 26 Bid Qualifying and Cost Approval One Week
Receive Construction Permit
April 26 Bids Due for GC's One Day
April 12 Begin GC Bidding Two Weeks
April 9 InterNAP Approved CD's Due NA
52
[DIAGRAM]
Two Union Square
-----------------
Floor 15
53
Xxxx Xxxxxx
Director of Leasing, Union Square
InterNAP Construction Schedule
Page 2
April 5 Preliminary CD's Due NA
Submit to Engineering for Design
A firm construction schedule will be requested of each general contractor upon
the submittal of the bids.
Please contact me with any questions you may have.
Thanks,
/s/ Xxxxx Xxxxxx
-------------------------------------
Xxxxx Xxxxxx
Union Square Construction Manager
54
THIRD AMENDMENT TO LEASE
Lessor: Union Square Limited Partnership
Lessee: InterNAP Network Services, Inc.
Premises: Commonly referred to as Suite 1000 in the Two Union Square Building
as more particularly described in the Lease.
Date of this
Amendment: July 1, 1999
Lessor and Lessee are parties to the Lease dated June 11, 1998, as amended
November 2, 1998 and April 6, 1999, and desire to amend the Lease as follows:
1. Section 1.1 Leased Premises reading Rooms 1001-37, Rooms 901-37, and Rooms
1501-37 changed to read Rooms 1001-37, Rooms 901-37, Rooms 1501-37, and
Rooms 624-37, 601-09 as outlined in red on the attached Exhibit A.
2. Section 1.2 Floor Areas reading 56,722 usable square feet, 61,893 rentable
square feet shall be changed to read 67,240 usable square feet, 74,094
rentable square feet effective October 1, 1999.
3. Section 1.2 Floor Areas shall be changed from 5.49463 percent of the
Building, to 6.57778 percent of the Building. For purposes of Sections 3 &
4 12,201 rsf, or 1.08316 percent of the Building shall have a 1999 base
year for calculating increases in accordance with the provisions of
Sections 3 & 4.
4. Section 1.4 Rent is hereby amended as follows:
Commencing October 1, 1999 and ending January 31, 2000 the base monthly
rent shall be $150,035.
Commencing February 1, 2000 and ending June 30, 2000 the base monthly rent
shall be $175,868.
Commencing July 1, 2000 and ending August 31, 2000 the base monthly rent
shall be $177,591.
Commencing September 1, 2000 and ending September 30, 2000 the base
monthly rent shall be $179,745.
Commencing October 1, 2000 and ending June 31, 2001 the base monthly rent
shall be $180,762.
55
Commencing July 1, 2001 and ending July 31, 2001 the base monthly rent
shall be $182,485.
Commencing August 1, 2001 and ending June 30, 2002 the base monthly rent
shall be $185,909.
Commencing July 1, 2002 and ending September 30, 2002 the base monthly rent
shall be $189,354.
Commencing October 1, 2002 and ending June 30, 2003 the base monthly rent
shall be $190,371.
Commencing July 1, 2003 and ending July 31, 2003 the base monthly rent
shall be $192,094.
Commencing August 1, 2003 and ending September 30, 2003 the base monthly
rent shall be $195,518.
5. Section 29 Parking is revised to read 38 monthly parking permits upon
the full execution of the Third Amendment to Lease.
6. Lessor shall provide Lessee with a tenant improvement allowance of $8/usf
($84,144) for improvements to the 6th floor additional premises.
7. Section 28 First Right to Lease is revised to read the 11th floor and
the remainder of the 6th floor, subject to rights granted to third parties.
All other terms and conditions of the Lease are to remain the same.
Lessee: Lessor:
InterNAP Network Services, Inc. Union Square Limited Partnership, a
Washington Limited Partnership
By Unico Properties, Inc. (Manager and
authorized rental agent for Union Square
Limited Partnership)
By: /s/ Xxxx X. XxXxxxx By: /s/ Xxxxxx X. Xxxx
--------------------------------- ------------------------------------
Its: Chief Financial Officer Its: Sr. V.P.
-------------------------------- -----------------------------------
Date 7/2/99 Date 7/9/99
-------------------------------- -----------------------------------
56
LESSOR'S ACKNOWLEDGEMENT
STATE OF WASHINGTON)
) S8.
COUNTY OF KING )
On this 9th day of July, 1999, before me personally appeared Xxxxxx X.
Xxxx, to me known to be the Senior Vice President of UNICO PROPERTIES, 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 and UNION SQUARE LIMITED PARTNERSHIP, for the uses and purposes
therein mentioned, and on oath stated that he (she) was authorized to execute
the said instrument and that the seal affixed (if any) is the corporate seal of
said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year first above written.
/s/ XXXXXXX X. XXXXXXX
--------------------------------------
Xxxxxxx X. Xxxxxxx
[NOTARY SEAL] Notary Public in and for the State of
Washington, residing at Seattle.
My commission expires April 2, 2002.
57
LESSEE'S CORPORATE ACKNOWLEDGEMENT
STATE OF WASHINGTON)
) ss.
COUNTY OF KING )
On this 2nd day of July, 1999, before me personally appeared Xxxx XxXxxxx
to me known to be the Chief Financial Officer, 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 they (he or she) were
authorized to execute the said instrument and that the seal affixed (if any) is
the corporate seal of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year first above written.
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NOTARY (Print Name) Xxxxxxxx Xxxxxxxx
PUBLIC Notary Public in and for the State of
SEAL Washington, residing at King County
My commission expires 9/21/02.
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[DIAGRAM]
Two Union Square
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Floor 6
