EXHIBIT 10.6
LEASE AGREEMENT
LEASE AGREEMENT ("LEASE") made as of the 30th day of March, 2005, between
Primestar Investment Corp., a Washington corporation ("LANDLORD"), with an
address at 00000 00xx Xxxxxx Xxxxx, Xxxxxxx Xxx XX 00000; and WESTSOUND BANK AND
MORTGAGE, a Washington corporation ("TENANT") with an address at 000 Xxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000.
Landlord and Tenant Agree that:
ARTICLE 1. LEASE SUMMARY;
The following summary of a limited number of the provisions of this Lease is
provided simply for convenient reference. This Lease must be reviewed carefully
in its entirety to ascertain the provisions of this Lease. In no event shall any
portion of this summary limit or affect the application of any other provisions
of this Lease.
1.01. TERM: Five years with Option to Renew for Two Additional Terms of Five
Years as laid down in Article 4.
1.02. OFFICE AREA: a) 3,420 square feet of gross leasable floor area within the
first floor of the Project (as such term is defined in Section [2.01] of this
Lease), which is irregular in shape and approximately 70 feet long and 45 feet
wide.
b) EXTERIOR SIGN: Tenant may at its sole cost install one lighted sign on the
exterior face of the building with an approximate dimension of 40' by 4' to be
located in place of existing xxx0xxxx.xxx sign on top of the sixth floor deck
facing towards Northeast towards Interstate 5 Freeway.
1.03. MINIMUM RENT: a). Office Minimum Rent shall be charged for an area of
2,520 square feet for the first seven months commencing from June 1, 2005
through December 31, 2005, and thereafter Tenant shall pay Minimum Rent for the
full Office Area of 3,420 square feet. For the first seven calendar months
Tenant shall pay a sum of $3,885.00 per month and then, for the next seventeen
months of the initial term of the Lease, Tenant shall pay $5,272.50 per month,
based on the Minimum Rent of $18.50 per square foot per annum. Thereafter,
beginning from the second anniversary of the Lease Commencement date, the
Minimum Rent for the full Office Area shall increase annually at each
anniversary by $0.50 per square foot per annum.
b). MINIMUM RENT FOR THE EXTERIOR SIGN: Tenant shall pay Minimum rent for the
Exterior Sign in the sum of $1,500.00 per month for five years of the initial
term of the Lease. Thereafter, commencing from the beginning of the sixth year
if Tenant exercises its Option to Renew the Lease Term, the Minimum Rent for the
Exterior Sign shall increase
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at the rate of 5% per annum.
1.04. OPERATING EXPENSES: Tenant's Pro Rata Share of Operating Expenses (as such
term is defined in Section 8.03 of this Lease), for the first year of the
initial term of the Lease is estimated at $6.90 per square foot. The estimated
monthly Pro Rata share of the Operating Expenses for the first seven months of
the first year of initial term is $1,449.00 and the for the remainder of the
first year is $1,966.50.
1.07. SECURITY DEPOSIT: Amount equal to one month Rent; ("CASH SECURITY").
1.08. PREPAID RENT: Cash Deposit paid equal to one month Rent shall be prepaid
on the signing of this Lease, to be applied to the first month of the Lease.
ARTICLE 2. LEASE/USE OF OFFICE:
2.01. PROJECT DEFINED: "PROJECT" shall mean the land owned or leased by
Landlord, in the City of Federal Way, King County, Washington, currently known
as Federal Way Center, and more particularly described on EXHIBIT "A" of this
Lease, the building(s) and improvement(s) located on the land, the fixtures
(excluding the tenants' trade fixtures), and all personal property located on
and used by the Landlord in the operation, maintenance, repair or replacement of
the building(s), improvement(s), fixtures and personal property. A site plan of
the Project showing its current configuration is annexed to this Lease as
EXHIBIT "B".
2.02. OFFICE DEFINED: "OFFICE" shall mean the part of the Project which is
leased to Tenant The location of the Office is depicted on the floor plan
attached as EXHIBIT "C" to this Lease. The approximate dimensions of the Office
are set forth in Section [1.02] of this Lease. The Office does not include any
property not shown as part of the Office on Exhibit "C", including without
limitation intended: any basement, balcony or terrace; the land underneath the
Office; any demising or exterior wall except the interior surface; any area more
than nine feet above the finished floor of the Office; or any portion of the
Office consisting of slab, ceiling, roof, partition, duct, wall or otherwise not
open space of the Office, which is now or later reasonably required by Landlord
to install, maintain, repairer replace, pipes, conduits, lines and wires to
furnish utilities and other services to the Project.
2.03. LEASE: Landlord leases the Office to Tenant and Tenant hires and takes the
Office from Landlord, subject to and in accordance with all the provisions of
this Lease.
2.04. USE/TRADE NAME: Tenant shall use the Office:
(A) Solely for commercial offices. Without limiting the application of the
preceding sentence, Tenant shall not use the Office in any manner which would
(i) violate any prohibition, restriction or limitation in any instrument
presently encumbering the Project; or (ii) any use which would materially
adversely affect the image of the Project as a wholesome place for families to
visit, including by way of example only, for the operation or to assist in the
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operation of escort service, telephone sex service or internet pronography
service; or (iii) any display or depiction of graphic violence, nudity or sex.
(B) During the entire term of this Lease solely under the name WESTSOUND BANK
AND MORTGAGE provided, however, that after 30 days prior notice to Landlord,
Tenant shall have the right without Landlord's prior consent, to do business in
the Office under any other trade name specified in the notice.
ARTICLE 3. TERM:
The term of this Lease shall be for a period of five years (unless sooner
terminated in accordance with the provisions of this Lease). The term of this
Lease shall begin on the earliest of the following dates ("COMMENCEMENT DATE"):
(i) the latest of the following dates ("OUTSIDE COMMENCEMENT DATE"): (a) the
date Tenant receives a fully executed copy of this Lease; (b) the date which is
five days after the date Landlord gives Tenant notice that the Office is Ready
for Occupancy (as such term is defined in Section 5.04 of this Lease); (c) June
1, 2005; or (ii) the date the Tenant opens the Office for business. If the
Commencement Date does not occur within thirty (30) days after the full
execution of this Lease, then Landlord shall have the right to terminate this
Lease by giving notice of termination before the Commencement Date, unless
Landlord has wilfully failed to make the Office Ready for Occupancy. The term of
this Lease shall end on the earlier of the following dates ("TERMINATION DATE"):
(i) fifth year anniversary of the Commencement Date; or (ii) the date the term
of this Lease is sooner terminated in accordance with the provisions of this
Lease. Tenant shall be permitted to occupy the full Office Area upon execution
of this Lease Agreement by both the parties.
4. OPTION TO RENEW THE LEASE:
4.01. OPTION TO RENEW: Tenant shall have the right and option to extend the
Lease Term of this Lease Agreement for two additional terms of five (5) years by
delivering written notice of the exercise thereof to Landlord at least one
hundred twenty (120) days prior to the expiration of the initial lease term, or
then current extended term, pursuant to this paragraph, provided that at the
time of any such notice and at the commencement of any such extended lease term
Tenant is not in default hereunder beyond any applicable notice or cure periods.
Upon the delivery of said notice and subject to the conditions set forth below,
this lease shall be extended upon the same terms, covenants and conditions
provided in this Lease Agreement except as follows:
4.02 NEW MINIMUM RENT: The "New Minimum Rent" payable for each month during such
extended lease term shall be set to reflect an amount equivalent to the then
current fair market rate, at the commencement and for the duration of such
extended term, for space of equivalent quality, size, utility and location, with
the length of the extended lease term and credit standing of Tenant to be taken
into account; and considering rental rates and concessions prevalent in the
market place, the remaining lease term, the expected
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vacancy and any other relevant factors ("Fair Market Rental Rate").
Within sixty (60) days of the receipt of Tenant's notice of its intention to
Renew the Lease, Landlord shall submit to Tenant the amount of "New Minimum
Rent" payable for each month during the extended lease term determined in
accordance with Paragraph 4.02 above. However, any disagreement over the New
Minimum Rent shall be resolved by way of mutually agreed upon arbitrator. If
Landlord and Tenant fail to reach an agreement within ten (10) days following
Tenant's receipt of New Minimum Rent figures, then both the parties agree to
resolve such disagreement as follows: Landlord and Tenant shall, within twenty
(20) days following the disagreement each appoint an independent real estate
broker with at least five (5) years commercial real estate office leasing
experience in the county in which the Office is located. The two brokers shall
then, within ten (10) days after their designation, select and independent third
broker with said qualifications. The third broker shall, within ten (10) days of
being selected, choose either Landlord's or Tenant's submission of the Fair
Market Rental Rate, with selected amount shall be the Fair Market Rental Rate.
The losing party shall pay for all costs associated with this process. This Fair
Market Rental Rate shall be set for the first year of then renewed Lease Term
and shall increase annually at each anniversary of the renewal commencement date
at the rate equivalent to CPI as laid down in Article 8.02
4.03 NOTICE OF RENEWAL: Tenant shall have a period of thirty (30) days after
receipt of New Minimum Rent within which to notify Landlord in writing whether
it intends to exercise the Option to Renew the Lease or not.
4.04. PRORATA SHARE OF OPERATING EXPENSES for the extended Term shall continue
to increase as laid down in the Lease Agreement.
ARTICLE 5. LANDLORD'S CONSTRUCTION:
5.01. IMPROVEMENTS DEFINED: "IMPROVEMENTS" shall mean all tangible property
which is not land, currency, commercial paper, or inventory. Improvements
include without limitation intended, all buildings, improvements, fixtures,
trade fixtures, equipment, furnishings, furniture, wall and floor coverings,
signs and decorations.
5.02. LANDLORD IMPROVEMENTS: Landlord shall provide the Improvements ("LANDLORD
IMPROVEMENTS"), if any, which Landlord is obligated to construct or install
pursuant to the provisions of EXHIBIT "E" of this Lease. Landlord Improvements
shall be completed substantially in accordance with the applicable provisions of
Exhibit "E" and any work order signed by Landlord and Tenant. The Office is an
existing commercial office in an existing office building. Except for any
Landlord Improvements specified in Exhibit "E", the Office is offered for lease
in its current condition, "AS IS" with all existing faults and defects, patent
and latent. Except for any representations and warranties specified in this
Lease, Landlord makes no representations or warranties with respect to the
condition of the Office or the Project, express or implied and hereby disclaims
any representation or
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warranty which might be implied.
5.03. Intentionally deleted
5.04. READY FOR OCCUPANCY/WAIVER: The Office shall be deemed ready for occupancy
("READY FOR OCCUPANCY") on the earlier of: (i) June 1, 2005; or (ii) on the date
that the Landlord Improvements (but only those which can be completed without
the completion of any work which Tenant is obligated to perform) are
substantially completed. In the event Tenant takes possession of the Office and
fails to give Landlord prompt notice of any Landlord Improvements which are
either not completed, or improperly completed, Landlord shall be relieved of any
obligation to complete, replace or repair Landlord Improvements. If there is any
delay in the completion of Landlord Improvements as a result of any acts or
omissions of Tenant, the Office shall be deemed Ready for Occupancy on the date
the Office would have been Ready for Occupancy, but for such acts or omissions
of Tenant.
5.05. OCCUPANCY IS EVIDENCE: If Tenant occupies the Office; then in any action
or proceeding it shall be presumed that the Office was on the date of occupancy
in good condition and repair and that Landlord fulfilled all of its obligations
under this Lease which were required to be fulfilled on or prior to the date of
Tenant's occupancy.
ARTICLE 6: TENANT'S CONSTRUCTION AND ALTERATIONS:
6.01. Intentionally Deleted
6.02. OTHER IMPROVEMENTS: Tenant shall install or construct any Improvements and
other property necessary for the conduct of its business, which are not
specifically described on Exhibit "E" of this Lease.
6.04. LANDLORD'S CONSENT: Tenant shall not install or construct any Improvements
in the Office or the Project, nor make any alterations to the Office, without
obtaining the prior written consent of Landlord. However, without Landlord's
consent, Tenant shall have the right to make alterations within the Office if:
(i) the alterations will not: (a) be visible to anyone from the exterior of the
Office; nor (b) reduce the value of the Office; nor (c) reduce the utility of
the Office; nor (d) involve any structural alteration or affect any structural
component of the Office or the Project; nor (e) affect or involve any utility
system; and (ii) the total cost of all alterations performed within a twelve
(12) calendar month period does not exceed $2,500.00 No request for Landlord's
consent shall be made without furnishing Landlord with detailed plans and
specifications of the Improvements and alterations.
6.05. BONDS: If this Lease obligates Tenant to provide or maintain a Security
Deposit, then Tenant shall not commence the installation or construction of
Tenant Improvements or any other Improvements or alterations, unless and until
Tenant furnishes Landlord with payment and performance bonds, in form, amount
and from surety acceptable to Landlord, naming Landlord and Tenant as the
coinsureds, and insuring that the proposed work will be
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completed free and clear of any liens.
6.06. LIENS: Tenant shall not cause or permit the creation, existence, recording
or filing, of any mechanic's lien, materialman's lien or similar lien, arising
out of the performance of any labor or service or the provision of any material
in connection with the Office. Nor shall Tenant cause or permit the creation,
existence, recording or filing of any other lien, security interest or
encumbrance of any nature whatsoever, which may adversely affect or constitute a
breach by Landlord, or the holder of any deed of trust or mortgage, or the
landlord under any ground or other underlying lease encumbering the Project, or
any part thereof, under any such deed of trust, mortgage or lease.
ARTICLE 7. LANDLORD'S ARCHITECT/ENGINEER:
7.01. APPROVALS/DETERMINATIONS: Whenever any consent or approval may be sought
by Tenant for the installation or construction of any Tenant Improvements,
Improvements, or alterations; or any dispute may arise concerning the completion
of Landlord Improvements, or the physical damage of a Casualty or Condemnation
(as such terms are defined in Sections [15.01 and 16.01]. of this Lease), or the
reconstruction of the Office after Casualty or Condemnation, in the sole
discretion of Landlord, the approval or consent shall be given or withheld
and/or such issue shall be determined by any registered architect or licensed
professional engineer (collectively "ARBITER") selected by Landlord. The Arbiter
need not be registered or licensed in the jurisdiction in which the Project is
located. The fees and expenses of the Arbiter shall be borne equally by Landlord
and Tenant. Tenant shall pay its share of such fees and expenses to Landlord or
its designee within ten days after demand by Landlord. The decision of the
Arbiter shall be Final and Binding (as such term is defined in Section [7.02]
below).
7.02. FINAL AND BINDING DEFINED: "FINAL AND BINDING" shall mean a decision or
determination which (i) is not subject to any judicial review or appeal
whatsoever, other than by writ of certiorari or its equivalent, to determine if
the decision or determination was arbitrary or capricious or in violation of
Law; and (ii) shall be presumed correct in any action or proceeding.
ARTICLE 8. RENT PAYABLE TO LANDLORD:
8.01. GENERALLY:
"RENT" shall mean all moneys which Tenant is obligated to pay under the
provisions of this Lease, regardless of their characterization, including
without limitation intended, minimum rent; Pro Rata Share of Operating Expenses,
insurance charges and real estate taxes; late charges, liquidated damages, and
attorneys' fees. All Rent shall be paid in legal currency of the United States,
to Landlord, or its designee, at the address of Landlord set forth in the first
paragraph of this Lease, or any other place designated by Landlord, without
offset or reduction on account of any claim whatsoever. Landlord may require the
payment of Rent by electronic funds transfer by giving Tenant sixty (60) days
prior notice specifying how the transfers will be made and requesting Tenant
provide specific information to effect the
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automatic monthly electronic transfer of funds to Landlord's designated account.
Tenant shall provide the requested information within thirty (30) days after
Landlord's request.
8.02. MINIMUM RENT:
(A) Beginning on the Commencement Date and continuing through and including the
Termination Date, Tenant shall pay Minimum Rent (as such term is defined in
Section 8.02 (B) of this Article), in advance, on the first day of each calendar
month during the term of this Lease. Each payment of Minimum Rent shall be made
without prior notice of or demand for payment In the event the Commencement Date
or Termination Date is not the first day of a calendar month, the Minimum Rent
for such calendar month shall be prorated on a per diem basis.
(B) MINIMUM RENT: (a) FOR THE OFFICE: Office Minimum Rent shall be charged for
an area of 2,520 square feet for the first seven months commencing from June 1,
2005 through December 31, 2005, and thereafter Tenant shall pay Minimum Rent for
the full Office Area of 3,420 square feet. For the first seven calendar months
Tenant shall pay a sum of $3,885.00 per month and then, for the next seventeen
months of the initial term of the Lease, Tenant shall pay $5,272.50 per month,
based on the Minimum Rent of $18.50 per square foot per annum. Thereafter,
beginning from the second anniversary of the Lease Commencement date, the
Minimum Rent for the full Office Area shall increase annually at each
anniversary by $0.50 per square foot per annum.
It is further agreed between the Landlord and Tenant, that Tenant shall occupy
the full Office Area of 3,420 square feet upon execution of this Lease Agreement
by both the parties and delivery of one signed copy to Tenant with required
deposits;
(b) FOR THE EXTERIOR SIGN: Tenant shall pay Minimum rent for the Exterior Sign
in the sum of $1,500.00 per month for the first five years of the inifial term
of the Lease. Thereafter, beginning from the sixth year if Tenant exercises its
Option to Renew the Minimum Rent for the Exterior Sign shall increase at the
rate of 5% per annum.
(C) "LEASE YEAR" shall mean a period of 12 consecutive calendar months
(D) Despite any other provision of this Section to the contrary, the Minimum
Rent shall be increased on the first day of the 13th month during the Lease term
and on each one year anniversary thereof ("CPI ADJUSTMENT DATE"), to reflect any
Consumer Price Increase.
"CONSUMER PRICE INDEX INCREASE" shall mean an increase in Rent made in
proportion to any decrease, but not any increase in the purchasing power of the
United States dollar, by reference to the Consumer Price Index All Urban
Consumers (CPI-U) U.S. City Average All Items (1982-84'100) (the "PRICE INDEX")
published by the Bureau of Labor Statistics of the U.S. Department of Labor, or
a successor or substitute index selected by Landlord and appropriately adjusted
by Landlord. A Consumer Price Index Increase shall
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be computed as follows:
(i) The Price Index figure for the month of November during each year shall
be compared to the Price Index figure for the month of November in the
immediately preceding calendar year, and the applicable Rent shall be increased,
if at all, for the 12 months immediately following the next succeeding CPI
Adjustment Date by an amount equal to the percentage increase (rounded off to
the nearest whole percent) between the Price Index figure for the month of
November in the immediately preceding calendar year, and the Price Index figure
for the month of November in the current Lease Year, multiplied by the
applicable Rent payable during the current calendar year (and in the event the
Rent for the current calendar year was reduced or abated for any reason or the
Lease term did not begin on January 1st; then nevertheless for the purposes of
this section (i), the applicable Rent payable for the current calendar year
shall be deemed payable in full for a complete calendar year.
(ii) By way of example only: Assuming that the Commencement Date of this
Lease was June 1, 1994; the Minimum Rent for the first 12 months of the Lease
term were $100.00 per month; the Price Index figure for the month of November,
1993 was 300; and the Price Index figure for the month of November, 1994 was
315.2; the Minimum Rent for the 12 months immediately following the first CPI
Adjustment Date would be increased as follows: the percentage of increase of the
Price Index figure for November, 1994 (315.2) above the Price Index figure for
November, 1993 (300), would be five percent (5.00%) (rounded off to the nearest
whole percent). The Minimum Rent for the first calendar year (1994) is deemed to
be $1,200.00 (even though the Minimum Rent payable during the 1994 calendar year
were actually only $700.00); multiplied by five percent (5.00%), the Minimum
Rent for the 12 months immediately following the first CPI Adjustment Date would
be $1,260.00.
8.03. PRO RATA SHARE:
(A) "PRO RATA SHARE" shall mean a fraction, with the Office Area as the
numerator and the Project Area (as such term is defined in Section 8.03(C) of
this Lease) as the denominator. For the purpose of this Lease, Tenants Pro Rate
share of all operating expense shall be 4.6% of the total Operating Expenses as
defined in Section 8.07 of this Lease.
(B) The dimensions and square footage of the gross leasable floor area within
the Office were determined by measuring from the center of demising walls,
except where the wall is an end or exterior wall, in which case the measurement
was made to the exterior side of the wall), without any deduction for any area
within the Office, including by way of example only: elevator shafts, columns,
stairs, fire escapes, lobbies, electric or other utility closets, rest rooms,
hallways.
(C) "PROJECT AREA" shall mean the square footage of the gross leasable floor
area within the building(s) within the Project, but excluding: (i) any parking
garages or other free-
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standing structures designed for parking vehicles, and (ii) all interior Common
Area. The Project Area as of the date of this Lease is 75,071 square feet.
8.04. REAL ESTATE TAXES: [INCLUDED IN OPERATING EXPENSES IN 8.07]
(A) Tenant shall pay its Pro Rata Share of all taxes and assessments
(collectively "REAL ESTATE TAXES") of every nature whatsoever (including without
limitation intended, ordinary, extraordinary, general and special), levied,
assessed or imposed upon the Project or any part thereof. Real Estate Taxes
include without limitation intended (i) all assessments and charges imposed by
any Government (as such term is defined in Section 8.04(B) of this Lease), or
pursuant to any Law whatsoever; and (ii) any tax, regardless of its
characterization, which may be levied or imposed upon the Rent, in lieu of, or
in addition to any other tax which would otherwise constitute Real Estate Taxes.
In the case of assessments which can be paid in installments without the
imposition of any penalty, only the installments (together with any interest
payable by reason of payment in installments) which accrue during the Lease term
shall be included in Real Estate Taxes. Real Estate Taxes shall not include: (i)
any assessments levied for either (a) any new construction in or expansion of
the Project, or (b) which are required for any new construction in or expansion
of the Project; and (ii) any transfer, inheritance, estate, income (subject to
Tenant's obligation to pay to Landlord the amount of any tax specifically levied
on the Rent), corporate or franchise tax.
(B) Based upon estimates made by Landlord at any time and from time to time,
Tenant shall pay an estimated amount of its Pro Rata Share of Real Estate Taxes
("ESTIMATED TAX REIMBURSEMENT") in advance, on the first day of each calendar
month during the term of this Lease. In the event Landlord determines at any
time, and from time to time, that Tenant's actual Pro Rata Share of Real Estate
Taxes exceeds the Estimated Tax Reimbursement, Tenant shall pay the amount of
the deficiency ("TAX UNDERPAYMENT") to Landlord or its designee, within 20 days
after demand by Landlord. In the event the Estimated Tax Reimbursements for any
Lease Year exceed Tenant's actual Pro Rata Share of Real Estate Taxes, Tenant
shall be credited the amount of such overpayment against the succeeding
Estimated Tax Reimbursement(s) due. If the Lease term expires before the credit
is exhausted, the unexhausted portion of the credit shall be refunded to Tenant
within 30 days after the later of the date (i) the term of this Lease expires,
or (ii) of Tenant's request for the refund. The actual amount of Tenant's Pro
Rata Share of Real Estate Taxes shall be determined separately for each Lease
Year, compared to actual tax bills received. Landlord shall provide proof
thereof at Tenant's request
(B) "GOVERNMENT" shall mean all federal, state, county, municipal and other
governments; and governmental and quasi-governmental branches, authorities,
districts, courts, tribunals, boards, agencies, departments, commissions,
officers, judges, agents, employees, and other instrumentalities.
(C) "LAW" shall mean all law; and all statutes, ordinances, regulations, rules,
orders,
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judgments, and other requirements of the Government.
(D) Tenant shall also pay to Landlord upon demand by Landlord, the entire amount
of any Real Estate Taxes due as a result of any inventory in the Office and any
Improvements constructed or installed in the Office.
(E) Tenant shall pay at least ten days before the date due all taxes levied,
assessed or imposed upon any personal property owned, installed or used by
Tenant. Within 20 days after a request from Landlord, Tenant shall furnish
Landlord with proof of payment reasonably satisfactory to Landlord.
8.05. TAX APPEALS: [INCLUDED IN OPERATING EXPENSES 8.07]
(A) Landlord shall have the right at any time and from time to time, to effect
any action or proceeding whatsoever ("TAX APPEAL"), challenging any
determination of the amount of the assessed value of the Project, or any part of
the Project, for the purposes of Real Estate Taxes. For this purpose Landlord
may retain such attorneys, appraisers and other persons and entities as Landlord
may deem appropriate. Tenant shall cooperate with Landlord in the preparation,
commencement, prosecution and appeal of any Tax Appeal.
(B) In the event Landlord shall successfully prosecute any Tax Appeal, Tenant
shall pay to Landlord or its designees, within 20 days after demand by Landlord,
Tenant's Pro Rata Share of all costs and expenses incurred by Landlord in
connection with such Tax Appeal, including without limitation intended, all
Litigation Expenses (as such term is defined in Section 8.05(C) of this Lease),
Provided that the pro-rata expense do not exceed any benefit innurred for the
following tax year.
(C) "LITIGATION EXPENSES" shall mean all costs and expenses whatsoever, paid or
incurred by a party under this Lease, in anticipation of, or during the
prosecution, appeal, settlement or enforcement of any action or proceeding
whatsoever. Litigation Expenses shall include without limitation intended, the
amounts of judgments, awards and settlements; attorneys' fees and disbursements;
expert witness', title search, title commitment, title insurance,
stenographers', transcript, filing, printing, copying, marshals', sheriffs', and
process servers' fees.
(D) If as a result of a successful Tax Appeal, there shall be a Real Estate Tax
overpayment, Tenant's Pro Rata Share of the excess payment will be credited
against the succeeding payments of Estimated Tax Reimbursement(s) due. If the
Lease term expires before the credit is exhausted, the unexhausted portion of
the credit shall be refunded to Tenant within 30 days after the later of the
date (i) the term of this Lease expires, or (ii) of Tenant's request for the
refund.
8.06. PROJECT'S INSURANCE: [INCLUDED IN OPERATING EXPENSES 8.07] Tenant shall
pay its Pro Rata Share of the cost of the Project's Insurance (as such term is
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defined in Section [9.03 (A)] of this Lease). Based upon estimates made by
Landlord at any time and from time to time, Tenant shall pay an estimated amount
of its Pro Rata Share of the cost of the Project's Insurance ("ESTIMATED
INSURANCE REIMBURSEMENT"), in advance, on the first day of each calendar month
during the term of this Lease. In the event Landlord determines at any time and
from time to time, that Tenant's actual Pro Rata Share of the cost of the
Project's Insurance exceeds the Estimated Insurance Reimbursement, Tenant shall
pay the amount of the deficiency ("INSURANCE UNDERPAYMENT") to Landlord or its
designee, within 20 days after demand by Landlord. In the event the Estimated
Insurance Reimbursements for any Lease Year exceed Tenant's actual Pro Rata
Share of the cost of the Project's Insurance, Tenant shall be credited the
amount of such overpayment against the succeeding Estimated Insurance
Reimbursement(s) due. If the Lease term expires before the credit Is exhausted,
the unexhausted portion of the credit shall be refunded to Tenant within 30 days
after the later of the date (i) the term of this Lease expires, or (ii) of
Tenant's request for the refund. The actual amount of Tenant's Pro Rata Share of
the cost of the Project's Insurance shall be determined separately for each
Lease Year.
8.07. OPERATING EXPENSES: [SEE ESTMATED COMMON CHARGE 8.07 (C) PAGE 12 WHICH
APPLIES TO WESTSOUND BANK AND MORTGAGE]
(A) Tenant shall pay its Pro Rata Share of all reasonable costs and expenses of
every nature whatsoever, paid or incurred by Landlord, in the operation,
management, maintenance, repair, and replacement of the Project ("OPERATING
EXPENSES"). Operating Expenses shall include without limitation intended, all
costs and expenses of: janitorial services for the Project including the Office,
Monday through Friday, federal and State holidays excluded, at the same or
greater level of service as the Landlord has customarily provided to all tenants
of the Building; elevator maintenance, repairs and replacements; management;
snow removal; landscaping; re-paving; striping; painting; cleaning and replacing
flooring; sewage and Refuse (as such term is defined in Section 12.05 of this
Lease) removal; traffic and parking enforcement and control; security; pest and
vermin control; compensation and benefits of employees; fire protection;
supplies; insurance, including without limitation intended, public liability and
property damage insurance; personal property taxes; charges and rents for
Utilities (as such term is defined in Section [8.07(E)] of this Lease);
compliance with applicable Law; licenses, permits and other fees; parking area
surcharges and levies; a fee for the administration of the Project in an amount
equal to 5.00 percent of the total of all rent, attorneys' fees', accountants'
and other professionals' fees; and the cost of any financing of any equipment
for the Project.
(B) The Operating Expenses shall not include any of the following costs or
expenses:
(i) Costs incurred in connection with the initial construction or design of
the Projector, any expansion of the Project, or the construction of additional
buildings or structures on any part of the Project, or to repair, change,
improve, replace or correct defects in the original construction, expansion or
design of the Project or any buildings or structures on any part of
LEASE - 11
the Project
(ii) Capital replacements, expansions, additions, Improvements and repairs;
provided, however, that: (a) the cost of capital replacements and repairs shall
be amortized over the useful life of the replacements and repairs using straight
line depreciation, and the amount amortized each year, together with interest on
the unamortized balance at the rate of interest payable on the first mortgage or
deed of trust encumbering the Project shall not be included within Operating
Expenses; and (b) the cost of capital expansions, additions and improvements
included in the Operating Expenses shall be limited to those which will improve
the operating efficiency of the Project or reduce the Operating Expenses or
which may be required by any provision or application of Law not in effect as of
the date of this Lease.
(iii) Costs that are or are required to be reimbursed to Landlord (other
than through prorated absorption of such costs by a majority of the tenants in
the Project, and costs required to be reimbursed which are not collectible for
any reason except Landlord's negligence), including without limitation costs
covered by insurance that Landlord acquires or is obligated to provide under
this Lease (but reasonable deductibles shall be included in the Operating
Expenses) or pursuant to warranties made for the benefit of Landlord or costs
reimbursed to Landlord pursuant to provisions in leases with other tenants
(except for such "pro-rated" cost provisions, and costs required to be
reimbursed which are not collectible for any reason except Landlord's
negligence);
(iv) Landlord's administrative and overhead expenses not incurred directly
in operating, maintaining, repairing or replacing the Project;
(v) Costs incurred by reason of Landlord's negligence or breach of any
legal obligation (including any obligation of Landlord under any lease in the
Project);
(vi) Costs, including (without limitation) any professional fees,
commissions, remodeling costs or court costs, incurred in connection with the
enforcement of leases with other tenants of the Project, or obtaining or
retaining tenants for the Project;
(vii) Management fees in excess of five percent of the rents and other
charges collected from the tenants of the Project;
(viii) Amounts paid to persons or entities related to Landlord in excess of
the fair market value of services or materials provided in exchange;
(ix) Costs of achieving compliance with any environmental or other law or
regulation applicable to the Project which was in effect as of the date of this
Lease;
(x) Amounts payable under or in connection with Landlord's mortgage, deed
of trust, ground lease or other financing or refinancing arrangements;
LEASE - 12
(xi) Depreciation of or reserves for replacement of any of Landlord's
assets.
(xii) Costs incurred in advertising or promoting the Project for any
purpose, including (without limitation) sale of the Project;
(xiii) Costs, fines or penalties incurred due to violation by Landlord of
any applicable Law.
(xiv) Costs of sculpture, paintings, or other objects of art installed in
or on the Project.
(xv) Wages, salaries or other compensation or costs incurred for (a) any
managerial or executive employees or agents of Landlord (exclusive of that
portion attributable to the operation, management, maintenance, repair and
replacement of the Project); or (b) any persons employed in commercial
concessions operated by Landlord.
(xvi) Increases in insurance premiums attributable to hazardous conditions,
uses or activities of other tenants or occupants of the Project.
(C) Based upon estimates made by Landlord, at any time and from time to time,
Tenant shall pay an estimated amount of its Pro Rata Share of the Operating
Expenses ("ESTIMATED COMMON CHARGE"), in advance, on the first day of each
calendar month during the term of this Lease. For the purpose of this Lease,
Landlord and Tenant agree that Tenant shall pay an annual amount equal to $6.90
per square foot of the gross leaseable floor area comprising Office for the
first year of the Lease; this amount shall be paid monthly at the rate of
$1,499.00. for the first seven months of the first year of the initial Lease
Term, and a sum of $1,966.50 for the remainder of the first Year of the initial
Lease Term. Commencing with the first anniversary of the Commencement Date, the
annual amount will be increased based on actual Pro Rata Share of the Operating
Expenses budgeted by Landlord and adjusted annually based on actual Operating
Expenses of the Project
(D) "COMMON AREA" shall mean all property constituting the Project (including
without limitation intended, the foundations, roofs, walls, columns and other
structural elements; signs; parking areas; roads; malls; sidewalks; curbs;
unpaved areas; rooms; halls; stairs, ramps and other conveyances; and Utility
systems), except the offices in the Project.
(E) "UTILITIES" shall mean all utilities, including without limitation intended,
telephone, public address, electric, gas, water, sewage, drainage, heating, air
conditioning, ventilation, and cable television.
8.08. LATE CHARGES:
In the event Landlord or its designee does not receive full payment of Rent on
or before the date the payment is due; then within ten (10) days after due date,
Tenant shall pay a late charge, in an amount equal to the greater of (i) $50.00;
or (ii) 5.00 percent of the amount overdue.
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8.09. INTEREST AT DEFAULT RATE:
In the event Landlord or its designee does not receive any payment of Rent on or
before the date it is due; then within five (5) days after due date then, Tenant
shall pay interest on the amount overdue from the date it was due until the date
it is paid, at a rate of interest equal to the lesser of ("DEFAULT RATE") (i)
18.00 percent per year; or (ii) the highest legal rate in the jurisdiction in
which the Project is located.
8.10. BAD CHECK FEES:
In the event a check or draft tendered by Tenant in payment of Rent is not paid
by the drawee upon initial presentation, for any reason whatsoever; then within
ten (10) days after demand by Landlord or its designee, Tenant shall pay a bad
check charge in the amount of $50.00.
8.11. AMOUNTS PAID BY LANDLORD:
In the event the Landlord incurs or pays any cost or expense whatsoever, as a
result of (i) a Default (as such term is defined in Section [23] of this Lease);
and/or (ii) any actual or apparent emergency arising out of a breach in the
performance of any of Tenant's obligations under this Lease; and/or (iii)
Landlord's election to take such action as Landlord may deem appropriate to: (a)
cure such Default, or (b) mitigate the damages or potential damages arising from
such breach, if there is an actual or apparent emergency, which action may be
taken without notice to Tenant in the case of any actual or apparent emergency;
then within 20 days after demand by Landlord, Tenant shall reimburse Landlord
for all such reasonable costs and expenses (including without limitation
intended, the reasonable cost and expense of any work performed by any employee
of Landlord or its agent).
8.12. NET RENT:
This Lease is a "Net Lease." The Rent due under this Lease shall be "Net Rent."
Except for those obligations which Landlord expressly agrees to perform at its
sole cost and expense, Landlord shall not be obligated to incur or pay any cost
or expense in connection with the Office or the Project. Tenant shall perform
all of its obligations under this Lease at its sole cost and expense.
8.13. RENT TAX:
In the event any Government levies, imposes or charges any tax whatsoever, on
account of the Project, the interest of Landlord in the Project, this Lease,
Tenant, or the Rent, and the amount of such tax is not an obligation of Tenant
under any other provision of this Lease, within ten days after demand by
Landlord, Tenant shall remit its Pro Rata Share of such tax to Landlord (and in
the event Tenant's Pro Rata Share would not fully reimburse Landlord for the
amount of such tax which is fairly attributable to this Lease, Tenant shall pay
its fair share).
ARTICLE 9. INSURANCE:
9.01. MUTUAL WAIVER OF CLAIMS:
Despite any other provision of this Lease to the contrary, Landlord and Tenant
hereby waive any rights each may have against the other as a result of any loss
or damage caused to the respective party and its property, the Office and the
Project, arising from any risk covered by casualty insurance with "all-perils"
coverage ("CASUALTY INSURANCE") in the jurisdiction in
LEASE - 14
which the Project is located. Landlord and Tenant shall cause their respective
Casualty Insurance and any other policies covering loss by fire and/or causes
covered by all-perils coverage, to provide that the insurer waives ("WAIVER OF
SUBROGATION") all rights of recovery by way of subrogation against the other
party to this Lease, in connection with any loss covered by any such policies.
However, in the event the Waiver of Subrogation can only be obtained by the
payment of an additional premium over and above the premium for insurance
without the Waiver of Subrogation, (i) the party seeking to obtain the insurance
shall give the other party notice of such additional premium and request that
the other party pay such premium; and (ii) the other party shall have ten days
after the giving of such notice to either (a) place such insurance with another
insurer which is reasonably satisfactory to the party which gave the notice,
without such additional premium, or (b) agree to pay such additional premium (in
the case of Tenant, Tenant's Pro Rata Share). In the event that either Landlord
or Tenant cannot obtain the Waiver of Subrogation, or either Landlord or Tenant
cannot obtain the Waiver of Subrogation without additional premium and the other
party fails to fulfill the requirements of clause (a) or (b) of the immediately
preceding sentence, this Section 9.01 shall be deemed deleted and of no force or
effect while such conditions persist.
9.02. TENANT'S INSURANCE:
(A) Tenant shall maintain the following insurance coverage, commencing on the
date Tenant is given access to the Office and continuing through the Termination
Date and the date Tenant fulfills all of its obligations under Article [33] of
this Lease:
(i) PUBLIC LIABILITY AND PROPERTY DAMAGE:
Comprehensive bodily injury liability insurance with combined single limits of
not less than $2,000,000., covering any and all liability of Tenant for bodily
injury, death or property damage occurring in or about the Project, portions of
which may be provided under a so called "umbrella" or "excess liability" policy.
In the event that Tenant is unable to obtain such coverage Tenant shall obtain
commercial general liability and property damage insurance for bodily injury,
death or property damage occurring in or about the Project, with combined single
limits of at least $2,000,000. in the case of bodily injury, death or property
damage; portions of which may be provided under a so-called "umbrella" or
"excess liability" policy. In addition, in the event that Tenant is fails to
obtain liability insurance policies on an "occurrence basis" Tenant shall obtain
extension policies commonly referred to as "tail" policies at least 30 days
prior to the expiration of any policy which will not be renewed. All extension
policies (a) shall include coverage for all claims made after the date, of the
policy not renewed, regardless of the date such claims are made; and (b) shall
have limits equal to or greater than the policies which are not being renewed.
All liability policies shall specifically insure performance of the agreement of
Tenant, to indemnify Landlord, set forth in Section [32.01] of this Lease, as it
relates to liability for injury to or death of persons and damage to property.
(ii) TENANT IMPROVEMENTS AND INVENTORY:
Casualty Insurance covering all of Tenant Improvements (except any improvements
and fixtures which are covered by the Project's Insurance), inventory and other
personal property in or about the Office from time to time, in an amount not
less than the full replacement cost, without any
LEASE - 15
deduction for depreciation during the term of this Lease. If Tenant is required
to provide or maintain a Security Deposit under this Lease; then all the
proceeds of such insurance shall be held by Tenant as a trust fund for the
benefit of Landlord, to be applied to pay the costs and expenses of repair and
replacement of any property damaged or destroyed before being applied for any
other purpose.
(iii) PLATE GLASS/BOILER:
Insurance, or self-insurance if Tenant is not required to provide nor maintain a
Security Deposit under this Lease ("CREDIT TENANT"), against breakage of, or
damage to all plate glass in and about the Office, and insurance on any boiler,
furnace or air conditioning system, in or about the Office, with broad form
coverage in an amount not less than the full replacement cost, without any
deduction for depreciation during the term of this Lease.
(iv) OTHER INSURANCE/LIMITS:
Not sooner than the fifth anniversary of the Commencement Date and not more
often than once every five years during term of this Lease, Landlord shall have
the right to increase the limits and types of insurance coverage which Tenant is
required to obtain and maintain, by giving Tenant notice of such increase in
limits or coverage. Any such increase in limits or coverage shall be applicable
to the immediately succeeding renewal or replacement liability insurance policy,
provided, however, that if the term of the then current policy is longer than
one year, any such increase shall be applicable to the insurance coverage in
effect on and after the first anniversary that notice of such increase in limits
or coverage is given. Landlord's right to increase the limits or types of
insurance coverage is limited to such limits and types of coverage as the holder
of any first mortgage or deed of trust encumbering the Project may reasonably
require; provided such mortgagee is a bank, savings and loan association, trust
company, life insurance company, national broker-dealer, corporation whose
securities are listed on the New York Stock Exchange, Inc., or a pension fund
with a net worth in excess of $10,000,000 ("INSTITUTIONAL LENDER"); or in the
event that there is no such first mortgagee or deed of trust holder, such other
insurance coverages and such higher limits as may be required by any
Institutional Lender then holding or servicing mortgage or deed of trust loans
secured by comparable commercial property in the Seattle Metropolitan Area in
State of Washington.
(B) OWNER'S CONTINGENT OR PROTECTIVE LIABILITY INSURANCE:
Prior to commencing the installation or construction of Improvements, or
alterations, Tenant shall procure; and during the entire period of time that
Tenant installs or constructs Improvements, or alters the Office, Tenant shall
maintain; owner's contingent or protective liability insurance, covering all
claims not covered by the public liability and property damage insurance
required by Section [9.02(A)(i)] of this Lease.
(C) INSURERS/POLICIES:
All insurance which Tenant is obligated to maintain, shall be issued by
insurance companies authorized to do business in the jurisdiction in which the
Project is located, which have a "Best's Letter Rating" of not less than "A"
("Excellent"), with no adverse "Rating Modifier," and a "Financial Size
Category" of not less than "Class X" (or their then current equivalents) in the
LEASE - 16
most current "Best's Key Rating Guide" or the equivalent in a substitute or
successor publication selected by Landlord. All insurance policies shall: (i) in
form and substance be reasonably satisfactory to Landlord, unless Tenant is a
Credit Tenant in which case all insurance policies shall comply with each
applicable provision of this Lease; (ii) be written as primary policy coverage,
not contributing with, or in excess of any coverage carried by Landlord or
another; (iii) name Landlord, any mortgagee and any other person designated by
Landlord as additional insureds; (iv) except as otherwise provided for in
Section 9.01 of this Article, contain in each policy covering loss or damage to
property, an express waiver of the right of subrogation against Landlord; (v)
contain a provision that although Landlord is named as an insured, it shall
nevertheless be entitled to recover under the policy for any loss suffered as a
result of the acts or omissions of the Tenant; and (vi) contain a provision that
the insurer shall give Landlord at least 30 days prior written notice of any
termination or lapse of insurance coverage, reduction in insurance coverage, or
material change in the terms of insurance. Original policies of all required
insurance (or certificates satisfactory to Landlord), together with proof of
payment of the premiums, shall be delivered to Landlord prior to the date that
Tenant is given access to the Office. Thereafter, at least 30 days prior to the
termination or lapse of any original, renewal or replacement coverage, original
renewal or replacement policies (or certificates satisfactory to Landlord),
together with proof of payment of the premiums, shall be delivered to Landlord.
9.03. PROJECT'S INSURANCE:
(A) Landlord shall at all times during the term of this Lease, to the extent
obtainable, at the sole cost and expense of Tenant and other tenants of the
Project, procure and maintain Casualty Insurance (and insurance against such
other hazards as Landlord may deem appropriate) covering the Project; rent loss
insurance; broad form boiler and machinery insurance; and insurance on vehicles
and equipment (collectively "PROJECT'S INSURANCE"), with such limits and with
such insurers as Landlord may deem appropriate. The Casualty Insurance coverage
shall be no less than an amount sufficient to avoid coinsurance.
(B) Tenant shall not at any time during the term of this Lease keep or permit
any Improvements or inventory in or about the Project, or do anything in or
about the Project, which would increase the premium of, or nullify any of the
Project's Insurance or any other insurance obtained by Landlord. Within ten days
after demand by Landlord, Tenant shall pay any premium surcharge or increase
arising out of any act or omission of Tenant contrary to the prohibitions in the
immediately preceding sentence.
ARTICLE 10. LICENSES:
10.01. TO ENTER OFFICE:
Landlord may elect to give Tenant access to the Office, prior to the date it is
Ready for Occupancy, for the purpose of permitting Tenant to install and
construct Tenant Improvements. In the event Tenant is given access for such
purpose. Tenant shall not in any manner interfere with or impede the
installation or construction of Landlord Improvements; and all of the provisions
of this Lease shall be in full force and effect, provided, however, that Tenant
shall not be obligated to pay Minimum Rent, Overage Rent, Dues, and Tenant's Pro
Rata Share of
LEASE - 17
Operating Expenses, Real Estate Taxes and Project's Insurance (collectively
"MONTHLY RENT"), for any period prior to the Commencement Date.
10.02. TO ENTER COMMON AREA:
Tenant and all persons permitted in the Office by Tenant may use the accessways,
sidewalks, lobby, elevators, stairs, hallways and restrooms in the Common Area
("OPEN COMMON AREA"), in common with all other persons and entities entitled to
use Open Common Area; subject, however, to the provisions of this Lease and the
Rules and Regulations (as such term is defined in Article [28] of this Lease).
The permission granted by the immediately preceding sentence is a revocable
license, granted upon the condition that any use of the Open Common Area
conforms to the provisions of this Lease and the Rules and Regulations. If
Tenant is an entity, then Tenant's license to use the Open Common Area is not
subject to revocation unless there is a breach of the Rules and Regulations
which continues after the expiration of any applicable grace period. However, if
Tenant is an entity, the license of any principal, employee, agent, contractor
or supplier to use the Open Common Area, is subject to revocation upon any
breach of the provisions of this Lease or the Rules and Regulations affecting
the Open Common Area.
10.03. TO PARK VEHICLES:
Tenant shall have the non-exclusive right to use eleven [11] spaces for parking
motor vehicles operated by Tenant or its employees. Landlord shall have the
right but not the obligation to designate parking spaces for the exclusive use
of tenants of the Project and their employees. If the Landlord makes such
designation then Tenant and Tenant shall cause its employees to park their
vehicles solely in the parking spaces designated by the Landlord for the
exclusive use of the Tenant. Parking to the north of the building is currently
reserved for the visitors only. Tenant may use additional parking stalls for its
visitors in the areas designated for the entire Project after normal working
hours and on weekends.
ARTICLE 11. USE AND OPERATION OF OFFICE:
11.01. FAILURE TO DO BUSINESS:
Tenant shall: (i) on or before the Outside Commencement Date, open the entire
Office for business, adequately furnished, equipped and staffed; and (ii) after
the date the Commencement Date, continuously keep the Office open for business,
adequately furnished, equipped and staffed. In the event (i) Tenant fails to
open the Office for business, adequately furnished, equipped and staffed on or
before the Outside Commencement Date; or (ii) after the Outside Commencement
Date Tenant fails to continuously keep the Office open for business, adequately
furnished, equipped and staffed, on all days and at all times required under
this Lease; then in either of such circumstances Tenant shall pay to Landlord or
its designee, 20 days after demand by Landlord, Rent at the rate of $50.00 for
each day in which either of the conditions described in clauses (i) or (ii) of
this sentence occur.
LEASE - 18
11.02. COMPLIANCE WITH THE LAW, ETC.:
Tenant shall (i) comply with all Law governing the Tenant's use or occupancy of
the Office; (ii) not conduct any action or permit any action or condition which
would (a) violate any Law or the certificate of occupancy or any other Required
Permits (as such term is defined in Section [11.03] of this Lease) covering the
Office; or (b) which in the reasonable judgment of Landlord constitutes a public
or private nuisance, or a trespass; or (c) materially adversely affects the
business of the tenants of the Project; or (d) creates any hazardous condition
in the Project; (e) violates any work order issued by any insurer or holder of
any deed of trust or mortgage encumbering the Project or any part of the
Project; or (f) violates any of the encumbrances against the Project. The
obligations of Tenant under this Section 11.02 shall include without limitation
intended, the construction and installation of any Improvements required to
comply with Law or any work order issued by any insurer or holder of any deed of
trust or mortgage encumbering the Project or any part of the Project, but only
if required as a result of any Improvements or alterations made by Tenant, or
Tenant's specific use or method of operations.
11.03. REQUIRED PERMITS:
Tenant shall (i) obtain and maintain in full force and effect all licenses,
permits, certificates, approvals and other authorizations (collectively
"REQUIRED PERMITS") required by Law or the board of fire underwriters or other
recognized fire insurance rating organization, in connection with Tenant
Improvements or Tenant's use or occupancy of the Office; and (ii) prior to
opening the Office for business and thereafter from time to time within ten days
after a request from Landlord, deliver to Landlord evidence reasonably
satisfactory to Landlord that all Required Permits have been issued and are in
full force and effect.
11.04. HAZARDOUS SUBSTANCES:
(A) In the Office and Project and in the vicinity of the Office and Project,
Tenant shall not: (i) cause or permit the generation, manufacture, refinement,
transportation, treatment, storage, handling, installation, removal, disposal,
transfer, sale, production or processing of Hazardous Substances (as such term
is defined in this Section 11.04) or other dangerous or toxic substances, or
solid wastes; (ii) cause or permit the Release (as such term is defined in this
Section 11.04) or existence of any Hazardous Substances which might affect the
Project; (iii) cause or permit any substances or conditions, which may support a
claim or cause of action, whether by any Government or representative thereof,
or any other person, under the Comprehensive Environmental Response Compensation
and Liability Act of 1980, as amended ("SUPERFUND ACT"), the Resource
Conservation and Recovery Act of 1976, the Toxic Substances Control Act or any
other Law. For the purposes of this Lease the term "RELEASE" shall have the
following meaning: (i) the definition used in the Superfund Act; and (ii) (if
not included within the definition contained in the Superfund Act) the presence
of any Hazardous Substance. For the purposes of this Lease the term "HAZARDOUS
SUBSTANCES" shall have the following meaning: (i) the definition used in the
Superfund Act; and (ii) all matter which might adversely affect health, safety
or the environment and is subject to any Law regulating its Release, including
without limitation intended, petroleum and related by-products, hydrocarbons,
radon, asbestos, urea formaldehyde and polychlorinated biphenyl compounds
("PCB'S"). Despite the provisions of this Section 11.04, Tenant may stock and
use factory
LEASE - 19
packaged retail containers of products designed for office use, such as
photocopy toner, cleaning fluids, and correction fluids, but only if such
products are transported, treated, handled, removed, disposed, transferred, and
sold in strict compliance with all Law.
(B) Landlord has no actual current knowledge that the Office contains any
Hazardous Substance in violation of applicable Law. If the Office contains any
Hazardous Substance on the date the Office is Ready for Occupancy, Landlord
shall remove or encapsulate the Hazardous Substance in compliance with
applicable Law. If the Office contains Hazardous Substances on the date the
Office is Ready for Occupancy, the Outside Commencement Date shall be extended
one day for each day Tenant is required to cease making Tenant Improvements,
Tenant fixturing and/or Tenant stocking of the Office.
11.05. AMERICANS WITH DISABILITIES ACT:
Tenant shall comply with all applicable provisions of the Americans with
Disabilities Act (42 USC Sec. 12101 et seg.) and all of the applicable
regulations, rules, guidelines and technical standards promulgated pursuant to
the Americans with Disabilities Act (28 CFR 36), all as amended from time to
time (collectively "ADA"). Without limiting the obligation imposed by the
preceding sentence. Tenant shall:
(A) Be solely responsible for the Office's compliance with all applicable
provisions of the ADA, including without limitation intended, solely responsible
for making any structural and non-structural changes in the Office which may be
required by the ADA, except those required as a result of the Landlord
Improvements which shall be the sole responsibility of the Landlord;
(B) Not discriminate nor permit anyone in the Office to discriminate, directly
or through policies, procedures, standards or other criteria, or through
physical barriers or obstacles, against any individual on the basis of
disability in the full and equal enjoyment of the goods, services, facilities
and privileges available in and/or through the Office; and
(C) Take such affirmative steps as may be necessary to ensure that disabled
individuals are not excluded or denied goods or services or otherwise dealt with
differently than individuals who are not disabled.
11.05. GENERAL CONDUCT:
Tenant shall use and occupy the Office carefully, and conduct its business in a
manner consistent with the operation of a first class commercial office
building. Tenant shall treat all customers politely, and promptly and fully
address all legitimate complaints of customers in an appropriate fashion. Tenant
shall not permit the use of the Office for solicitations, demonstrations, sales
or promotions by persons other than Tenant (and any other persons or entities
consented to by Landlord in writing). Tenant shall not conduct or permit any
retail, catalog, auction, fire, bankruptcy, distress, liquidation,
going-out-of-business, close-out or similar sales in or about the Office.
11.06. BUSINESS HOURS:
LEASE - 20
Tenant shall keep the Office open for business, adequately furnished, equipped
and staffed from the Commencement Date through the Termination Date, Monday
through Friday excepting any federal. State or religious holidays observed by
the Tenant or its principals, at least from 10:00 A.M. through 4:00 P.M.
Landlord shall have the right to adopt Rules and Regulations which limit access
to and from the Project by requiring among other things, that any or all
individuals entering and leaving the Project: (i) sign in and out; (ii) provide
photo identification; and/or (iii) provide written evidence of their
authorization from the Landlord or tenants of the Project to enter or leave the
Project and/or remove property from the Project.
ARTICLE 12. UTILITIES
12.01. GENERALLY. Landlord shall install all Improvements which are required
outside the Office and inside the Project, to supply the Utilities, if any,
which Landlord is specifically obligated to furnish pursuant to the provisions
of Exhibit "E" of this Lease. Except as otherwise provided in Exhibit "E" of
this Lease, Tenant shall install all Improvements which are required in the
Office to supply all Utilities required or desired for the operation of its
business. Tenant shall pay all deposits, assessments and charges for meters,
sub-meters, delivery and the provision of all Utilities servicing the Office,
except electricity and any water or sewer service provided to the Office by
Landlord.
12.02. LANDLORD CONTROLS SELECTION. Landlord has advised Tenant that at the
present time [Puget Sound Energy] ("ELECTRIC SERVICE PROVIDER") is the utility
company selected by Landlord to provide electricity service for the Project.
Despite the preceding sentence, if permitted by Law, Landlord shall have the
right at any time, and from time to time during the Lease term, to either
contract for service from a different company or companies providing electricity
service (each such company is referred to as an "ALTERNATIVE SERVICE PROVIDER")
or continue to contract for service from the Electric Service Provider.
12.03. TENANT SHALL GIVE LANDLORD ACCESS. Tenant shall cooperate with Landlord,
the Electric Service Provider, and any Alternate Service Provider at all times
and, as reasonably necessary, shall allow Landlord, Electric Service Provider,
and any Alternate Service Provider reasonable access to the Project's electric
lines, feeders, risers, wiring, and any other machinery within the Office.
12.04. LANDLORD NOT RESPONSIBLE FOR INTERRUPTION OF SERVICE. In the absence of
Landlord's negligence Landlord shall not be liable or responsible for any loss,
damage, or expense Tenant may sustain or incur by reason of any change, failure,
interference, disruption or defect in the supply or character of the electric
energy supplied by the Electric Service Provider or any Alternate Service
Provider, or if electric energy is no longer available or suitable for Tenant's
requirements.
12.05. REFUSE. Landlord shall have the right to either (i) impose a uniform
system of refuse, trash, rubbish, garbage and waste (collectively "REFUSE")
removal for the Project, in which case Tenant shall comply with all Rules and
Regulations adopted by Landlord to implement and
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maintain such system, including without limitation intended, removal of Refuse
from the Office; and/or (ii) arrange for Refuse removal by an independent
contractor. In either or both events, the Pro Rata Share of the costs shall be
borne by Tenant as part of the Operating Costs.
ARTICLE 13. MAINTENANCE AND REPAIR:
13.01. LANDLORD MAINTENANCE AND REPAIR:
Landlord shall keep in good condition and repair the roof, foundation, concrete
floor slab, suspended ceiling, exterior doors, windows, interior doors and walls
installed by Landlord, demising and exterior walls (except their interior
surface), and Utility systems to the extent not installed or affected by any
Improvements or alterations made by the Tenant; and provide janitorial services
at the same or greater level of service as the Landlord has customarily provided
to tenants of the Building; provided, however, that Landlord shall have no
obligation to repair any damage: (i) caused by the acts or negligence of Tenant
or any person permitted in the Office by Tenant; (ii) to any Improvements
installed or constructed by Tenant; (iii) to any glass or plate glass installed
by Tenant; (iv) to any fixtures installed by Tenant; or (v) to any equipment
installed by Tenant. Landlord shall have no duty to inspect the Office. Tenant
shall give Landlord prompt notice of any condition which might require repair by
Landlord. Landlord shall have no liability, whatsoever, unless (i) the loss or
damage is not the subject of: (a) a Waiver of Subrogation, or (b) any property
or business interruption insurance Tenant may maintain; (ii) Tenant gives
Landlord prompt notice of the condition which requires repair by Landlord; and
(iii) Landlord fails to perform the required repair before the expiration of the
applicable grace period.
13.02. TENANT MAINTENANCE AND REPAIR:
(A) Tenant shall not commit waste, and shall not damage nor permit any other
person to damage the Office, the Improvements in the Office and all other
property of every nature whatsoever, in or about the Office, including without
limitation intended, the windows, glass, doors, walls and Utility components.
Tenant shall maintain in good condition and repair all portions of the Office
which the Landlord is not required to keep in good condition and repair,
(including interior walls, interior doors, fixtures and equipment installed by
Tenant; the interior surface of demising and exterior walls, the Tenant's Signs;
trade fixtures and floor coverings).
(B) Tenant shall keep the Office free from Refuse (except in appropriate Refuse
containers), stains, and objectionable odors. Tenant shall not block or impede
access on to or from, any sidewalk, accessway or other Common Area. Tenant shall
not use or permit the use of any Common Area for any storage, promotional,
distribution or sales purpose, or place or leave any property on the Common
Area.
ARTICLE 14. ASSIGNMENTS, SUBLETS, CONCESSIONS AND LICENSES:
14.01. Without the written consent of Landlord, which shall not be unreasonably
withheld, Tenant shall not cause or permit any assignment of this Lease or any
interest in this Lease (even to another tenant under this Lease), or mortgage,
pledge, hypothecate or otherwise
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encumber this Lease or any interest in this Lease, or the occupancy of the
Office or any part thereof by any person other than Tenant, or sublet the Office
or any part thereof, or grant any concession or license to use the Office or any
part thereof (collectively "LEASE TRANSFER"). Lease Transfer shall include any
Lease Transfer, whether direct or indirect, voluntary or involuntary, including
without limitation intended, by transfer of a majority or controlling interest
in an entity, merger, consolidation, dissolution or liquidation of an entity or
death, divorce or separation of an individual. Any Lease Transfer effected
without the written consent of Landlord shall be void and of no force or effect
whatsoever. Landlord shall not be deemed to have unreasonably withheld its
consent if Landlord in good faith and for a commercially reasonable reason from
a commercial office building landlord's perspective, refuses to grant Landlord's
consent. In its determination whether to consent or withhold consent to a Lease
Transfer, Landlord shall have the right to consider among other things: (i) the
business background and relevant commercial, managerial, and financial
experience of the transferee or its principals; (ii) the creditworthiness of the
transferee; (iii) the financial resources and net worth of the transferee; (iv)
the nature, character and quality of the transferee's business; (v) the effect
of the transferee's business on the tenant mix in the Project and the operation
of the Project, including by way of example only, the parking of vehicles and
the use of the elevators. The requirement for obtaining Landlord's consent to a
Lease Transfer shall continue to exist for all subsequent Lease Transfers
regardless of the number or nature of consents given to previous Lease
Transfer(s).
14.02. Any request for the consent of Landlord to a Lease Transfer shall be
accompanied by a detailed financial statement of the proposed transferee, a
written statement of the name and addresses of the proposed transferee, a
written authorization from the proposed transferee for the procurement of any
credit reports Landlord may deem appropriate, and a non-refundable $750.00 fee
(paid by certified or cashier's check) to cover the administrative, credit
report and legal costs paid or incurred in connection with the request. In
addition, Tenant shall furnish Landlord with any other information and documents
Landlord may request. Landlord may elect to terminate this Lease upon 30 days
notice, provided such notice of termination is given within 30 days after the
date Landlord receives a request for Landlord's consent to a Lease Transfer, and
all of the documents and information required by and/or requested by Landlord,
pursuant to the provisions of this Section 14.02.
14.03. In the event the proposed Lease Transfer provides for any consideration
from the transferee which is in excess of the Rent (or the portion of the Rent
fairly attributable to the portion of the Office in the case of a sublet,
concession or license), the consideration in excess of the Rent (or the portion
of the Rent fairly attributable to the portion of the Office, in the case of a
sublet, concession or license affecting less than the entire Office) shall
belong to and be paid to Landlord immediately, and Tenant shall have no rights
to such excess consideration whatsoever.
14.04. No Lease Transfer shall operate to relieve any Tenant, or any previous
Tenant, or any person or entity ("GUARANTOR") who signs a guaranty (in the form
which may be annexed as EXHIBIT "F" to this Lease, or otherwise) of the
fulfillment of the obligations of Tenant under this Lease, of its obligations
under this Lease or its guaranty, as the case may be, regardless of the
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number of Lease Transfers and the nature of any modification, extension, renewal
or termination of this Lease whatsoever. In the event of a Lease Transfer, all
of the provisions of this Lease shall be binding upon the transferee.
14.05. In the event of a Lease Transfer without the written consent of Landlord,
Landlord may nevertheless collect the Rent from the transferee, and the
collection of such Rent shall not be deemed an acceptance of the transferee or a
consent to the Lease Transfer, nor a waiver of any of the provisions of this
Article.
14.06. This Lease, Landlord's interest in this Lease and the Rent, may be freely
assigned and/or mortgaged, pledged, hypothecated or otherwise encumbered by
Landlord.
14.07. The use of the Office authorized by this Lease shall not change by virtue
of any Lease Transfer. Without implying any limitation on Landlord's discretion
to refuse to consent to a Lease Transfer, Landlord shall always have the right
to refuse to consent to any Lease Transfer which provides for or contemplates
any change or proposed change in the use of the Office authorized by this Lease.
ARTICLE 15. CASUALTY:
15.01. In the event that all or any part of the Office is damaged or destroyed
by fire or other casualty ("CASUALTY"), this Lease shall remain in full force
and effect; provided, however, that in the event the damage or destruction is so
extensive as to amount to a Total Loss (as such term is defined below) of the
Office or the Project, this Lease shall terminate as of the date of the
Casualty. In the event this Lease is not terminated pursuant to the provisions
of the immediately preceding sentence, Landlord shall repair or restore the
Office provided: (i) the entire cost of repair and restoration is paid out of
the proceeds of the Project's Insurance; (ii) the holders of any mortgages,
deeds of trust, ground and master leases encumbering the Project, consent to the
application of the proceeds of the Project's Insurance to the cost of repair and
restoration; (iii) the damage or destruction does not result in the termination
of any underlying or ground lease; (iv) the damage or destruction was not
caused, by any intentional tort, or violation of Law on the part of Tenant or
any person permitted in the Office by Tenant; (v) there are at least three years
remaining in the term of this Lease or any renewal term then in effect; and (vi)
within 90 days after the date of the damage or destruction, Landlord gives
Tenant notice of Landlord's intention to repair or restore. In the event
Landlord does not give the notice provided for in the immediately preceding
clause (vi), Tenant or Landlord may terminate this Lease as of the date of the
damage or destruction by notice given within 120 days after the date of the
damage or destruction. In the event Landlord elects to repair or restore the
Office subject to and in accordance with clauses (i) through (vi) of this
Section 15.01, Landlord shall commence and prosecute the completion of such
repair or restoration with reasonable diligence, taking into account the amount
of time which may be required to effect a settlement with or otherwise collect
the insurance proceeds from the insurer(s). In the event this Lease is not
terminated as a result of the damage or destruction and Landlord is obligated to
repair or restore the Office, Tenant shall reinstall and reconstruct Tenant
Improvements within 45 days after the date Landlord gives Tenant notice that the
Office is Ready for Occupancy, and reopen the Office for
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business, adequately furnished, equipped and staffed, within 60 days after the
date Landlord gives Tenant notice that the Office is Ready for Occupancy. "TOTAL
LOSS" shall mean damage or destruction which is not reasonably susceptible of
being fully repaired or restored for an amount of money less than 75.00 percent
of the actual cost of replacement of the Office or Project as the case may be.
15.02. "ANCHOR TENANT" Intentionally Deleted
15.03. in the event the Office or Project is damaged so substantially that
Tenant cannot conduct its business, then the Monthly Rent shall xxxxx from the
date that the business is discontinued. In the event that only part of the
Office is damaged so substantially that Tenant cannot conduct its business in
such portion of the Office, the Monthly Rent shall be abated, by an amount
determined by multiplying the Monthly Rent by a fraction, the numerator of which
is the square footage of the gross leasable floor area in the Office which is
damaged so substantially, and the denominator of which is the square footage of
the gross leasable floor area in the Office. In the event Landlord is required
to repair or restore the Office, such abatement of Monthly Rent shall continue
until 45 days after the date Landlord gives Tenant notice that the Office is
Ready for Occupancy. In the event Landlord is not required to repair or restore
the Office, such abatement of Monthly Rent shall continue until the earlier of
the following dates, (i) the date Tenant reopens the Office for business; or
(ii) 45 days after the date of the damage. Despite any other provision of this
Lease to the contrary, in no event shall the Monthly Rent be abated for a period
in excess of one year.
ARTICLE 16. CONDEMNATION:
16.01. In the event of a condemnation or other lawful taking (including without
limitation intended, by purchase or dedication) for any public or quasi-public
purpose {collectively "CONDEMNATION") of the entire Project or Office, this
Lease shall terminate as of the date possession vests in a grantee ("VESTING")
as a result of the Condemnation. In the event of a Condemnation of less than the
entire Project or Office, which destroys the usefulness of the Office for the
purpose it was leased, either Landlord or Tenant may elect to terminate this
Lease as of the date of the Vesting, by notice given within 30 days after the
date of the Vesting.
16.02. In the event of the Condemnation of the entire Common Area, this Lease
shall terminate as of the date of the Vesting. No Condemnation of parking spaces
shall give Tenant any right to terminate this Lease or obtain any abatement of
Rent, provided the number of parking spaces remaining after the date of the
Vesting is equal to or in excess of the minimum number required by Law; or
within a reasonable time after the date of the Vesting, Landlord provides
substitute parking spaces which together with the remaining parking spaces, is
equal to, or in excess of the minimum number required by Law.
16.03. In the event any Anchor Tenant terminates its lease as a result of a
Condemnation, Landlord shall have the right to terminate this Lease as of the
date of the Vesting, by notice
LEASE - 25
given within 30 days after the date Landlord receives notice of the termination
of the Anchor Tenant lease.
16.04. In the event of a Condemnation which does not result in the termination
of this Lease pursuant to Paragraphs 16.01,16.02 or 16.03 above, Landlord shall
repair or restore the Office to the extent practicable, provided: (i) the entire
cost of repair and restoration is paid out of the Condemnation award; (ii) the
holders of any mortgages, deeds of trust, ground and master leases encumbering
the Project, consent to the application of the Condemnation award to the cost of
repair and restoration; (iii) the Condemnation does not result in the
termination of any underlying or ground lease; (iv) there are at least 3 years
remaining in the term of this Lease or any renewal term then in effect; (v)
within 90 days after the date of the Vesting, Landlord gives Tenant notice of
Landlord's intention to repair or restore the Office. In the event Landlord does
not give the notice provided for in the immediately preceding clause (v). Tenant
or Landlord may terminate this Lease as of the date of the Vesting, by notice
given within 20 days after the date of the Vesting. In the event Landlord
elects to repair or restore the Office, Landlord shall commence and prosecute
the completion of such repair or restoration with reasonable diligence, taking
into account the amount of time which may be required to effect a settlement
with, or otherwise collect the Condemnation award from the Condemnation
authority. In the event this Lease is not terminated as a result of a
Condemnation, Tenant shall reinstall and reconstruct Tenant Improvements within
45 days after the date Landlord gives Tenant notice that the Office is Ready for
Occupancy, and reopen the Office for business, adequately furnished, equipped
and staffed within 60 days after the date Landlord gives Tenant notice that the
Office is Ready for Occupancy.
16.05. In the event of any Condemnation, whether or not this Lease is
terminated, the entire award from the Condemnation shall belong solely to
Landlord, without any deduction for the leasehold estate of Tenant. Tenant
hereby irrevocably assigns any and all right, title and interest it might
otherwise have in and to any Condemnation award to Landlord. Nevertheless,
Tenant shall have the right to recover from the Condemnation authority, damages
to Tenant's business and the expenses and loss incurred in removing Tenant's
trade fixtures, inventory and other personal property.
16.06. Despite any other provision of this Lease to the contrary in the event of
a Condemnation for a period not in excess of six months, this Lease shall
continue in full force and effect; provided, however, that the Monthly Rent
shall be equitably abated during the period of the Condemnation.
16.07. In the event of a Condemnation of only part of the Office, the Monthly
Rent shall be abated as of the date of the Vesting, by an amount determined by
multiplying the respective Rent by a fraction, the numerators of which is the
square footage of the gross leasable floor area in the Office which is taken in
Condemnation, and the denominator of which is the square footage of the gross
leasable floor area in the Office.
ARTICLE 17. ESTOPPEL CERTIFICATES:
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17.01. EXECUTION: Within 20 days after demand by Landlord, Tenant shall
complete, execute, acknowledge and deliver to Landlord or its designee, a
certificate ("ESTOPPEL CERTIFICATE") representing that: (i) this Lease is
unmodified (or stating the modifications); (ii) this Lease is in full force and
effect; (iii) there are no defenses or offsets to the performance of the
obligations of Tenant under this Lease (or stating those claimed by Tenant);
(iv) the date to which Rents have been paid in advance; (v) the amount and
balance of the Security Deposit, if any; (vi) there is no breach of Landlord's
obligations under this Lease and no event or circumstance which with the passage
of time and/or the giving of notice would constitute a default on the part of
Landlord (or stating the breaches and defaults claimed by Tenant); (vii) there
is no breach of Tenant's obligations under this Lease and no event or
circumstance which with the passage of time and/or the giving of notice would
constitute a Default on the part of Tenant (or stating those in breach or
Default); and (viii) such other information as Landlord or its designee may
reasonably require. Any purchaser, lessee, lender or other person or entity to
whom an Estoppel Certificate is delivered, shall be entitled to rely upon the
contents, regardless of the name of the addressee, if any.
17.02. CONCLUSIVE PRESUMPTION: In the event Tenant fails to complete, sign,
acknowledge or deliver any Estoppel Certificate, within 20 days after a demand
by Landlord; then the person or entity on whose behalf the Estoppel Certificate
was requested shall be entitled to conclusively presume, that: (i) this Lease is
unmodified; (ii) this Lease is in full force and effect; (iii) that there are no
defenses or offsets to the performance of the obligations of Tenant under this
Lease; (iv) Rents have not been paid more than one month in advance; (v) there
is no Security Deposit; (vi) there are no outstanding notices of a default by
Landlord in the performance of any of its obligations under this Lease; and
(vii) there is no breach and no default on the part of Landlord in the
performance of any of its obligations under this Lease (and if Landlord is in
breach or default, that Tenant has irrevocably waived its right to require
performance of such obligation).
ARTICLE 18. SECURITY DEPOSIT; ADVANCE RENT PAYMENT:
18.01. PAYMENT: At the time of Lease execution, the Tenant shall deposit with
the Landlord, the Security Deposit, as security for the fulfillment of all of
the obligations of the Tenant under this Lease. The Security Deposit shall not
be assigned, transferred, pledged, hypothecated or otherwise encumbered by the
Tenant. The Landlord shall not be obligated to pay any interest on the Security
Deposit unless required by valid Law, and may commingle the Security Deposit
with any other security deposits made by any other tenants at the Center.
"SECURITY DEPOSIT" shall mean: (i) payment equal to two months of Monthly Rent
at the time of the execution of the Lease and thereafter, last month's prepaid
rent. ("PREPAID RENT").
18.02. REPLENISHMENT/REFUND: In the event the Tenant fails to perform any of its
obligations under this Lease at the time and in the manner provided for in this
Lease, the Landlord may without notice, immediately apply, all or part of the
Security Deposit or Prepaid Rent to compensate the Landlord for all or part of
the damages incurred by the Landlord as a result of such default by the Tenant.
In such event, within ten days after demand by the Landlord, the
LEASE - 27
Tenant shall make such additional deposit of money as may be required to
replenish the Security Deposit (and Prepaid Rent, if applicable) to the
amount(s) set forth in Section 18.01 of this Lease. In the event the Tenant has
fulfilled all of its obligations under this Lease, no later than 30 days after
the Termination Date, the Security Deposit shall be remitted to the Tenant.
18.03. EXCLUSION FROM LIABILITY FOR REFUND: In the event the Landlord sells or
assigns its interest in this Lease, the Landlord shall automatically be released
from all liability for the Security Deposit, upon the delivery or assignment of
the Security Deposit to the purchaser or assignee.
ARTICLE 19. SUBORDINATION:
19.01. AUTOMATIC SUBORDINATION: This Lease is subject and subordinate to all
ground or underlying leases, and all deeds of trust, mortgages and security
agreements which may now or later encumber the Office or the Project, any part
thereof, or interest therein, and all modifications, extensions, renewals,
consolidations and replacements thereof, regardless of the dates of such
instruments. The provisions of the immediately preceding sentence shall be
self-operative and no further instrument of subordination shall be required.
Nevertheless, within 20 days after demand by Landlord, Tenant shall sign,
acknowledge and deliver any instrument of subordination Landlord or its designee
may reasonably require.
19.02. NON-DISTURBANCE AGREEMENTS WITH EXISTING LENDERS: The Landlord shall make
reasonable efforts to obtain within 30 days after the date of full execution of
this Lease, a non-disturbance and attornment agreement between Tenant and the
holders (collectively "LENDER") of any mortgages or deeds of trust encumbering
Landlord's estate, in which the Lenders agree that despite any default by
Landlord in the fulfillment of its obligations under the respective mortgage or
deed of trust loan documents, and any foreclosure of the respective mortgage or
deed of trust or other action or proceeding, judicial or non-judicial, so long
as Tenant performs all of its obligations under this Lease, Tenant's use and
occupancy of the Office shall not be disturbed. In such non-disturbance and
attornment agreement, Tenant shall: (i) agree to attorn to the Lenders and their
successors and assigns if the mortgage or deed of trust is foreclosed or the
Lenders or their successors and assigns otherwise succeed to the estate of
Landlord, and (ii) acknowledge that this Lease is subject and subordinate to the
respective mortgage or deed of trust. Tenant shall pay to Landlord within 15
days after demand, all fees, costs and expenses payable to the Lenders by
Landlord in connection with requests for non-disturbance agreements.
19.03. NON-DISTURBANCE AGREEMENTS WITH SUBSEQUENT LENDERS: With respect to any
deed of trust or mortgage which does not now encumber the Project, the automatic
subordination of this Lease is conditioned on the existence of a written
agreement or undertaking however and wherever expressed, on the part of the
respective Lender, not to disturb Tenant's possession of the Office and use of
the Open Common Areas, so long as the term of this Lease has not expired or
terminated and Tenant is not in Default. Tenant shall attorn to the Lenders and
their successors in interest.
LEASE - 28
19.04. LIMITATIONS AND WAIVERS: Under no circumstances shall a Lender be liable
for or bound by any of the following:
(A) Any right of the Tenant to any offset, defense (except actual and complete
fulfillment of the Tenant's obligations under this Lease), claim, counterclaim,
cross-claim, abatement, deduction, or reduction (collectively "OFFSET") of any
of the Tenant's obligations under this Lease including the Tenant's obligation
to pay any Rent, arising out of any breach of the obligations of the Landlord
under the Lease or any applicable law prior to the date the Lender acquired
title to the Project.
(B) Any payment of Rent made to or for the account of the Landlord which is made
more than 30 days before the date the payment of Rent was due, which relate to a
period of time after the date the Lender acquires title to the Project.
(C) Any obligation to pay to Tenant any money owed to the Tenant by any Landlord
other than the Lender, including without limitation intended, any obligation to
pay Tenant any money for any overcharges collected by any prior Landlord.
(D) Any modification or amendment of this Lease or any waiver of any provision
of this Lease, unless the Lender expressly consented in writing.
(E) Any agreed-to or negotiated surrender, cancellation or termination of the
Lease, in whole or in part, unless either (i) effected solely by the Tenant
pursuant to an express provision of this Lease; or (ii) the Lender expressly
consented in writing.
(F) Any obligation on the part of the Landlord to construct or install any
Improvements or make any alterations.
ARTICLE 20. LANDLORD DEFAULTS/NOTICES TO LENDERS:
If the Project or any part thereof, is encumbered by any deed of trust or
mortgage, and the Rent or this Lease is assigned to the Lender, Tenant shall not
terminate this Lease on account of any Default by Landlord, unless and until:
(i) Tenant gives the Lender written notice of specifying Default; (ii) a
reasonable time elapses after the expiration of the Landlord's grace period, for
the cure of the breach giving rise to such default by such Lender; and (iii)
such default is not cured within such time.
ARTICLE 21. ACCESS BY LANDLORD AND OTHERS:
21.01. Landlord shall have the right, but not the obligation, to enter and
remain in the Office, on five days prior notice, at all reasonable hours and
from time to time: (i) to permit Landlord and its designees to inspect the
Office; (ii) to perform maintenance, make repairs, restorations or Improvements
to the Office or the Project; (iii) to comply with Law; (iv) to show the Office
for sale, lease or financing purposes; (v) upon the request of any trustee,
receiver, sheriff, marshal, or court officer purporting to be entitled to take
possession of the Office or any of its contents;
LEASE - 29
and (vi) upon the request of any fireman, police officer, building inspector,
health inspector or other Government official, purporting to require access for
any legitimate purpose. Despite the preceding sentence, Landlord shall have the
right to enter the Office at any time, without any notice, in the case of any
actual or apparent emergency of any nature whatsoever. In the event Tenant is
not present in the Office when there is an actual or apparent emergency,
Landlord is entitled to use a master key and/or break and enter into the Office
without liability to Tenant. To ensure Landlord will be able to enter the
Office, Tenant shall not change or install any lock or alarm without
contemporaneously furnishing Landlord or its designee with the keys,
combinations and other devices required to open such lock and disarm such alarm.
21.02. Landlord's right to enter and remain in the Office, and/or to perform any
maintenance, repairs, replacements or work, shall not be deemed to: (i) impose
any obligation on Landlord to do so; (ii) subject Landlord to any liability to
Tenant or any third person based on Landlord's failure or refusal to do so; and
(iii) relieve or release Tenant from any obligation to indemnify Landlord as
provided for in this Lease.
ARTICLE 22. BANKRUPTCY:
22.01. In the event (i) any action or proceeding is commenced by or against
Tenant or any Guarantor, pursuant to any bankruptcy, insolvency, reorganization
or arrangement Law; or (ii) any action or proceeding is commenced for the
appointment of a receiver, trustee or similar official of all or part of the
property of Tenant, or any Guarantor; or (iii) Tenant or any Guarantor makes an
assignment for the benefit of creditors (collectively "BANKRUPTCY"); and
(A) In the event the Bankruptcy is an action or proceeding commenced by a third
party, without the consent or connivance of Tenant, and the Bankruptcy is not
terminated, discharged or dismissed within 30 days after commencement; Landlord
may elect to terminate this Lease; or
(B) In the event the Bankruptcy is an action or proceeding commenced by Tenant,
or a third party with the consent or connivance of Tenant, Landlord may elect to
terminate this Lease.
22.02. In the event Tenant or any Guarantor is insolvent as defined by any Law;
or any Guarantor terminates, rejects or otherwise disclaims liability under any
guaranty of this Lease; then in any of the preceding circumstances the Landlord
may elect to terminate this Lease.
22.03. In the event the provisions of this Article of the Lease contravene the
Bankruptcy Law, the following provisions shall automatically become effective:
(A) Any and all moneys and other consideration payable or otherwise to be
delivered in connection with any Lease Transfer shall be paid or delivered to
Landlord and shall belong solely to Landlord, and not constitute property of (i)
Tenant or any Guarantor; or (ii) the estate of Tenant or any Guarantor within
the meaning of the Bankruptcy Law. In the event any such moneys or other
consideration cannot be paid or delivered to Landlord immediately, it shall be
held in trust for the benefit of Landlord, and be paid or delivered to Landlord
as soon as possible.
LEASE - 30
(B) Any person or entity to whom this Lease is assigned shall automatically be
deemed to have assumed the obligations of Tenant under this Lease, which accrue
under this Lease on and after the date of such assignment, and no act on the
part of Tenant, its assignee or any other person or entity shall operate to
relieve the assignee of such obligations.
22.04. All Rent shall constitute rent for the purposes of Bankruptcy Code
Section 502(b) (6), 11 U.S.C. Section 502 (b) (6).
ARTICLE 23. TENANT'S DEFAULT:
23.01. The following events or circumstances shall constitute a default
("DEFAULT") in the fulfillment of Tenant's obligations under this Lease:
(A) Tenant shall: (i) breach its obligation to pay any Rent and such breach
shall continue for ten days after the date Landlord gives Tenant notice payment
is past due; or (ii) breach its obligation to maintain any insurance required by
this Lease; or (iii) submit any report or other written statement to Landlord or
its designee, which shall contain a wilfully false statement; or (iv) abandon
the Office or fail to keep the Office open for business, fully stocked, fixtured
and staffed for a period in excess of ten succeeding days for any reason except
Force Majeure (as such term is defined in Section [37] of this Lease), or
ongoing diligently pursued alterations authorized by this Lease or consented to
by Landlord; or (v) fail to perform any of its other obligations under this
Lease and such breach shall continue for 30 days after the date Landlord gives
Tenant notice performance is past due; provided, however, that if the breach is
not reasonably susceptible of being cured within such 30 day period, Tenant
gives Landlord notice specifying the Force Majeure within such 30 day period,
and Tenant promptly commences the cure and diligently prosecutes the cure to
completion, then such 30 day period shall automatically be extended for such
period of time as may reasonably be required to cure the breach; provided,
however, that in all circumstances the 30 day period shall not be extended to
last longer than 90 days.
(C) If any person or entity shall attempt to levy or execute upon this Lease or
the Office or any property in the Office, under any writ, order, judgment or
other process of Law; or
(D) If any Bankruptcy occurs and Landlord's right to terminate this Lease as a
result of such Bankruptcy has accrued.
23.02. If any Default occurs, then Landlord may either (i) give Tenant ten days
notice to quit and surrender the Office, as a result of the Default, and upon
the expiration of such ten day period, (a) Tenant's rights under this Lease
shall expire, and (b) Tenant shall immediately quit and surrender the Office to
Landlord; or (ii) give Tenant ten days notice of the Default and Landlord's
intention to terminate this Lease, and upon the expiration of such ten day
period, (a) Tenant
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shall immediately quit and surrender the Office to Landlord, and (g) this Lease
shall be terminated.
23.03. Despite the termination of this Lease and/or the expiration of Tenant's
rights under this Lease, Tenant shall remain liable for the fulfillment of all
of its obligations under this Lease, including without limitation intended, its
obligations to pay Rent; subject, however, to reduction to a lesser sum of money
as provided in Article 24 of this Lease.
ARTICLE 24. RIGHT TO REENTER AND RE-LET:
24.01. In the event Tenant is obligated to quit and surrender the Office to
Landlord pursuant to Article 23 of this Lease, or this Lease is terminated,
Landlord shall have the right to re-enter and repossess the Office, and remove
all persons and property in the Office, by any summary or plenary action or
proceeding, or by force, without any liability whatsoever. Landlord may at the
expense of Tenant, Office, sell or discard any property in the Office, without
any liability to Tenant whatsoever. The word "re-enter" shall be broadly
construed and shall not have its technical legal meaning. Tenant waives any
right it may have at Law, to notice of Landlord's intention to enter. No
re-entry or repossession of the Office by Landlord, shall operate to terminate
the Lease, unless Landlord gives explicit notice of termination (which notice
may be given before or after re-entry and repossession); or constitute an
acceptance by Landlord of a surrender, unless Landlord gives explicit notice of
its acceptance.
24.02. Despite re-entry and repossession by Landlord after a Default, Tenant
shall remain liable for the performance of all of its obligations under this
Lease, including without limitation intended, its obligations to pay Rent. All
costs and expenses incurred by Landlord in re-entering, repossessing and
re-letting the Office, and moving, storing, selling or discarding the property
in the Office, including without limitation intended, Litigation Expenses;
moving expenses; brokerage, warehouse and sales fees; and the costs of
refurbishing the Office and making it ready for occupancy by another tenant;
shall be paid to Landlord by Tenant within ten days after demand by Landlord.
24.03. In the event Landlord re-enters and repossesses the Office without
terminating this Lease, Landlord may nevertheless make such alterations and
refurbish the Office to the extent that Landlord deems appropriate, and re-let
the Office or any part of the Office, on such terms as Landlord may deem
appropriate. The rents received by Landlord from any such re-letting (without
termination of this Lease) shall be applied: first, to the payment of all Rent
due, which represents costs and expenses incurred by Landlord; second, to
payment of all other Rent due and unpaid; and third, any rent remaining shall be
held by Landlord to be applied to the Rent which becomes due in the future under
this Lease. If the rents from such re-letting are insufficient to pay the Rent
due under this Lease as the Rent becomes due, Tenant shall pay the deficiency to
Landlord or its designee, on or before the first day of each calendar month for
which there will be a deficiency.
24.04. Landlord shall have no obligation to re-enter or re-let the Office, or
otherwise mitigate damages unless Tenant and all other occupants have vacated
the Office and Tenant has given
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Landlord notice specifying Tenant has permanently abandoned the Office.
Landlord's obligation to mitigate damages shall be qualified as follows:
(A) Landlord shall not be obligated to make any effort to mitigate damages
except to the extent the effort would be commercially reasonable for a landlord
in circumstances similar to the Landlord;
(B) Landlord shall have no obligation to pay for any renovations, repairs or
alterations requested by any prospective tenant;
(C) Landlord shall have no obligation to lease the Office at less than fair
market rent and additional rent;
(D) Landlord shall have no obligation to lease the Office if Landlord has other
suitable space for lease or Landlord expects the Landlord will have other
suitable space for lease in the following three months;
(E) Landlord shall have no obligation to lease the Office if the prospective
tenant or the lease acceptable to the proposed tenant is not reasonably
satisfactory to the landlord in every material respect, including the business
background and creditworthiness of the tenant, the compatibility of the
replacement tenant and its use with the other tenants in the Project and the
other tenants' uses and lease provisions;
(F) Landlord shall have no obligation to seek a replacement tenant by any means
the landlord does not generally employ for leasing vacant space in the Project.
24.05. In the event this Lease is terminated by Landlord after a Default, Tenant
shall within ten days after demand by Landlord, pay to Landlord as liquidated
damages, all the Rent required to be paid pursuant to Article [8] of this Lease,
from the Termination Date through the latest date the term of this Lease would
have otherwise expired, less any amount of money which Tenant proves is the fair
market rent and additional rent for the Office in the condition the Tenant left
it in, with the resulting figure discounted to present value at the rate of
interest payable on unpaid money judgments in the State in which the Project is
located. The amount of Rent due during each Lease Year or partial Lease Year
after the Termination Date, shall be equal to (or prorated based upon) the mean
average Rent for the preceding three Lease Years (or such lesser number of Lease
Years [or calendar months] which may have run during the term of this Lease).
ARTICLE 25. WAIVER BY TENANT:
25.01. Tenant hereby waives any right it may have at Law to redeem this Lease or
its interest in this Lease after a Default.
25.02. Tenant hereby waives any homestead rights or exemptions it may have,
which might exempt any property of Tenant from a levy or execution, to satisfy
any outstanding obligations of Tenant under this Lease.
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ARTICLE 26. NO WAIVER BY LANDLORD:
26.01. No act or omission on the part of Landlord shall constitute a waiver of
any right of Landlord or relieve Tenant from the performance of any obligation
under this Lease, unless Landlord expressly grants a waiver in a writing signed
by Landlord. No waiver of any right or obligation on any one or more occasions
shall constitute a waiver with respect to any other occasions.
26.02. No acceptance of money by Landlord in an amount less than the amount of
Rent due shall constitute an acceptance of such lesser amount in full payment.
It shall merely constitute a payment on account of the amount of Rent due, not
an accord and satisfaction, regardless of any endorsement or limitation on any
check or other document. Acceptance of payment of Rent on account, shall be
without prejudice to the exercise of any other rights or remedies Landlord may
have.
ARTICLE 27. ATTORNMENT:
Unless and until Landlord, or the holder of a mortgage or deed of trust or the
landlord under any ground or underlying lease encumbering the Office or Project,
shall elect to terminate this Lease, this Lease shall remain in full force and
effect, despite the fact that: (i) any mortgage or deed of trust encumbering the
Office or Project is foreclosed or the Office or Project or any part of the
Project is sold under a power of sale; or (ii) any deed is given in lieu of the
foreclosure of any such mortgage or deed of trust; or (iii) any ground or
underlying lease to which this Lease is subordinated, is terminated; or (iv) any
action or proceeding is commenced by Landlord, or any holder of a deed of trust
or mortgage or the landlord under any ground or other underlying lease
encumbering the Office or Project. Tenant shall attorn to Landlord, or its
successor (including without limitation intended, any purchaser of the Office or
Project at foreclosure), or any holder of any mortgage or deed of trust, or any
landlord under any ground or other underlying lease encumbering the Office or
Project.
ARTICLE 28. RULES AND REGULATIONS:
Tenant shall comply with all reasonable rules and regulations ("RULES AND
REGULATIONS") adopted, amended and repealed, by Landlord, at any time and from
time to time, for the use, operation and occupancy of the Project, including
without limitation intended, the Open Common Area and the Office. A copy of the
Rules and Regulations in effect on the date this Lease was delivered to Tenant
is annexed as EXHIBIT "G" to this Lease. Any act or omission by Tenant, in
breach of the Rules and Regulations shall constitute a breach by Tenant in the
performance of its obligations under this Lease. Landlord shall give Tenant
notice of the adoption of any new Rules and Regulations, or the modification or
repeal of any existing Rules and Regulations, and any such adoption,
modification or repeal shall be binding upon Tenant as if incorporated in this
Lease by reference, ten days after notice thereof is given to Tenant.
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ARTICLE 29. CONTROL OF COMMON AREA:
The Common Area shall at all times be subject to the exclusive control and
management of Landlord, including without limitation intended, the power to
limit, control and direct pedestrian and vehicular traffic and parking. Landlord
shall have the right to use or limit the use of the Common Area for any purpose
whatsoever, that Landlord deems appropriate for the Project, including without
limitation intended, any Improvements, shows, displays, demonstrations,
promotions, and kiosks; and to prevent the dedication of any part of the Project
or the accrual of any prescriptive or other rights in favor of the public or any
other persons. Landlord shall also have the right to remove and/or exclude from
the Common Area, any person who fails to comply with any Rule or Regulation, or
uses or occupies the Common Area for any purpose not specifically authorized by
this Lease or the Rules and Regulations or by Landlord in a writing signed by
Landlord; provided, however, that if Tenant is an entity, Tenant shall not be
removed or excluded from the Common Area (but any offending principal, employee,
agent, contractor or supplier may be excluded) unless Tenant's breach of the
Rules and Regulations continues after the expiration of any applicable grace
period.
ARTICLE 30. CONTROL OF PROJECT:
30.01. Landlord shall have the right at any time, and from time to time, to (i)
make any additional Improvements, in or about the Project or any part thereof;
(ii) to alter, delete and enlarge any existing Improvements; (iii) to enlarge or
decrease the size of the Project by adding additional land and/or Improvements,
or subdividing, selling or otherwise reducing the land and/or Improvements
comprising the Project; provided, however that in no event shall any such
activity unreasonably disrupt the business of Tenant in the Office, or
unreasonably impair access to and from the Office. No site plan furnished to
Tenant shall in any manner limit the rights of Landlord under this Article.
Without limiting the rights of the Landlord under this Section 30.01, Tenant
acknowledges that Landlord shall have the right to construct or permit the
construction of an additional office building with a parking garage on the
Northeasterly portion of the Project.
30.02. Despite the preceding Section 30.01, if Landlord is engaged in any
necessary repairs, replacements, or any expansion or renovation of the Project
or any substantial portion of the Project, then Landlord shall not be liable for
and Tenant shall have no rights arising from any temporary obstruction of access
to or from the Office, or diminution of Tenant's ability to use the Office,
unless the obstruction or diminution could have readily been avoided without
incurring any unusual or extraordinary expense, which extraordinary expense
shall include without limitation intended, the payment of overtime or other
premium compensation.
30.03. If the operation of Tenant's authorized business is disrupted by Landlord
repairs, replacements, expansion or renovation, to such a degree that operation
of Tenant's business is not feasible, and such disruption continues for 48
consecutive hours or longer after Tenant gives Landlord notice of such
interference and Tenant's cessation of business as a result; then
LEASE - 35
the Monthly Rent shall xxxxx for the lesser of the following periods of time:
(i) the period of such disruption following the giving of such notice; or (ii)
the period of time Tenant ceases its authorized business as a result of such
disruption.
ARTICLE 31. SIGNS:
31.01. SIGNS WITH LANDLORD APPROVAL: Prior to the Commencement Date, Tenant
shall install, and throughout the term of this Lease maintain, a sign on the
front door of the Office or immediately adjacent to the front door, in
accordance with the requirements specified in EXHIBIT "H" of this Lease. Except
as otherwise provided in this Section 31.01, without the prior consent of the
Landlord, Tenant shall not install or permit the installation or maintenance of
any permanent or temporary sign, price, billboard, advertisement, circular,
lettering, placard, poster, pennant, flag, awning, name, insignia, trademark,
logo, decoration, banner, descriptive or similar item (collectively "SIGN"),
which is visible from the exterior of the Office. Any Sign installed or
maintained contrary to the provisions of this Section 31.01, may be removed by
Landlord without notice and without any liability.
32.02. SIGNS INSTALLED BY LANDLORD APPROVAL: Landlord shall insert Tenant's name
in: (i) the directory located on the first floor lobby of the building in which
the Office is located; and (ii) if the Office is located above the first floor,
in the directory located in the immediate vicinity of the elevators on the
floor(s) on which the Office is located.
ARTICLE 32. INDEMNIFICATION
32.01. INDEMNIFICATION BY TENANT: Tenant shall indemnify and hold Landlord,
Landlord's predecessors in interest, all persons and entities designated by
Landlord who have any interest in the Project, and all persons acting on their
behalf, harmless, from and against any and all liabilities, costs, damages and
expenses (including without limitation intended, attorneys' fees, disbursements,
and amounts paid in settlement of claims), (collectively "CLAIMS") incurred as a
result of, or in connection with the use, operation or occupancy of the Office
or the Project by Tenant, or any person or entity permitted in the Office by
Tenant (including without limitation intended, any act or omission by Tenant or
any person or entity permitted in the Office by Tenant, or in the Project at the
request of, or on account of the business of Tenant); except for on a
comparative basis for any Claims arising out of the negligence or other tortious
conduct of Landlord, its employees, agents, contractors and suppliers; or any
breach of Landlord's obligations under this Lease; or any violation of Law by
Landlord, its employees, agents, contractors and suppliers.
32.02. INDEMNIFICATION BY LANDLORD: Landlord shall indemnify and hold Tenant,
Tenant's predecessors in interest, all persons and entities occupying the Office
in accordance with this Lease, and all persons acting on their behalf, harmless,
from and against any and all Claims, incurred as a result of, or in connection
with the negligence or other tortious conduct of Landlord, its employees,
agents, contractors and suppliers; or any breach of Landlord's obligations under
this Lease; or any violation of Law by Landlord, its employees, agents,
LEASE - 36
contractors and suppliers; except on a comparative basis for any Claims arising
out of the negligence or other tortious conduct of Tenant, its employees,
agents, contractors and suppliers; or any breach of Tenant's obligations under
this Lease; or any violation of Law by Tenant, its employees, agents,
contractors and suppliers.
ARTICLE 33. SURRENDER OF THE OFFICE:
33.01. On or prior to the Termination Date, Tenant shall surrender the Office,
broom clean, in good condition and repair (except for reasonable wear and tear,
and damage caused by Casualty covered or required to be covered by the Project's
Insurance) and deliver all keys, combinations and other lock opening devices for
all locks and alarms in and about the Office, to Landlord. Within five days
after the Termination Date, Tenant shall remove all property of Tenant,
including without limitation intended, all trade fixtures and furnishings, and
repair all damage which may result from the removal of such property. Despite
the provisions of the immediately preceding sentence Tenant shall not remove:
(i) any property of Tenant, in the event Landlord has given Tenant notice of any
default by Tenant, in the performance of any of Its obligations under this
Lease, and such notice remains outstanding; and (ii) any property of Tenant
which is attached to any wall or floor, in the event Landlord has given Tenant
notice not to remove same. If Tenant made any Improvements or alterations
without Landlord's consent, at the request of Landlord Tenant shall remove the
Improvements or alterations on or before the Termination Date and restore the
Office to the condition which existed before the Improvements or alterations
were made without Landlord's consent.
33.02. In the event Tenant fails to remove any property of Tenant or any person
or entity permitted in the Office by Tenant, within five days after the
Termination Date, then such property shall be deemed abandoned by Tenant, and
may be removed, stored or sold by Landlord without notice or liability to, and
at the sole expense of Tenant.
ARTICLE 34. LIMITATIONS OF LANDLORD'S LIABILITY:
34.01. Landlord shall have no obligation or liability for the fulfillment of any
obligation of the Landlord under this Lease, which accrues prior to or after the
date Landlord is the owner or ground lessee of the real property comprising the
Project.
34.02. Landlord shall have no obligation or liability for the fulfillment of any
obligation of the Landlord under this Lease unless Landlord fails to perform any
of its obligations under this Lease and such breach shall continue for 30 days
after the date Tenant gives Landlord notice specifying Landlord's breach of its
obligations; provided, however, that if the breach is not reasonably susceptible
of being cured within such 30 day period. Landlord gives Tenant notice
specifying the reason(s) for the delay within such 30 day period, and Landlord
promptly commences the cure and diligently prosecutes the cure to completion,
then such 30 day period shall automatically be extended for such period of time
as may reasonably be required to cure the breach; provided, however, that in all
circumstances the 30 day period shall not be extended to last longer than 90
days.
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34.03. In the event Landlord breaches its obligations under this Lease and fails
to cure the breach prior to the expiration of the applicable grace period, or
Landlord is otherwise liable to Tenant as a result of any act or omission by
Landlord or any person or entity acting on behalf of Landlord, Tenant shall look
solely to the ownership or leasehold interest of Landlord in the Project, for
the recovery of any damages incurred by Tenant. Tenant shall not seek to
restrain Landlord, or levy, execute or otherwise seek to enforce any order,
judgment or claim against any other assets of Landlord; nor against Landlord's
principals, agents, or employees or any of their assets.
ARTICLE 35. DISPUTES BY TENANT:
In the event Tenant disputes the amount or propriety of any demand by Landlord,
for the payment of any Rent, Tenant shall immediately pay the amount demanded by
Landlord, and simultaneously with payment, give Landlord specific notice of the
nature of the Rent and amount disputed by Tenant.
ARTICLE 36. SECURITY INTEREST/FINANCING STATEMENTS: INTENTIONALLY DELETED
ARTICLE 37. FORCE MAJEURE:
In the event that Landlord or Tenant is delayed or prevented from the
performance of any of their respective obligations under this Lease, because of
any strike, lockout, labor trouble, inability to procure materials, failure of
power, Law, riot, insurrection, war, act of God, or similar cause wholly outside
the control of, and brought about by a force or persons or entities wholly
unrelated to the party delayed or unable to perform (collectively "FORCE
MAJEURE"); the performance of such act shall be excused for the period of any
such delay; provided notice specifying the Force Majeure is promptly given to
the other party under this Lease and if such notice is not given promptly, then
delay shall be excused only to the extent delay occurs after notice specifying
Force Majeure is given to the other party under this Lease. Despite the
provisions of the immediately preceding sentence to the contrary, the provisions
of this Article shall not excuse Tenant from its obligations to pay all Rent.
ARTICLE 38. HOLDING OVER:
In the event Tenant holds possession of the Office, (i) after the Termination
Date or after the date Tenant's right to possession of the Office ends, and (ii)
without the written consent of Landlord; then Landlord may elect by notice, to
either:
38.01. Make Tenant a tenant from month-to-month, at double the Minimum Rent
provided for in this Lease, but subject to all other obligations of Tenant under
this Lease, and all other provisions of this Lease, prorated or adjusted to a
month-to-month tenancy; or
38.02. Treat Tenant as a trespasser, and recover possession of the Office from
Tenant by any
LEASE - 38
means provided for in this Lease or by Law; including seeking recovery of
damages incurred by the Landlord as a result of Tenant's failure or refusal to
surrender possession (including any damages incurred by Landlord as a result of
Landlord's failure to timely deliver possession to any other tenant). In the
event Landlord accepts payment of Monthly Rent for any period after the
Termination Date or Tenant's right to possession of the Office ends, then
Landlord shall be deemed to have made the election provided for in Section 38.01
of this Lease.
ARTICLE 39. TITLE EXCEPTIONS:
This Lease is subject to all recorded and unrecorded mortgages, deeds of trust,
security agreements, ground and other underlying leases, easements,
restrictions, covenants and Law, now in existence or later created.
ARTICLE 40. BROKERS:
The parties to this Lease ("WARRANTOR") represent and warrant to each other
("WARRANTEE"), that no broker, finder or other person is entitled to any money
or other consideration (including without limitation intended, broker's or
finder's fee or commission), on account of the acts of the Warrantor or any
person acting on its behalf, and the execution or delivery of this Lease, or the
leasing of the Office. Warrantor shall indemnify and hold the Warrantee
harmless, from and against any and all liabilities, costs, damages and expenses
(including without limitation intended, Litigation Expenses), incurred by the
Warrantee, as a result of any claim made by any person or entity, which is
inconsistent with the representation and warranty made by the Warrantor in the
first sentence in this Article.
ARTICLE 41. QUIET ENJOYMENT:
Provided and for so long as Tenant shall fulfill all of its obligations under
this Lease, Tenant shall quietly enjoy the Office without molestation by
Landlord or any person or entity claiming the Office in compliance with the Law,
subject to the provisions of this Lease and all mortgages, deeds of trust, other
security agreements, ground and other underlying leases to which this Lease may
be subordinate.
ARTICLE 42. NO PARTNERSHIP/JOINT VENTURE:
This Lease and the relationship of Landlord and Tenant shall not create a
partnership or joint venture.
ARTICLE 43. REMEDIES CUMULATIVE:
Each remedy and right of Landlord in this Lease shall be cumulative and shall be
in addition to all rights and remedies granted in this Lease or by Law. The
exercise of any one or more of such remedies as a result of a default shall not
preclude the exercise of any other remedies as a result of such default.
LEASE - 39
ARTICLE 44. NOTICES:
Any notice, request, demand, approval, consent or other communication
(collectively "COMMUNICATION") concerning this Lease or any transaction or
matter arising in connection with this Lease, including any contemplated by any
of the exhibits to this Lease, shall be in writing and given to the party to
which it is directed, at the address specified in the first paragraph of this
Lease. Such address may be changed by a Communication given in accordance with
the provisions of this Article which specifies that the Communication gives
notice of one or more changed addresses for the purposes of giving notice to a
party pursuant to this Lease. Any Communication shall be (i) delivered
personally and a signed receipt obtained: or (ii) sent by certified mail, return
receipt requested; or (iii) sent by Federal Express or similar nationally
recognized courier service which promises next business day delivery. Any
Communication shall be deemed given on (i) the date personally delivered to the
other party and a signed receipt obtained; or (ii) three days after deposit,
postage prepaid, in any United States Postal Service branch or official
depository; or (iii) the next business day after delivery to and acceptance by
Federal Express or similar nationally recognized overnight courier service
promising next business day delivery; whichever event shall occur earliest. Any
Communication given by any management agent of the Project or attorney for
Landlord shall be deemed a Communication given by Landlord.
ARTICLE 45. ATTORNEYS' FEES:
In the event of a default by a party under this Lease, any Litigation Expenses
incurred by the party entitled to performance under this Lease, in the exercise
or enforcement of any of the rights or remedies of such party under this Lease
or the Law, shall be paid by the party in default to the party entitled to
performance (and if payable to Landlord shall be paid as Rent), within ten days
after demand by the party entitled to payment.
ARTICLE 46. LANDLORD'S RIGHT TO PERFORM TENANT'S OBLIGATIONS:
In the event that (i) there is a Default, or (ii) Tenant breaches any of its
obligations under this Lease and there is an actual or apparent emergency; then
in either case. Landlord shall have the right at the sole cost and expense of
Tenant, to elect to perform any such obligation, without notice to Tenant in the
case of any actual or apparent emergency, and in the absence of any actual or
apparent emergency without any notice except any notice of breach or potential
default required by this Lease.
ARTICLE 47: RECORDING:
Tenant shall not record this Lease. At the request of Landlord or Tenant, the
parties shall at the sole cost and expense of the party making the request,
execute, acknowledge and deliver a memorandum of this Lease, in form suitable
for recording.
ARTICLE 48. DISCRETION:
LEASE - 40
Whenever the consent, approval or permission of a party under this Lease is
sought from the other party under this Lease, or the satisfaction, discretion,
or designation of a party under this Lease is provided for by this Lease, the
party whose consent, approval or permission is sought and the party whose
satisfaction, discretion or designation is provided for, shall not unreasonably
withhold, delay, condition or exercise its consent, approval, permission,
satisfaction, discretion or designation. Landlord shall not be obligated to
perform any act unless this Lease specifically imposes upon Landlord an
obligation to do so by the use of the word "shall."
ARTICLE 49: TIME OF THE ESSENCE:
Time shall be of the essence for the performance of all of the obligations of
Tenant under this Lease.
ARTICLE 50: MISCELLANEOUS:
50.01. SUCCESSORS: The rights and obligations of Landlord and Tenant under this
Lease, shall inure to the benefit of and be binding upon Landlord and Tenant and
all persons and entities who succeed to the respective rights and obligations of
Landlord or Tenant, in accordance with the provisions of this Lease.
50.02. MODIFICATION: This Lease cannot be changed orally. It can only be changed
in writing and the writing must be signed by the party against whom the change
is sought to be enforced.
50.03. ENTIRE AGREEMENT: This Lease is signed by Landlord and Tenant as a final
expression of all the terms of their agreement and as a complete and exclusive
statement of its terms.
50.04. COUNTERPARTS: This Lease may be signed in counterparts with the same
force and effect as if all required signatures were contained in a single
original instrument.
50.05. LANDLORD'S SIGNATURE: Despite the statements, promises, acts or omissions
of any person or entity, this Lease shall not be binding upon Landlord, unless
and until this Lease (or a counterpart) is signed by both Landlord and Tenant.
50.06. CAPTIONS: The captions in this Lease were inserted for the convenience of
reference only. They do not in any manner define, limit or describe the
provisions of this Lease or the intentions of Landlord or Tenant.
50.07. GENDER/SINGULAR/PLURAL: Whenever masculine, feminine, neuter, singular or
plural terms are used in this Lease, they shall be construed to read in whatever
form is appropriate to make this Lease applicable to all persons, entities, acts
and transactions.
50.08. RULE OF CONSTRUCTION NEGATED: In the event it shall be necessary to
construe this Lease, the rule of construction that an instrument should be
construed against the party
LEASE - 41
who prepared the instrument, shall be disregarded.
50.09. PARTIAL INVALIDITY: In the event that a court of competent jurisdiction
declares that one or more provisions of this Lease are invalid or unenforceable,
the remaining provisions of this Lease shall nevertheless remain in full force
and effect. However, in the event that such declaration results in any reduction
of any Rent, Landlord shall have the right to terminate this Lease 30 days after
the date that notice of termination is given by the Landlord.
50.10. EXHIBITS INCORPORATED: The exhibits annexed to this Lease are hereby
incorporated by reference in their entirety with the same force and effect as if
they were set forth in this Lease in their entirety.
50.11. COVENANTS: All of the obligations of Tenant under this Lease shall
constitute material covenants.
50.12. JOINT AND SEVERAL LIABILITY: INTENTIONALLY DELETED
50.13. TENANT'S REVIEW/ATTORNEY: Tenant acknowledges that prior to signing this
Lease, Tenant has been given an adequate opportunity to (i) review this Lease;
and (ii) consult with an attorney.
50.14. OBLIGATIONS SURVIVE: The termination or expiration of this Lease shall
not relieve Tenant from performance of its obligations under this Lease, which
have accrued prior to the Termination Date, or are expressly or impliedly
required to be performed after the Termination Date. Without in any way limiting
the general application of the provisions of the immediately preceding sentence,
the obligations of Tenant under the Article of this Lease captioned
[AINDEMNIFICATION@] shall survive the termination or expiration of this Lease.
ARTICLE 51: RIDER: Intentionally Deleted
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IN WITNESS WHEREOF, Landlord and Tenant have signed this Lease as of the
date first set forth in the first paragraph of this Lease.
TENANT: Witness/Attest:
WESTSOUND BANK AND MORTGAGE
By: /s/ Xxxxx Xxxxxxx
--------------------------------- ----------------------------------------
Mr. Xxxxx Xxxxxxx, President & CEO Signature
Signature
TENANT: Witness/Attest:
WESTSOUND BANK AND MORTGAGE
By:
--------------------------------- ----------------------------------------
Signature Signature
Title:
------------------------------
LANDLORD / MANAGER: Witness/Attest:
PRIMESTAR INVESTMENT CORP.
By:
--------------------------------- ----------------------------------------
Xxxxxx Xxxxxx, President Signature
Signature
By: /s/ Xxxx X. Xxxx
---------------------------------
XXXX X. XXXX, President
J & Y LLC.
LEASE - 43
STATE OF WASHINGTON )
)ss.
COUNTY OF Kitsap )
I, the undersigned, a notary public in and for the State of Washington,
hereby certify that on this 30 day of March, 2005, personally appeared before me
Xxxx X. Xxxx, to me known to be the President of J & Y Investment LLC., the
corporation that executed the foregoing instrument, and acknowledged the said
instrument to be the free and voluntary act and deed of said corporation, for
the uses and purposes therein mentioned, and on oath stated that he/she is
authorized to execute the said instrument and that the seal affixed is the
corporate seal of said corporation.
(NOTARY SEAL) /s/ Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx -------------------------------------
COMMISSION EXPIRES 02-20-08 NOTARY PUBLIC, in and for the
STATE OF WASHINGTON State of Washington
My appointment expires 0-00-00
Xxxxxxxx xx Xxxxxxx, XX
XXXXX XX XXXXXXXXXX )
)ss.
COUNTY OF Kitsap )
I, the undersigned, a notary public in and for the State of Washington,
hereby certify that on this 30 day of March, 2005, personally appeared before me
Xxxxx Xxxxxxx, to me known to be the President of WESTSOUND BANK AND MORTGAGE,
the corporation that executed the foregoing instrument, and acknowledged the
said instrument to be the free and voluntary act and deed of said corporation,
for the uses and purposes therein mentioned, and on oath stated that he/she is
authorized to execute the said instrument and that the seal affixed is the
corporate seal of said corporation.
(NOTARY SEAL) /s/ Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx -------------------------------------
COMMISSION EXPIRES 02-20-08 NOTARY PUBLIC, in and for the
STATE OF WASHINGTON State of Washington
My appointment expires 0-00-00
Xxxxxxxx xx Xxxxxxx, XX
LEASE - 44
STATE OF __________ )
STATE OF __________ )ss.
COUNTY OF __________ )
I, the undersigned, a notary public in and for the State of
_______________, hereby certify that on this ___ day of ____________, 200__,
personally appeared before me _________________________, to me known, and on
oath stated that he/she is the __________________________ of WESTSOUND BANK AND
MORTGAGE, and authorized signatory executed the foregoing instrument, and he/she
acknowledged the said instrument to be the free and voluntary act and deed of
said Corporation, for the uses and purposes therein mentioned, and on oath
stated that he/she is authorized to execute the said instrument on behalf of the
Corporation.
[affix seal] _________________________________
NOTARY PUBLIC, in and for the
State of ____________________
My appointment/commission expires
_______________
[WA - Residing at _______________]
LEASE - 45
EXHIBIT LIST
A Legal Description
B Site Plan
C Floor Plan
D Confirmation Agreement
E Landlord and Tenant Improvements
F Guaranty - Intentionally deleted
G Rules and Regulations
H Sign Criteria
I Rider - Intentionally Deleted
LEASE - 46
EXHIBIT "A"
LEGAL DESCRIPTION
Xxx 0 xx Xxxx Xxxxxx Xxxxx Xxxx Xx. 000000, recorded under recording No.
8912140335, records of King County, Washington, being portion of King County
Short Plat No: 179058, recorded under recording number 7911200818, and as
corrected by affidavit under recording number 0000000000, being a subdivision of
a portion of Xxxxxx 00, 00, & 00 Xxxxx Xxxx in Section 00, Xxxxxxxx 00 Xxxxx,
Xxxxx 0 Xxxx, X.X. in Xxxx County, Washington, according to the Plat thereof
recorded in Volume 41 of Plats, Page 30, in King County, Washington.
Property Tax Account Number: 797820-0535-03
LEASE - 00
XXXXXXX XXX XXXXXX
XXXXXX XXXXXXXX
0000 XXXXX 320(TM) STREET
FEDERAL WAY, WA 98003
S 320th STREET
EXHIBIT "B"
(SITE PLAN)
EXHIBIT 'C'
March 20, 2005
Suite 000
XXXXXXX XXX CENTER
OFFICE LEASE AGREEMENT
Net Area = 2.966 SF
N.R.A. = 3.420 SF
N.R.A. includes common area load factor of 15.3%
FIRST FLOOR
Area based on Owner provided
Cod Drawings, as-built dimensions
and 1996 BOMA Standards.
XXXXXXX & ASSOCIATES
(FIRST FLOOR)
EXHIBIT "D"
CONFIRMATION AGREEMENT
Confirmation Agreement made as of the 30th day of MARCH, 2005, between Primestar
with an address at ______________________________________ (the "LANDLORD"), and
WSB with an address at 000 Xxxxxxx Xxx, Xxxxxxxxx, XX (the "TENANT"). Landlord
and Tenant agree as follows:
1. DEFINITIONS: all capitalized terms used in this agreement shall have the
meaning set forth in the lease (the "LEASE") dated as of 3/30, 2005, between the
Landlord, as landlord, and the Tenant, as tenant.
2. CONFIRMATION OF COMMENCEMENT DATE: The Commencement Date of the Lease is
hereby established as: 3/30, 2005.
3. CONFIRMATION OF TERMINATION DATE: The Termination Date of the Lease is
hereby established as: 2/28, 2010, subject to earlier termination in accordance
with the provisions of the Lease.
4. CONFIRMATION OF POSSESSION: The Tenant has accepted possession of the
premises demised by the Lease pursuant to the provisions of the Lease.
5. CONFIRMATION OF LANDLORD IMPROVEMENTS: The Landlord has properly
completed all Landlord Improvements.
6. CONFIRMATION OF LEASE:
(A) The Lease has not been modified, amended or otherwise
changed, except as follows:
(B) The Lease is in full force and effect.
(C) The Tenant's obligations to pay Rent commenced as of 3/30,
2005.
(D) The Tenant has no right to any offsets or credits against the
payment of Rent.
(E) No security deposit has been made in excess of the amount of
the security deposit, if any, provided for in the Lease.
(F) The Landlord has no obligations except those described in the
Lease.
(G) The Landlord has fulfilled all of its obligations under the
Lease which were
LEASE - 48
required to be performed on or prior to the date of this
agreement.
7. BINDING EFFECT: This agreement shall be binding upon and inure to the
benefit of the respective successors and assigns of the Landlord and the Tenant.
IN WITNESS WHEREOF, the Landlord and the Tenant have signed this
confirmation agreement, as of the date set forth in the first paragraph of this
agreement.
LANDLORD: TENANT:
By: By:
--------------------------------- ------------------------------------
Signature Signature
Title: PRESIDENT Title: PRESIDENT
EXHIBIT "E" - LANDLORD
AND TENANT IMPROVEMENTS
EXHIBIT "E"
LANDLORD AND TENANT IMPROVEMENTS
Landlord and Tenant agree that:
1. DEFINITIONS: All capitalized terms used in this exhibit which are defined in
the lease to which this exhibit is attached, shall have the meanings set forth
in the Lease.
2. PLANS & SPECIFICATIONS: INTENTIONALLY DELETED
3. CONSTRUCTION:
3.01. Tenant, at its sole cost and expense, shall construct Office
substantially in accordance with a construction drawings to be prepared by
Tenant's architect and approved by the City of Federal Way and Landlord and
further Tenant agrees it is leasing the full Office Area that comprises the
Project on "as is" basis without any further improvements to the Office Area or
the Project by Landlord.
3.02. Tenant, at its sole cost and expense, shall fabricate and install the
Exterior Sign at the designated location with the appropriate approval by the
City of Federal Way and Landlord.
4. EXCLUSIONS:
4.01. Landlord shall not provide any furniture, fixtures and equipment
including any movable partitions or other tenant improvements.
Initials: Initials:
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EXHIBIT "E" - LANDLORD
AND TENANT IMPROVEMENTS
EXHIBIT "F"
GUARANTY OF LEASE / INTENTIONALLY DELETED
EXHIBIT "F"
GUARANTY OF LEASE
51
EXHIBIT "G"
RULES AND REGULATIONS
The following rules and regulations constitute the Rules and
Regulations for the shopping Project known as the [Federal Way Center]. Each of
the capitalized terms used in these Rules and Regulations shall have the
definition set forth in the printed form of lease currently used by Landlord at
the Project.
1. Tenant shall not commit or permit any action or thing which may
disturb the quiet enjoyment of any other tenant in the Project, or any person
within 1,000 feet from the boundary of the Project.
2. Tenant shall not sell, distribute, or display or permit the sale,
distribution, or display of any alcoholic or intoxicating substances or liquids
whatsoever, or any other substance or liquid which may create a hazard or may be
annoying to other persons, or tenants, in or about the Project.
3. Tenant shall not use or permit the use of any advertising or
promotional media or devices which may create a hazard or may be annoying to
other persons or tenants in or about the Project, including without limitation
intended, handbills, flashing lights, searchlights, loudspeakers, sound
amplifiers, or any other audio or video device heard or seen outside the Office.
4. Tenant shall not use any portion of the Project outside of the
Office for the promotion or conduct of its business, including without
limitation intended, for the solicitation of business, advertising, display or
sales purposes. The prohibitions contained in the immediately preceding sentence
shall include without limitation intended, the distribution of handbills or
bumper stickers on or to motor vehicles in or about the Common Area.
5. Without the Landlord's prior approval of the dates, times and
means, Tenant, its contractors and suppliers, shall not: (i) move Tenant in or
out of the Office or in or out of the Project; nor (ii) move more than 500
pounds of personal property in the aggregate, in or out of the Office or in or
out of the Project during any single day .. Landlord shall have the right
to prohibit any move between 8:00 AM and 5:30 PM or the then current business
hours of the Project. Tenant shall not move in or out of the Office or in or out
of the Project, nor permit any of its contractors or suppliers to move in or out
of the Office or in or out of the Project, any fixtures, trade fixtures,
furniture or equipment, using any passenger elevators without the prior approval
of the Landlord.
6. Landlord may from time to time and at any time, designate an area
("EMPLOYEE PARKING AREA") which shall be used for parking by Tenant and any
employees of Tenant. The Employee Parking Area may or may not be within the
Project. In such event,
EXHIBIT "G"
RULES AND REGULATIONS
1
Tenant shall not park or permit any of its employees to park any vehicles on any
other portion (or any portion) of the Common Area. Tenant shall within five days
after demand by Landlord, furnish Landlord with the colors, makes, models and
license plates of all vehicles used by Tenant and its employees. In the event
Landlord designates an Employee Parking Area, and Tenant or an employee of
Tenant parks a vehicle in Common Area which is outside the Employee Parking
Area, Landlord may elect to tow and Office such vehicle, and/or place violation
stickers upon such vehicle, and Tenant shall pay upon demand to Landlord or any
tow truck operator engaged by Landlord, the charges incurred for the tow and
storage of such vehicle.
7. Tenant shall use metal or plastic containers for the storage of all
day-to-day Refuse. Any out-of-the-ordinary Refuse, including by way of example
only, shipping cartons, construction debris and substantially larger than normal
volumes of ordinary Office Refuse, shall be disposed of by the Tenant in the
manner designated by Landlord.
8. Tenant shall segregate its used paper, magazines, cans, bottles and
other recyclables by distribution into such containers as the Landlord may
provide.
9. Tenant shall not load or unload or permit the loading or unloading
of any Improvements or inventory during any time other than such time as
Landlord may designate in writing; and shall not park or permit the parking of
any vehicles in any manner which shall unreasonably interfere with access to or
from any part of the Project. All loading and unloading of Improvements and
inventory shall be made through the service entrance of the Project and/or such
other locations as Landlord may designate in writing.
10. Tenant shall not obstruct or permit the obstruction of any portion
of the Common Area, nor erect or install or permit the erection or installation
of any Improvement in or about the Common Area.
11. Tenant shall not permit the use of any fire extinguishers, fire
alarm systems and other fire protection or suppression devices required by any
insurance company or Law except for the purpose for which they were intended.
Tenant shall fully cooperate in any fire drills or inspections required by
Landlord or Law.
12. If the Office has a separate thermostat, at a minimum, Tenant
shall keep the thermostat at a temperature no lower than 55 degrees to avoid the
freezing of pipes.
13. Tenant shall not (i) change the exterior color or surface of the
Office, or any Improvement on the exterior of the Office, or otherwise change
the exterior of the Office in any manner whatsoever; or (ii) use any of the
Utility systems for any purpose other than that for which they were specifically
designed, or (iii) dispose of any Refuse in any plumbing system other than
ordinary human waste; or (iv) install, maintain or operate any disposal system
of any nature whatsoever; or (v) except in any area of the Office reserved
solely for use by Tenant's principals and employees, install or operate or
permit the installation or operation of any coin,
EXHIBIT "G"
RULES AND REGULATIONS
2
token, card operated or free vending machines for the sale or offer of any
property or service (including without limitation intended, pay telephones,
amusement devices and machines for the sale of food or beverage).
14. Tenant shall maintain peaceful relations with the public, all of
the Tenant's customers, employees and agents, and all of Tenant's contractors'
and suppliers' employees and agents. If there are any disputes, picketing, or
disturbances (collectively "PROTEST"), Landlord shall have the right to
immediately remove any of the Tenant's contractors or suppliers subject to the
Protest from the Project until the Protest is settled or otherwise halted. If
there is a Protest against the Tenant, either (i) Tenant shall employ only union
labor and contractors if necessary to avoid or halt the Protest in or about the
Project; or (ii) Tenant shall at Landlord's request desist from any further use
or occupancy of the Office until the Protest ends.
15. Neither Tenant, its employees and agents, Tenant's contractors or
suppliers, or contractors' or suppliers' employees and agents, shall loiter,
dally or otherwise hang out in the Common Area; nor consume any beverage or food
in any part of the Common Area except any areas designated by the Landlord for
such purpose. Landlord may designate an area (the "Employee Break Area") which
shall be used for breaks by the Tenant and its employees. If Landlord designates
an Employee Break Area, then Tenant shall not permit any of its employees to
take their breaks in any other portion (or any portion) of the Common Area which
is not an Employee Break Area.
16. The use of tobacco products is strictly prohibited in the enclosed
portions of the Project and the Office, including without limitation intended,
smoking or chewing. Use of tobacco products is only permitted in the portions of
the Common Area which are not enclosed.
17. To the extent permitted by Law, Landlord shall have the right to
exclude from the Project, for any reason or no reason, any individual who is not
a tenant or other authorized occupant, or an employee, agent, supplier or
contractor of a tenant or other authorized occupant.
18. No individual shall wear or display any apparel or Sign, which
Landlord reasonably suspects may create a public disturbance or physical
conflict, including without limitation intended, any colors or apparel
associated with any gang.
19. No individual shall possess a firearm or dangerous weapon in the
Project, without the Landlord's prior consent.
20. No individual or entity shall make, convey or disseminate any
verbal, written or published statement or other form of communication, including
without limitation intended, Sign, advertisement, pamphlet, or handout (except
statements or other forms of communication contained within inventory carried in
the ordinary course of a Tenant's
EXHIBIT "G"
RULES AND REGULATIONS
3
authorized business), in or about the Project, to any customer or potential
customer, which: (i) criticizes the Landlord, the Project, or any occupant of
the Project; or (ii) casts or tends to cast, the Landlord, the Project, or any
occupant of the Project in a false or unfavorable light; or (iii) subjects or
tends to subject, the Landlord, the Project or any occupant of the Project to
ridicule or scorn.
Initials:
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EXHIBIT "G"
RULES AND REGULATIONS
4
EXHIBIT "H"
SIGN CRITERIA
1. INTRODUCTION:
1.01. The following criteria have been established for the purpose of
enhancing the aesthetics of the Project, enhancing the quality of the Project,
and for the mutual benefit of all tenants.
1.02. All capitalized terms used in this exhibit and not defined in this
exhibit shall have the meanings given to them in the Lease.
2. COMPLIANCE: Tenant shall strictly conform the following criteria. Any Tenant
Signs visible from the exterior of the Office which do not conform must promptly
be either: (i) brought into conformance at the Tenant's expense; or (ii) removed
at the Tenant's expense.
3. GENERAL REQUIREMENTS:
3.01. Tenant shall submit or cause to be submitted to Landlord for approval
before fabrication, at least three copies of detailed drawings (to scale),
showing the location, size, layout, design and color of the proposed exterior
Sign(s), including all lettering and/or graphics. Landlord shall have ten days
after receipt of such drawings to approve or reject the drawings and exterior
Signs.
3.02. Any Required Permits for Signs and their installation shall be
obtained by Tenant, and copies delivered to Landlord before any installation is
begun.
3.03. All Signs shall be designed, constructed, installed, maintained and
removed at Tenant's expense.
4. GENERAL SPECIFICATIONS:
4.01. Signs must be professionally prepared and project a professionally
prepared appearance. Handmade, hand painted, hand lettered and stenciled Signs
shall not be used.
4.02. Signs shall employ gold and/or black paint for all names, words and
other text.
4.03. No Sign shall exceed Eight (8) square inches in size.
5. DESIGN REQUIREMENTS:
6.01. Wording of Signs shall not include the product or service sold by the
Tenant except as part of Tenant's trade name or insignia. No "Tagline" Signs are
permitted as Signs.
EXHIBIT "H"
SIGN CRITERIA
1
6.02. Signs shall not display the name of any tenant or other occupant,
except Tenant's name as shown in the Lease or as authorized by the Lease. No
product names shall be used in Signs.
6.03. Tenants are encouraged to have Signs with letter size and location
appropriately scaled and proportioned to the overall entrance to the Office. The
design of all Signs, including style and placement of lettering, size, color,
and materials, shall be subject to the prior approval of Landlord.
7. SIGN CONTENT:
No Sign shall be derogatory, critical or political in nature. No Sign shall
be inaccurate or misleading. No Sign shall promote or refer to any conduct which
is prohibited or not authorized by the Lease. Each Sign shall be directly
related to the identification of the Tenant in the Office.
8. MISCELLANEOUS SIGNS/REQUIREMENTS:
8.01. Tenant shall be permitted to neatly place upon each entrance of its
Office not more than 144 square inches of gold leaf or decal application
lettering not to exceed two inches (2") in height, with Tenant's name, the name
of any department, suite number, hours of business, emergency telephone numbers,
and the like.
8.02. Modifications or deviations from the Sign criteria shall be permitted
when, in Landlord's sole discretion, they produce an outstanding Sign. Any
modifications or deviations from the Sign criteria shall be highlighted in all
drawings submitted by Tenant, to bring them to the Landlord's attention.
Landlord's decision to reject or approve modifications and deviations shall be
final.
8.03. Tenant shall be permitted to install exterior sign on northeast face
of the building on top of 6th floor deck with an approximate dimension of: width
40 feet, height 4 feet except the logo may exceed the height of 6 feet; however,
design, size and location shall be based on City of Federal Way approval. Tenant
shall remove the sign and restore Project at the time of Lease Termination or
Expiry.
9. STANCHION SIGNS:
9.01. Two free standing stanchion Signs may be permitted, one in the main
lobby and second Sign at the entry door of the building from the parking lot.
These Signs are subject to Landlord's prior approval. No easels, free standing,
sandwich board or blade Signs are permitted. Sign drawings for all stanchion
Signs must be submitted to Landlord for prior approval.
EXHIBIT "H"
SIGN CRITERIA
2
9.02. Stanchion Signs shall not exceed the following dimensions:
(a) Height: 4' - O"
(b) Sign face: 18" X 24"
(c) Maximum letter height: Capitals 6", Lower case 4"
9.03. Stanchion Signs shall used only to announce the o Opening or closing
of Office, or for a promotional event, and shall be visible to visitors entering
building from the parking lots and in the main lobby, if and when necessary.
9.04. Stanchion Signs shall not protude more than 16 inches from the Office
into the Open Common Area and shall be located directly in front of the Office.
10. TEMPORARY SIGNS:
10.01. New Tenants, or existing Tenants undergoing a significant remodel
will be permitted to announce their Office and opening or completion of
remodeling with professionally prepared graphics painted on their temporary
construction walls, or a temporary hanging banner.
10.02. Tenants are encouraged to have unique and graphic Signs. The text
shall be limited to the name of the Tenant, name and address of Tenant's general
contractor, and the opening date.
10.03. Signs permitted under this Section 10 shall not exceed the following
dimensions:
(a) Office name & opening date: Maximum letter height: Capitals 18"
Lower case 12"
(b) Special opening promotions: Maximum letter height: Capitals 8",
Lower case 6".
(c) Sign length shall not exceed 6'- 0"
(d) Sign height shall exceed 2'-0"
10.04. Temporary banners announcing the opening of a Office may be attached
to the exterior Office front or interior show window until such time as the
Office opens.
10.05. Immediately upon opening the Office for business, temporary opening
and remodeling banners must be removed by Tenant.
Initials:
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EXHIBIT "H"
SIGN CRITERIA
3
