XXXXXX XXXXX INC
000 XXXXXXXXX TOWER OFFICE LEASE
0000 XXXXX XXXXXX
XXXXXXX, XX 00000-0000 PARK 90/5
TEL 000-0000 XXX 000-0000
This Lease is made this 1st day of December 1997 by and between
The City of Seattle, a Washington municipal corporation ("Landlord"),
and Microvision, Inc., a Washington corporation ("Tenant"), who agree
as follows:
Fundamental Terms. As used in this Lease, the following capitalized terms shall
have the following meanings:
"Land" means the land on which the Building is located, situated
in the City of Seattle, County of King, State of Washington, which is
described on Exhibit A.
"Project" means that project in which the Building is located,
commonly known as Park 90/5, Buildings A, B, C, D, and E, the street
address of each of which is 0000 Xxxxxxx Xxx Xxxxx, Xxxxxxx,
Xxxxxxxxxx.
"Building" means the building in which the Premises are located, commonly
known as Building A, the street address of which is 0000 Xxxxxxx Xxx Xxxxx,
Xxxxxxx, Xxxxxxxxxx 00000.
"Premises" means that certain space outlined in red in Exhibit B and
located on the first floor of the Building designated as Suite ___.
"Agreed Areas" means the agreed amount of rentable square feet of space in
the Project, Building and the Premises. Landlord and Tenant stipulate and agree
for all purposes under this Lease that the Project contains approximately
285,079 rentable square feet of space (the "Project Area"), that the Building
contains approximately 97,300 rentable square feet of space (the "Building
Area") and that the Premises contain approximately _______ rentable square feet
of space (the "Premises Area"). Landlord and Tenant further agree that the
Building Area may exclude portions of the Building which are used for other than
office purposes, such as areas used for retail purposes or for storage purposes.
"Tenant's Share" means "Tenant's Share of the Building" or "Tenant's Share
of the Project", as applicable. Tenant's Share of the Building means the
Premises Area divided by the Building Area, expressed as a percentage, which is
two and thirty-seven one-hundredths percent (2.37%). Tenants Share of the
Project means the Premises Area divided by the Project Area, expressed as a
percentage, which is eighty-one one-hundredths (.81%) Notwithstanding the
foregoing, if one or more of the facilities, services and utilities the costs of
which are included within the definition of Operating Costs is not furnished to
one or more tenants or to particular types of tenants, then in connection with
the calculation of Tenant's Share of each of such costs the Building Area shall
be reduced by the number of rentable square feet of space occupied by such
tenants and Tenant's Share shall be separately computed as to each of such
costs.
If a portion of the Building is damaged or condemned, or any other event
occurs which alters the number of rentable square feet of space in the Premises,
the Building, or the Project, then Landlord shall adjust Tenant's Share to equal
the number of rentable square feet of space then existing in the Premises (as
altered by such event) divided by the number of rentable square feet of space
then existing in the Building (as altered by such event).
"Commencement Date" means December 1, 1997.
"Expiration Date" means January 14, 1999.
"Term" means the period of time commencing on the Commencement Date and
ending on the Expiration Date, unless sooner terminated pursuant to this Lease.
"Minimum Monthly Rent" means Two Thousand Ninety-nine and
thirty-seven/100ths Dollars ($2,099.37) per month during the Term of this Lease.
"Permitted Use" means use for purposes of general business office and
related administrative purposes.
"Base Year" means the calendar year 1995.
"Prepaid Rent" means Zero Dollars ($0.00).
"Security Deposit" means Zero Dollars ($0.00).
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"Parking stalls" means three (3) unreserved parking stalls in the Building
parking area, subject to the provisions of Section 36 captioned "Parking".
"Landlord's Address for Notice" means Park 90/5, c/o Xxxxxx Xxxxx Inc, 0000
Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxxxx 00000-0000.
"Landlord's Address for Payment of Rent" means Park 90/5 Building, c/o
Xxxxxx Xxxxx Inc, 0000 Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxxxx 00000-0000.
"Tenant's Address for Notice" means Microvision, Inc., 0000 Xxxxxxx Xxx
Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxxxx 00000.
"Landlord's Agent" means Xxxxxx Xxxxx Inc or such other agent as Landlord
may appoint from time to time.
"Broker(s)" means Xxxxxx Xxxxx Inc representing the Landlord.
"Exhibits" means the following Exhibits to this Lease:
Exhibit A - Legal Description of the Property
Exhibit B - Outline Drawing of the Premises
Exhibit C - Work Letter
Exhibit D - Rules and Regulations
"Rider" means the following Rider which is attached hereto: Rider dated
December 1, 1997 by and between The City of Seattle, a Washington municipal
corporation ("Landlord"), and Microvision, Inc., a Washington corporation
("Tenant").
"Definitions" means the words and phrases defined in Section 37 captioned
"Definitions".
Premises. Landlord leases to Tenant and Tenant leases from Landlord the Premises
for the Term.
Appurtenances. Tenant, and its authorized representatives, shall have the right
to use, in common with others and subject to the Rules and Regulations, the
Common Areas of the Building. Landlord shall have the right, in Landlord's sole
discretion, from time to time to (i) make changes to the Building interior and
exterior and Common Areas, including without limitation, changes in the
location, size, shape, number and appearance thereof, (ii) to close temporarily
any of the Common Areas for maintenance purposes so long as reasonable access to
the Premises remains available, and (iii) to use the Common Areas while engaged
in making additional improvements, repairs or alterations to the Building. All
of the windows and exterior walls of the Premises and any space in the Premises
used for shafts, stacks, pipes, conduits, ducts, electrical equipment or other
utilities or Building facilities are reserved solely to Landlord and Landlord
shall have rights of access through the Premises for the purpose of operating,
maintaining and repairing the same, provided, however, that such changes shall
not materially affect Tenant's access to, or use and occupancy of, the Premises.
Term. This Lease shall become legally binding as of the earlier of the
Commencement Date or the date Tenant enters onto the Premises with Landlord's
consent, and shall remain in full force and effect thereafter until the
expiration of the Term, unless sooner terminated pursuant to this Lease. The
Term shall commence on the Commencement Date and expire on the Expiration Date.
The Commencement Date shall be the date specified in Section 1.
Minimum Monthly Rent; Late Charge.
Minimum Monthly Rent. Tenant shall pay to Landlord the Minimum Monthly Rent
without deduction, offset, prior notice or demand, in advance on the first day
of each month during the Term. Minimum Monthly Rent for any partial month shall
be prorated at the rate of 1/30th of the Minimum Monthly Rent per day. Minimum
Monthly Rent is exclusive of any sales, franchise, business or occupation or
other tax based on rents (other than Landlord's general income taxes) and should
such taxes apply during the Term, the Minimum Monthly Rent shall be increased by
the amount of such taxes. All Rent shall be paid to Landlord at Landlord's
Address for Payment of Rent or at such other address as Landlord may specify by
notice to Tenant.
Late Charge. Tenant acknowledges that the late payment by Tenant of any
Rent will cause Landlord to incur administrative, collection, processing and
accounting costs and expenses not contemplated under this Lease, the exact
amount of which are extremely difficult or impracticable to fix. Therefore, if
any Rent is not received by Landlord from Tenant by the fifth (5th) calendar day
after such Rent is due, Tenant shall immediately pay to Landlord a late charge
equal to five percent (5%) of the amount of such Rent or Seventy-five and
No/100th Dollars ($75.00), whichever is greater. Landlord and Tenant agree that
this late charge represents a reasonable estimate of such costs and expenses and
is fair compensation to Landlord for its loss caused by Tenant's nonpayment.
Should Tenant pay said late charge but fail to pay contemporaneously therewith
all unpaid amounts of Rent, Landlord's acceptance of this late charge shall not
constitute a waiver of Tenant's default with respect to Tenant's nonpayment nor
prevent Landlord from exercising all other rights and remedies available to
Landlord under this Lease or under law.
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Prepaid Rent and Security Deposit. On execution of this Lease, Tenant shall
deposit with Landlord the Prepaid Rent, as monthly rent for the first full month
of the Term for which Rent is payable, and the Security Deposit, as a Security
Deposit for the performance by Tenant of the provisions of this Lease. If Tenant
is in default, Landlord may use the Security Deposit, or any portion of it, to
cure the default, including without limitation, paying for the cost of any work
necessary to restore the Premises, the Tenant improvements and any alterations
to good condition or to compensate Landlord for all damage sustained by Landlord
resulting from Tenant's default. Tenant shall within five (5) days of demand pay
to Landlord a sum equal to the portion of the Security Deposit expended or
applied by Landlord as provided in this Section so as to maintain the Security
Deposit in the sum initially deposited with Landlord. If Tenant is not in
default as of the expiration or termination of the Term, including without
limitation, in default in payment of the Rent for the last month of the Term,
then Landlord shall return the Security Deposit, without interest, to Tenant
within a reasonable period of time after the expiration or termination of the
Term. Landlord's obligations with respect to the Security Deposit are those of a
debtor and not a trustee. Landlord may commingle the Security Deposit with
Landlord's general and other funds.
Real Property Taxes.
Payment of Tenant's Share of Increases in Real Property Taxes. Tenant shall
pay to Landlord, as Additional Rent, monthly, in advance on the first day of
each month during the Term, an amount equal to one-twelfth (1/12th) of Tenant's
Share of all increases in Real Property Taxes, or such other taxes required by
the State of Washington for government-owned property, that are or will be
levied or assessed against the Property during each calendar year during the
Term over and above the Real Property Taxes that are levied or assessed against
the Property during the Base Year as reasonably estimated by Landlord. Such
Additional Rent is exclusive of any sales, franchise, business or occupation or
other tax based on rents and should such taxes apply during the Term, such
Additional Rent shall be increased by the amount of such taxes. Within one
hundred twenty (120) days after the end of each calendar year during the Term or
within such longer period of time as may be reasonably necessary, Landlord shall
furnish to Tenant a statement of the Real Property Taxes for the preceding
calendar year and Tenant's Share of the increase in Real Property Taxes. If
Tenant's Share of the increase in such Real Property Taxes for that calendar
year over such Real Property Taxes for the Base Year exceeds the monthly
payments made by Tenant, then Tenant shall pay Landlord the deficiency within
thirty (30) days after receipt of the statement. If Tenant's payments made
during that calendar year exceed Tenant's Share of the increase in such Real
Property Taxes for that calendar year over such Real Property Taxes for the Base
Year, then, at Landlord's option, either Landlord shall pay Tenant the excess at
the time Landlord furnishes the statement to Tenant, or Tenant shall be entitled
to offset the excess against the next installment(s) of Minimum Monthly Rent and
Additional Rent, provided, however, that at the end of the Term Landlord shall
pay Tenant the excess at the time Landlord furnishes the statement to Tenant.
General and Special Assessments. With respect to any general or special
assessments which may be levied against or upon the Property, or which under the
laws then in force may be evidenced by improvement or other bonds or may be paid
in annual installments, only the amount of such annual installment, and interest
due thereon, shall be included in the computation of Real Property Taxes.
Proration. Tenant's Share of Real Property Taxes shall be prorated on the
basis of a 360-day year to account for any fractional portion of a tax year
included in the Term at its commencement and expiration.
No Effect on Minimum Monthly Rent. Notwithstanding anything to the contrary
in this Section, the Minimum Monthly Rent payable by Tenant shall in no event be
less than the Minimum Monthly Rent specified in Section 1.
Personal Property Taxes. Tenant shall pay prior to delinquency all personal
property taxes assessed against and levied upon trade fixtures, furnishings,
equipment and all other personal property of Tenant contained in the Premises or
elsewhere. If possible, Tenant shall cause such trade fixtures, furnishings,
equipment and all other personal property of Tenant to be assessed and billed
separately from the Property.
Operating Costs.
Payment of Tenant's Share of Increases in Operating Costs. Tenant shall pay
to Landlord, as Additional Rent, monthly, in advance on the first day of each
month during the Term, an amount equal to one-twelfth (1/12th) of Tenant's Share
of the increase in the Operating Costs of the Property for each calendar year
during the Term over the Operating Costs for the Base Year as reasonably
estimated by Landlord. The Property is part of the Project. Those Operating
Costs attributable to the Project shall be appropriately apportioned by Landlord
to the Building based on the ratio of the Building Area to the Project Area
unless in Landlord's reasonable judgment any such Operating Costs should be
apportioned to the Building on another basis. If any tenant or occupant of space
in the Building or Project provides or pays separately for one or more if its
utilities and services, then Landlord shall have the right to increase the
Operating Costs of the Building or Project, as the case may be, by an amount
equal to the costs that Landlord would have incurred if it had provided and paid
for such utilities and services. Landlord shall reasonably estimate the
Operating Costs for the Base Year and for each calendar year during the Term
based on the Operating Costs that would have been incurred if the Building had
been 95% occupied during the Base Year or each such calendar year, as the case
may be, taking into account historical operating costs for the Building. Such
Additional Rent is exclusive of any sales, franchise, business or occupation or
other tax based on rents and should such taxes apply during the Term, such
Additional Rent shall be increased by the amount of such taxes. Within one
hundred twenty (120) days after the end of each calendar year during the Term or
within such longer period of time as may be reasonably necessary, Landlord shall
furnish to Tenant a statement of the Operating Costs for the preceding calendar
year and Tenant's Share of the increase in the Operating Costs. If Tenant's
Share of the increase in the Operating Costs for that calendar year over the
Operating Costs for the Base Year exceeds the monthly payments made by Tenant,
then Tenant shall pay Landlord the deficiency within thirty (30) days after
receipt of the statement. If
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Tenant's payments made during that calendar year exceed Tenant's Share of the
increase in the Operating Costs for that calendar year over the Operating Costs
for the Base Year, then, at Landlord's option, either Landlord shall pay Tenant
the excess at the time Landlord furnishes the statement to Tenant, or Tenant
shall be entitled to offset the excess against the next installment(s) of
Minimum Monthly Rent and Additional Rent, provided, however, that at the end of
the Term Landlord shall pay Tenant the excess at the time Landlord furnishes the
statement to Tenant.
Proration. Tenant's Share of Operating Costs shall be prorated on the basis
of a 360 day year to account for any fractional portion of a year included in
the Term at its commencement and expiration.
No Effect on Minimum Monthly Rent. Notwithstanding anything to the contrary
in this Section, the Minimum Monthly Rent payable by Tenant shall in no event be
less than the Minimum Monthly Rent specified in Section 1.
Use. Tenant shall use the Premises for the Permitted Use and for no other use
without Landlord's prior consent. Tenant agrees that it has determined to its
satisfaction that the Premises can be used for the Permitted Use. Tenant waives
any right to terminate this Lease if the Premises cannot be used for the
Permitted Use during the Term unless the prohibition on use is the result of
actions taken by Landlord. Tenant's use of the Premises shall be in accordance
with the following:
Insurance. Tenant shall not do, bring, or keep anything in or about the
Premises or the Property that will cause a cancellation of any insurance
covering the Property. If the rate of any insurance carried by Landlord on the
Property as published by the Washington Survey and Rating Bureau, or any
successor rating bureau or agency, is increased as a result of Tenant's use,
then Tenant shall pay to Landlord not less than ten (10) days before the date
Landlord is obligated to pay a premium on the insurance, a sum equal to the
difference between the original premium and the increased premium.
Compliance with Laws. Tenant shall comply with all Laws concerning the
Premises and Tenant's use of the Premises.
Waste, Nuisance and Improper Use. Tenant shall not use the Premises in any
manner that will constitute waste, nuisance or unreasonable annoyance to other
tenants in the Building, including without limitation, (i) the use of
loudspeakers or sound or light apparatus that can be heard or seen outside the
Premises, (ii) for cooking or other activities that cause odors that can be
detected outside the Premises, or (iii) for lodging or sleeping rooms.
Damage to Property. Tenant shall not do anything in, on or about the
Premises that will cause damage to the Property.
Rules and Regulations. Tenant and its authorized representatives shall
comply with the Rules and Regulations set forth on Exhibit D attached hereto.
Landlord shall have the right to amend the Rules and Regulations from time to
time. In the event of a conflict between this Lease and the Rules and
Regulations, as amended, this Lease shall control. Landlord shall have the right
to enforce the Rules and Regulations. Landlord shall have no liability or
responsibility whatsoever with respect to the noncompliance by other tenants or
their authorized representatives with any of such Rules and Regulations.
Hazardous Substances. Tenant shall not dispose of or otherwise allow the release
of any Hazardous Substances in, on or under the Premises, or the Property, or in
any tenant improvements or alterations placed on the Premises by Tenant. Tenant
represents and warrants to Landlord that Tenant's intended use of the Premises
does not involve the use, production, disposal or bringing on to the Premises of
any Hazardous Substances, except for products normally used in general business
offices which constitute Hazardous Substances, provided that such products are
used, stored and disposed of in accordance with applicable laws and
manufacturer's and supplier's guidelines. Tenant shall promptly comply with all
laws and with all orders, decrees or judgments of governmental authorities or
courts having jurisdiction, relating to the use, collection, treatment,
disposal, storage, control, removal or cleanup of Hazardous Substances, on or
under the Premises or the Property, or incorporated in any tenant improvements
or alterations, at Tenant's expense.
Compliance; Notification. After notice to Tenant and a reasonable
opportunity for Tenant to effect such compliance, Landlord may, but is not
obligated to, enter upon the Premises and take such actions and incur such costs
and expenses to effect such compliance as it deems advisable to protect its
interest in the Premises and the Property, provided, however that Landlord shall
not be obligated to give Tenant notice and an opportunity to effect such
compliance if (i) such delay might result in material adverse harm to the
Premises, or the Property, or (ii) an emergency exists. Tenant shall reimburse
Landlord for the full amount of all costs and expenses incurred by Landlord in
connection with such compliance activities, and such obligation shall continue
even after expiration or termination of the Term. Tenant shall notify Landlord
immediately of any release of any Hazardous Substances on the Premises or the
Property.
Indemnity by Tenant. Tenant agrees to hold Landlord harmless from and
against any and all damages, charges, cleanup costs, remedial actions, costs and
expenses, which may be imposed on, incurred or paid by, or asserted against
Landlord, the Premises or the Property by reason of, or in connection with (1)
any misrepresentation, breach of warranty or other default by Tenant under this
Lease, or (2) the acts or omissions of Tenant, its authorized representatives,
or any subtenant or other person for whom Tenant would otherwise be liable,
resulting in the release of any Hazardous Substances on the Premises or the
Property.
4
Acknowledgment as to Hazardous Substances. Tenant acknowledges that the
Premises may contain Hazardous Substances, and Tenant accepts the Premises and
the Building notwithstanding such Hazardous Substances. If Landlord is required
by any law to take any action to remove or xxxxx any Hazardous Substances, or if
Landlord deems it necessary to conduct special maintenance or testing procedures
with regard to any Hazardous Substances, or to remove or xxxxx any Hazardous
Substances, Landlord may take such action or conduct such procedures at times
and in a manner that Landlord deems appropriate under the circumstances, and
Tenant shall permit the same.
Survival. The provisions of this Section shall survive the expiration or
sooner termination of the Term. No subsequent modification or termination of
this Lease by agreement of the parties or otherwise shall be construed to waive
or to modify any provisions of this Section unless the termination or
modification agreement or other document expressly so states in writing.
Landlord's Maintenance; Inclusion in Operating Costs.
Landlord's Maintenance. Except as provided in Section 13 captioned
"Tenant's Maintenance; Remedies", Section 18 captioned "Destruction" and Section
19 captioned "Condemnation" and except for damage caused by any negligent or
intentional act or omission of Tenant or its authorized representatives,
Landlord shall maintain in good condition and repair the following:(i) the
structural parts of the Building, which structural parts include only the
foundations, bearing and exterior walls (excluding glass and doors), subflooring
and roof, (ii) the building standard lighting fixtures, window coverings and
ceiling tiles and the unexposed electrical, plumbing and sewage systems,
including without limitation, those portions lying outside the Premises, (iii)
the heating, ventilating and air-conditioning system, if any, servicing the
Building, (iv) the lobbies, corridors, elevators, public or common restrooms and
other common areas of the Building, and (v) the sidewalks, grounds, landscaping,
parking and loading areas, if any, and other common areas of the Property.
Inclusion in Operating Costs. The cost of maintaining, repairing, replacing
or servicing the portions of the Building that Landlord is required to maintain
pursuant to this Section shall be included in Operating Costs to the extent
provided in Section 9 captioned "Operating Costs".
Tenant's Maintenance; Remedies.
Tenant's Maintenance. Except as provided in Section 12 captioned
"Landlord's Maintenance; Inclusion in Operating Costs", Section 18 captioned
"Destruction" and Section 19 captioned "Condemnation" and except for damage
caused by any grossly negligent or intentional act or omission of Landlord or
its authorized representatives, Tenant, at its cost, shall maintain in good
condition and repair the Premises, including without limitation, all of the
Tenant Improvements (except for latent defects), Tenant's alterations, Tenant's
trade fixtures, Tenant's personal property, signs, walls, interior partitions,
wall coverings, windows, non-building standard window coverings, glass, doors,
carpeting and resilient flooring, non-building standard ceiling tiles, plumbing
fixtures and non-building standard lighting fixtures. Tenant shall be liable for
any damage to the Premises and the Building resulting from the acts or omissions
of Tenant or its authorized representatives.
Landlord's Remedies. If Tenant fails to maintain the Premises in good
condition and repair as required by Subsection 13(a) and if such failure is not
cured within thirty (30) days after notice of such failure is given by Landlord
to Tenant, then Landlord may, at its option, cause the Premises to be maintained
in good condition and repair and Tenant shall promptly reimburse Landlord for
all costs incurred by Landlord in performance of Tenant's obligation to maintain
the Premises.
Tenant Improvements and Alterations; Trade Fixtures.
Tenant Improvements and Alterations. Tenant accepts the Premises in "AS IS"
condition without any obligations for the performance of improvements or other
work by Landlord. Tenant shall install and pay for the improvements and
alterations as set forth in the Work Letter attached hereto as Exhibit C. Tenant
shall not make any other improvements or alterations to the Premises without
Landlord's prior consent. Any improvements and alterations made by either party
shall remain on and be surrendered with the Premises on expiration or
termination of the Term, except that Landlord can elect by giving notice to
Tenant within thirty (30) days before the expiration of the Term, or within
thirty (30) days after termination of the Term, to require Tenant to remove any
improvements and alterations that Tenant has made to the Premises. If Landlord
so elects, Tenant, at its cost, shall restore the Premises to the condition
designated by Landlord in its election, before the last day of the Term, or
within thirty (30) days after notice of election is given, whichever is later.
Any improvements and alterations that remain on the Premises on expiration or
termination of the Term shall automatically become the property of Landlord and
title to such improvements and alterations shall automatically pass to Landlord
at such time without any payment therefor by Landlord to Tenant. If Tenant or
its authorized representatives make any improvements or alterations to the
Premises as provided in this Section, then such improvements and alterations (i)
shall be made in a first class manner in conformity with then building standard
improvements, (ii) shall be made utilizing then building standard materials,
(iii) shall be made in compliance with the Rules and Regulations and the
reasonable directions of Landlord, (iv) shall be made pursuant to a valid
building permit to be obtained by Tenant, at its cost, (v) shall be made in
conformity with then applicable Laws, including without limitation, building
codes, and (vi) shall not be commenced until five (5) days after Landlord has
received notice from Tenant stating the date the installation of such
improvements and alterations is to commence so that Landlord can post and record
an appropriate notice of nonresponsibility.
Trade Fixtures. Tenant shall not install any trade fixtures in or on the
Premises without Landlord's prior consent.
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Mechanics' Liens. Tenant shall pay, or cause to be paid, all costs of labor,
services and/or materials supplied in connection with any Work. Tenant shall
keep the Property free and clear of all mechanics' liens and other liens
resulting from any Work. Prior to the commencement of any Work or the supply or
furnishing of any labor, services and/or materials in connection with any Work,
Tenant shall provide Landlord with a labor and material payment bond in an
amount equal to one hundred percent (100%) of the aggregate price of all
contracts therefor, with release of the bond conditioned on Tenant's payment in
full of all claims of lien claimants for such labor, services and/or materials
supplied in the prosecution of the Work. Said payment bond shall name Landlord
as a primary obligee, shall be given by a surety which is satisfactory to
Landlord, and shall be in such form as Landlord shall approve in its sole
discretion. Tenant shall have the right to contest the correctness or validity
of any such lien if, immediately on demand by Landlord, it procures and records
a lien release bond issued by a responsible corporate surety in an amount
sufficient to satisfy statutory requirements therefor in the State of
Washington. Tenant shall promptly pay or cause to be paid all sums awarded to
the claimant on its suit, and, in any event, before any execution is issued with
respect to any judgment obtained by the claimant in its suit or before such
judgment becomes a lien on the Premises, whichever is earlier. If Tenant shall
be in default under this Section, by failing to provide security for or
satisfaction of any mechanic's or other liens, then Landlord may (but shall not
be obligated to), in addition to any other rights or remedies it may have,
discharge said lien by (i) paying the claimant an amount sufficient to settle
and discharge the claim, (ii) procuring and recording a lien release bond, or
(iii) taking such other action as Landlord shall deem necessary or advisable,
and, in any such event, Tenant shall pay as Additional Rent, on Landlord's
demand, all costs (including reasonable attorney fees) incurred by Landlord in
settling and discharging such lien together with interest thereon in accordance
with Section 34 captioned "Interest on Unpaid Rent" from the date of Landlord's
payment of said costs. Landlord's payment of such costs shall not waive any
default of Tenant under this Section.
Utilities and Services.
Utilities and Services Furnished by Landlord. Landlord shall furnish the
Premises with:
Electricity for lighting and power suitable for the use of the Premises for
ordinary general office purposes; provided, however, that Tenant shall not at
any time have a connected electrical load for lighting purposes in excess of the
wattage per square foot of Premises Area required for building standard amounts
of lighting, or a connected load for all other power requirements in excess of
four (4) xxxxx per square foot of Premises Area as determined by Landlord, and
the electricity so provided for lighting and power shall not exceed such limits,
subject to any lower limits set by any governmental authority with respect
thereto;
Subject to the reasonable limitations of the existing building systems,
heating, ventilating and air-conditioning, if the Building has an
air-conditioning system, to maintain a temperature range in the Premises which
is customary for similar office space in the Seattle, Washington area (but in
compliance with any applicable governmental regulations with respect thereto).
Tenant agrees to keep closed, when necessary, blinds, draperies and windows
which must be closed to provide for the efficient operation of the heating and
air conditioning systems, if any, and Tenant agrees to cooperate with Landlord
and to abide by the regulations and requirements which Landlord may prescribe
for the proper functioning and protection of the heating, ventilating and
air-conditioning system, if any. If Tenant requires heating, ventilating and air
conditioning to the Premises other than during normal business hours from 7:30
A.M. to 6:00 P.M. daily, except Saturdays, Sundays and those legal holidays
generally observed in the State of Washington, Landlord shall, upon Tenant's
request made not less than 24 hours before the time Tenant requires the after
hour service, and not later than Noon on the Friday before any Saturday or
Sunday on which Tenant requires such service, and not later than Noon of the day
before any holiday on which Tenant requires such service (except as otherwise
provided in the Rules and Regulations), furnish such heating, ventilating and
air conditioning. If Tenant receives such services, then Tenant shall pay, upon
demand, an amount equal to Tenant's proportionate share of the actual direct
cost to Landlord in providing the heating, ventilating and air conditioning
outside of normal business hours;
Water for restroom and drinking purposes and access to restroom facilities;
Elevator service for general office pedestrian usage if the Building is
serviced by elevators;
Relamping of building-standard light fixtures;
Washing of interior and exterior surfaces of exterior windows with
reasonable frequency; and
Janitorial service five (5) times per week, except holidays.
Payment for Excess Utilities and Services. All services and utilities for
the Premises not required to be furnished by Landlord pursuant to Section 16(a)
shall be paid for by Tenant. If Tenant requires, on a regular basis, water,
heat, air conditioning, electric current, elevator or janitorial service in
excess of that provided for in Section 16(a), then Tenant shall first obtain the
consent of Landlord which consent may be withheld in Landlord's sole discretion.
If Landlord consents to such excess use, Landlord may install an electric
current or water meter (including, without limitation, any additional wiring,
conduit or panel required therefor) to measure the excess electric current or
water consumed by Tenant or may cause the excess usage to be measured by other
reasonable methods (e.g. by temporary "check" meters or by survey). Tenant shall
pay to Landlord upon demand (i) the cost of any and all water, heat, air
conditioning, electric current, janitorial, elevator or other services or
utilities required to be furnished to Tenant in excess of the services and
utilities required to be furnished by Landlord as provided in Section 16(a);
(ii) the cost of installation, maintenance and repair of any meter installed in
the Premises; (iii) the cost of all electricity and water consumed by Tenant in
connection with any dedicated heating, ventilating and/or air conditioning,
computer power and/or air conditioning, telecommunications or other special
systems of Tenant, including any power usage other than through existing
standard 110-volt AC outlets; and (iv) any cost incurred by Landlord in keeping
account of or determining such
6
excess utilities or services furnished to Tenant. Landlord's failure to xxxx
Tenant for any such excess utilities or services shall not waive Landlord's
right to xxxx Tenant for the excess at a later time.
Temperature Balance. Landlord makes no representation to Tenant regarding
the adequacy or fitness of the heating, ventilating and air-conditioning
systems, if any, in the Building to maintain temperatures that may be required
for, or because of, any of Tenant's equipment which uses other than the
fractional horsepower normally required for office equipment, and Landlord shall
have no liability for loss or damage suffered by Tenant or others in connection
therewith. If the temperature otherwise maintained in any portion of the
Premises by the heating, air conditioning or ventilation system is affected as a
result of (i) any lights, machines or equipment (including without limitation
electronic data processing machines) used by Tenant in the Premises, (ii) the
occupancy of the Premises by more than one person per two hundred (200) square
feet of rentable area therein, (iii) an electrical load for lighting or power in
excess of the limits per square foot of rentable area of the Premises specified
in Section 16(a), or (iv) any rearrangement of partitioning or other
improvements, Landlord may install any equipment, or modify any existing
equipment (including the standard air conditioning equipment) Landlord deems
necessary to restore the temperature balance. The cost of any such equipment,
including without limitation, the cost of design and installation thereof, and
the cost of operating, metering, maintaining or repairing the same, shall be
paid by Tenant to Landlord upon demand. Tenant shall not install or operate
window-mounted heating or air-conditioning units.
Special Electrical or Water Connections; Electricity Use. Tenant will not,
without the prior consent of Landlord, which Landlord in its sole discretion may
refuse, connect or use any apparatus or device in the Premises (i) using current
in excess of 110 volts or (ii) which will cause the amount of electricity,
water, heating, air conditioning or ventilation furnished to the Premises to
exceed the amount required for use of the Premises for ordinary general office
purposes, as determined by Landlord, during normal business hours or (iii) which
would cause Tenant's connected load to exceed any limits established in Section
16(a). Tenant shall not connect with electric current except through existing
outlets in the Premises and shall not connect with water pipes except through
existing plumbing fixtures in the Premises. In no event shall Tenant's use of
electricity exceed the capacity of existing feeders to the Building or the
risers or wiring installation, and Landlord may prohibit the use of any
electrical equipment which in Landlord's opinion will overload such wiring or
interfere with the use thereof by other tenants in the Building. If Landlord
consents to the use of equipment requiring such changes, Tenant shall pay the
cost of installing any additional risers, panels or other facilities that may be
necessary to furnish energy to the Premises.
Landlord will not permit additional coring of the floor of the Premises in
order to install new electric outlets in the Premises unless Tenant furnishes
Landlord with X-ray scans of the floor area where the Tenant wishes to place
additional electrical outlets and Landlord, in its absolute discretion, is
satisfied, on the basis of such X-ray scans and other information obtained by
Landlord, that coring of the floor in order to install such additional outlets
will not weaken the structure of the floor.
Landlord's Duties. Landlord shall not be in default under this Lease or
liable for any damages resulting from, or incidental to, any of the following,
nor shall any of the following be an actual or constructive eviction of Tenant,
nor shall the Rent be abated by reason of: (i) failure to furnish or delay in
furnishing any of the services described in this Section when such failure or
delay is caused by accident or any condition beyond the reasonable control of
Landlord, including the making of necessary repairs or improvements to the
Premises or to the Building, (ii) any electrical surges or spikes, or (iii)
failure to make any repair or to perform any maintenance, unless such failure
shall persist for an unreasonable time after notice of the need for such repair
or maintenance is given to Landlord by Tenant. Landlord shall use reasonable
efforts to remedy any interruption in the furnishing of such services.
Governmental Regulations. Any other provisions of this Section
notwithstanding, if any governmental authority or utility supplier imposes any
laws, controls, conditions, or other restrictions upon Landlord, Tenant, or the
Building, relating to the use or conservation of energy or utilities, mandated
changes in temperatures to be maintained in the Premises or the Building or the
reduction of automobile or other emissions (collectively, the "Controls"), or in
the event Landlord is required or elects to make alterations to the Building in
order to comply with the Controls, Landlord may, in its sole discretion, comply
and may require Tenant to comply with the Controls or make such alterations to
the Building in order to comply with the Controls. Such compliance and the
making of such alterations shall not constitute an actual or constructive
eviction of Tenant, impose on Landlord any liability whatsoever, or entitle
Tenant to any abatement of Rent.
Insurance. Prior to the commencement of use of this Lease, Tenant shall secure
and maintain, at no expense to Landlord, a policy or policies of insurance as
set forth below. Evidence of such insurance shall be delivered to the address
set forth below-. Said policy(ies) (1) shall be subject to approval by the
Landlord's Risk Manager as to Company, Form and Coverage, (2) be primary to all
other insurance the Landlord may secure, and (3) must protect Landlord from any
and all claims and risks in connection with any activity performed by virtue of
this Lease or any use and occupancy of the Premises authorized by this Lease.
Said insurance policy(ies) and subsequent renewals must be maintained in full
force and effect, at no expense to the Landlord, throughout the entire Term of
this Lease.
Commercial General Liability Insurance. A policy of Commercial General
Liability Insurance written on an insurance industry standard occurrence form
(CG 00 01) or equivalent, including all the usual coverages known as:
Premises/Operations Liability
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Products/Completed Operations
Personal/Advertising Injury
Contractual Liability
Independent Contractors Liability
Stop Gap/Employers Contingent Liability
Liquor Liability/Host Liquor Liability (as applicable)
Fire Damage Legal Liability
Such policy(ies) must provide the following minimum limits:
Bodily Injury and Property Damage
$ 2,000,000 General Aggregate
$ 2,000,000 Products and Completed Operations Aggregate
$ 1,000,000 Personal and Advertising Injury
$ 1,000,000 Each Occurrence
$ 100,000 Fire Damage
Stop Gap Employers Liability
$ 1,000,000 Each Accident
$ 1,000,000 Disease - Policy Limit
$ 1,000,000 Disease - Each Employee
Any deductible or self-insured retention must be disclosed and is subject
to approval by the Landlord's Risk Manager. The cost of any claim payments
falling within the deductible shall be the responsibility of the Tenant.
Business Automobile Liability Insurance. A policy of Business Automobile
Liability Insurance, including coverage for owned, non-owned, leased or hired
vehicles written on an insurance industry standard form (CA 00 01) or
equivalent. Such policy(ies) must provide the following minimum limit:
Bodily Injury and Property Damage $ 1,000,000 per accident
Such insurance, as provided under items (a) and (b) above, shall be
endorsed to include the Landlord, its officers, elected officials, employees,
agents and volunteers as additional insured, and shall not be reduced or
canceled without forty-five (45) days prior written notice to the Landlord. In
addition, Tenant's insurance shall be primary as respects the Landlord, and any
other insurance maintained by the Landlord shall be excess and not contributing
insurance with the Tenant's insurance.
Worker's Compensation Insurance. A policy of Worker's Compensation
Insurance. As respects Workers' Compensation insurance in the State of
Washington, the Tenant shall secure its liability for industrial injury to its
employees in accordance with the provisions of Title 51 of the Revised Code of
Washington. If the Tenant is qualified as a self-insurer in accordance with
Chapter 51.14 of the Revised Code of Washington, Tenant shall so certify by a
letter signed by a corporate officer setting forth the limits of any policy of
excess insurance covering its employees.
Property Insurance. A policy of Property Insurance covering its furniture,
fixtures, equipment and inventory and all improvements which it makes to the
Premises in an amount equal to replacement cost thereof, against (i) loss from
the perils of fire, and other risks of direct physical loss, not less broad than
provided by the insurance industry standard "Causes of Loss - Special Form (CP
10 30)", (ii) Loss or damage from water damage, or sprinkler systems now or
hereafter installed in on the premises; (iii) Loss or damage by explosion of
steam boilers, pressure vessels, oil or gasoline storage; and (iv) Business
Interruption or Extra Expense, with sufficient coverage to provide for the
payment of Rent and other fixed costs during any interruption of Tenant's
business because of fire or other cause.
Coverage and/or Limits. Coverage and/or limits may be altered or increased
as necessary, to reflect type of or exposure to risk. Landlord shall have the
right to periodically review the appropriateness of such limits in view of
inflation and/or changing industry conditions and to require an increase in such
limits upon ninety (90) days prior written notice.
Evidence of Insurance. The following documents must be provided as evidence
of insurance coverage:
A copy of the policy's declarations pages, showing the Insuring Company,
policy effective dates, limits of liability, and the Schedule of Forms and
Endorsements.
A copy of the endorsement naming the Landlord as an Additional Insured,
showing the policy number, and signed by an authorized representative of the
insurance company on Form CG2026 (ISO) or equivalent.
8
A copy of the "Endorsements Form List" to the policy or policies showing
endorsements issued on the policy, and including any company-specific or
manuscript endorsements.
A copy of an endorsement stating that the coverages provided by this policy
to the Landlord or any other named insured shall not be terminated, reduced or
otherwise materially changed without providing at least forty-five (45) days
prior written notice to the Landlord.
A copy of a "Separation of Insureds" or "Severability of Interests" clause,
indicating essentially that - except with respect to the limits of insurance,
and any rights or duties specifically assigned to the first named insured, this
insurance applies as if each named insured were the only named insured, and
separately to each insured against whom claim is made or suit is brought
(Commercial General Liability and Business Automobile Liability Insurance).
All policies shall be subject to approval by the Landlord's Risk Manager as
to company (must be rated A-VII or higher in the A.M. Best's Key Rating Guide
and licensed to do business in the State of Washington or issued as a surplus
line by a Washington Surplus lines broker), form and coverage, and primary to
all other insurance.
Maintain Insurance. If Tenant fails to maintain such insurance, Landlord
may do so, and Tenant shall reimburse Landlord for the full expense thereof upon
demand. Tenant shall not keep or use in or about the Premises any article which
is prohibited by Landlord's insurance policy. Tenant shall pay immediately any
increase in Landlord's premiums for insurance during the term of this Lease
which results from Tenant's use of the Premises.
Waiver of Subrogation. Either Landlord nor Tenant shall be liable to the
other party or to any insurance company (by way of subrogation or otherwise)
insuring the other party for any loss or damage to any building, structure or
tangible personal property of the other occurring in or about the Premises or
Building, even though such loss or damage might have been occasioned by the
negligence of such party, its' agents or employees, if such loss or damage is
covered by insurance benefiting the party suffering such loss or damage or was
required under the terms of this Lease to be covered by insurance procured by
the party suffering the loss.
Destruction.
Insured Damage. If during the Term the Premises or the Building are
partially or totally destroyed by any casualty that is covered by any insurance
carried by Landlord covering the Building, rendering the Premises partially or
totally inaccessible or unusable, Landlord shall restore the Premises or the
Building to substantially the same condition as they were in immediately before
such destruction, if (i) the insurance proceeds available to Landlord equal or
exceed the cost of such restoration, (ii) in the opinion of a registered
architect or engineer appointed by Landlord such restoration can be completed
within one hundred eighty (180) days after the date on which Landlord obtains
all permits necessary for such restoration, and (iii) such restoration is
permitted under then existing laws to be done in such a manner as to return the
Premises, or the Building, as the case may be, to substantially the same
condition as they were in immediately before such destruction. To the extent
that the insurance proceeds must be paid to a mortgagee under, or must be
applied to reduce any debt secured by, a mortgage covering the Property, the
insurance proceeds shall be deemed not to be available to Landlord unless such
mortgagee permits Landlord to use the insurance proceeds for such restoration.
Such destruction shall not terminate this Lease.
Major or Uninsured Damage. If during the Term the Premises or the Building
are partially or totally destroyed by any casualty and Landlord is not obligated
under Section 18(a) captioned "Insured Damage" to restore the Premises or the
Building, as the case may be, then Landlord may, at its election, either (i)
restore the Premises or the Building to substantially the same condition as they
were in immediately before such destruction, or (ii) terminate this Lease
effective as of the date of such destruction. If Landlord does not give Tenant
notice within sixty (60) days after the date of such destruction of its election
to restore the Premises or the Building, as the case may be, Landlord shall be
deemed to have elected to terminate this Lease. If Landlord elects to restore
the Premises or the Building, as the case may be, Landlord shall use
commercially reasonable efforts to complete such restoration within one hundred
eighty (180) days after the date on which Landlord obtains all permits necessary
for such restoration, provided, however, that such one hundred eighty (180) day
period shall be extended by a period equal to any delays caused by Force
Majeure, and such destruction shall not terminate this Lease.
Damage to the Building. If during the Term the Building is partially
destroyed by any casualty and if in the opinion of Landlord the Building should
be restored in such a way as to materially alter the Premises, then Landlord
may, at Landlord's election, terminate this Lease by giving notice to Tenant of
Landlord's election to do so within sixty (60) days after the date of such
destruction.
Extent of Landlord's Obligation to Restore. If Landlord is required or
elects to restore the Premises as provided in this Section, Landlord shall not
be required to restore alterations made by Tenant, Tenant's trade fixtures and
Tenant's personal property, such excluded items being the sole responsibility of
Tenant to restore.
Abatement or Reduction of Rent. In case of damage to, or destruction of,
the Premises or the Building the Minimum Monthly Rent shall be abated or
reduced, between the date of destruction and the date of completion of
restoration, by an amount that is in the same ratio to the Minimum Monthly Rent
as the total number of square feet of the Premises that are so damaged or
destroyed bears to the total number of square feet in the Premises.
9
Condemnation. If during the Term there is any taking of part or all of the
Premises or the Building by condemnation, then the rights and obligations of the
parties shall be as follows:
Minor Taking. If there is a taking of less than ten percent (10%) of the
Premises, this Lease shall remain in full force and effect.
Major Taking. If there is a taking of ten percent (10%) or more of the
Premises and if the remaining portion of the Premises is of such size or
configuration that Tenant is unable to conduct its business in the Premises,
then the Term shall terminate as of the date of taking.
Taking of Part of the Building. If there is a taking of a part of the
Building other than the Premises and if in the opinion of Landlord the Building
should be restored in such a way as to materially alter the Premises, then
Landlord may terminate the Term by giving notice to such effect to Tenant within
sixty (60) days after the date of vesting of title in the condemnor and the Term
shall terminate as of the date specified in such notice, which date shall not be
less than sixty (60) days after the giving of such notice.
Award. The entire award for the Premises, the Building and the Property,
shall belong to and be paid to Landlord, Tenant hereby assigning to Landlord
Tenant's interest therein, if any, provided, however, that Tenant shall have the
right to claim and recover from the condemnor compensation for the loss of any
alterations made by Tenant, Tenant's trade fixtures, Tenant's personal property,
moving expenses and business interruption.
Abatement of Rent. If any part of the Premises is taken by condemnation and
this Lease remains in full force and effect, on the date of taking the Minimum
Monthly Rent shall be reduced by an amount that is in the same ratio to the
Minimum Monthly Rent as the total number of square feet in the Premises taken
bears to the total number of square feet in the Premises immediately before the
date of taking.
Assignment and Subletting.
Landlord's Consent; Definitions. Tenant acknowledges that the Building is a
multi-tenant office building, occupied by tenants specifically selected by
Landlord, and that Landlord has a legitimate interest in the type and quality of
such tenants, the location of tenants in the Building and in controlling the
leasing of space in the Building so that Landlord can better meet the particular
needs of its tenants and protect and enhance the relative image, position and
value of the Building in the office building market. Tenant further acknowledges
that the rental value of the Premises may fluctuate during the Term in
accordance with market conditions, and, as a result, the Rent paid by Tenant
under the Lease at any particular time may be higher or lower than the then
market rental value of the Premises. Landlord and Tenant agree, and the
provisions of this Section are intended to so provide, that, if Tenant
voluntarily assigns its interest in this Lease or in the Premises or subleases
any part or all of the Premises, a portion of the profits from any increase in
the market rental value of the Premises shall belong solely to Landlord. Tenant
acknowledges that, if Tenant voluntarily assigns this Lease or subleases any
part or all of the Premises, Tenant's investment in the subject portion of the
Premises (specifically including, but not limited to, tenant improvements, good
will or other assets) may be lost or reduced as a result of such action.
Consent Required. Tenant shall not voluntarily assign or encumber its
interest in this Lease or in the Premises, or sublease any part or all of the
Premises, without Landlord's prior consent, which consent shall not be
unreasonably withheld. Any assignment, encumbrance or sublease without
Landlord's consent shall be voidable and, at Landlord's election, shall
constitute a default by Tenant under this Lease. In determining whether to
approve a proposed assignment or sublease, Landlord shall place primary emphasis
on the proposed transferee's reputation and creditworthiness, the character of
the business to be conducted by the proposed transferee at the Premises and the
affect of such assignment or subletting on the tenant mix in the Building. In
addition, Landlord shall have the right to approve the specific form of any
assignment or sublease agreement. In no event shall Landlord be obligated to
consent to any assignment or subletting which increases (i) the Operating Costs,
(ii) the burden on the Building services, or (iii) the foot traffic, elevator
usage or security concerns in the Building, or creates an increased probability
of the comfort and/or safety of the Landlord and other tenants in the Building
being unreasonably compromised or reduced (for example, but not exclusively,
Landlord may deny consent to an assignment or subletting where the space will be
used for a school or training facility, an entertainment, sports or recreation
facility, retail sales to the public (unless Tenant's permitted use is retail
sales), a personnel or employment agency, a medical office, or an embassy or
consulate or similar office. Landlord shall not be obligated to approve an
assignment or subletting to (x) a current tenant of the Building or (y) a
prospective tenant of the Building with whom Landlord is then negotiating.
Landlord's foregoing rights and options shall continue throughout the entire
term of this Lease. No consent to any assignment, encumbrance or sublease shall
constitute a waiver of the provisions of this Section and no other or subsequent
assignment, encumbrance or sublease shall be made without Landlord's prior
consent. Neither an assignment or subletting nor the collection of Rent by
Landlord from any person other than Tenant, nor the application of any such Rent
as provided in this Section shall be deemed a waiver of any of the provisions of
this Section or release Tenant from its obligation to comply with the terms and
provisions of this Lease and Tenant shall remain fully and primarily liable for
all of Tenant's obligations under this Lease, including the obligation to pay
Rent under this Lease. Any personal guarantee(s) of Tenant's obligations under
this Lease shall remain in full force and effect following any such assignment
or subletting. Landlord may condition approval of an assignment or subletting
hereunder on an increase in the amount of the Security Deposit or on receipt of
personal guarantees of the assignee's or sublessee's obligations under this
Lease. If Landlord approves of an assignment or subletting hereunder and this
Lease contains any renewal options, expansion options, rights of first refusal,
rights of first negotiation or any other rights or options pertaining to
additional space in the Building, such rights and/or options shall not run to
the assignee or subtenant, it being agreed by the parties hereto that any such
rights and options are personal to Tenant named herein and may not be
transferred.
10
Conditions to Assignment or Sublease. Tenant agrees that any instrument by
which Tenant assigns or sublets all or any portion of the Premises shall
expressly provide that the assignee or subtenant may not further assign or
sublet the assigned or sublet space without Landlord's prior consent (which
consent shall not, subject to Landlord's rights under Section 20(b), be
unreasonably withheld or delayed), and that the assignee or subtenant will
comply with all of the provisions of this Lease and that Landlord may enforce
the Lease provisions directly against such assignee or subtenant. If this Lease
is assigned, whether or not in violation of the terms and provisions of this
Lease, Landlord may collect Rent from the assignee. If the Premises, or any part
thereof, is sublet, Landlord may, upon a default under this Lease, collect rent
from the subtenant. In either event, Landlord may apply the amount collected
from the assignee or subtenant to Tenant's obligation to pay Rent under this
Lease.
Events Constituting an Assignment or Sublease. For purposes of this
Section, the following events shall be deemed an assignment or sublease, as
appropriate:(i) the issuance of equity interests (whether stock, partnership
interests or otherwise) in Tenant, or any assignee or subtenant, if applicable,
or any entity controlling any of them, to any person or group of related
persons, in a single transaction or a series of related or unrelated
transactions, such that, following such issuance, such person or group shall
have Control (as defined below) of Tenant, or any assignee or subtenant, if
applicable; or (ii) a transfer of Control of Tenant, or any assignee or
subtenant, if applicable, or any entity controlling any of them, in a single
transaction or a series of related or unrelated transactions (including, without
limitation, by consolidation, merger, acquisition or reorganization), except
that the transfer of outstanding capital stock or other listed equity interests
by persons or parties other than "insiders" within the meaning of the Securities
Exchange Act of 1934, as amended, through the "over-the-counter" market or any
recognized national or international securities exchange, shall not be included
in determining whether Control has been transferred. "Control" shall mean direct
or indirect ownership of fifty percent (50%) or more of all the legal and
equitable interest in any business entity.
Processing Expenses. Tenant shall pay to Landlord the amount of Landlord's
cost of processing each proposed assignment or subletting, including without
limitation, attorneys' and other professional fees, and the cost of Landlord's
administrative, accounting and clerical time (collectively, "Processing Costs"),
and the amount of all direct and indirect expense incurred by Landlord arising
from the assignee or sublessee taking occupancy of the subject space, including
without limitation, costs of freight elevator operation for moving of
furnishings and trade fixtures, security service, janitorial and cleaning
service, rubbish removal service, costs of changing signage, and costs of
changing locks and making new keys (collectively, "Occupancy Costs").
Notwithstanding anything to the contrary herein, Landlord shall not be required
to process any request for Landlord's consent to an assignment or subletting
until Tenant has paid to Landlord the amount of Landlord's estimate of the
Processing Costs and the Occupancy Costs.
Consideration to Landlord. In the event of any assignment or sublease,
whether or not requiring Landlord's consent, Landlord shall be entitled to
receive, as Additional Rent, one-half (1/2) of any consideration, including
without limitation, payment for leasehold improvements owned by Landlord, paid
by the assignee or subtenant for the assignment or sublease and, in the case of
sublease, the excess of the amount of rent paid for the sublet space by the
subtenant over the total amount of Minimum Monthly Rent under Section 5 and
Additional Rent under Sections 7 and 9. Upon Landlord's request, Tenant shall
assign to Landlord all amounts to be paid to Tenant by the assignee or subtenant
and shall direct such assignee or subtenant to pay the same directly to
Landlord. If there is more than one sublease under this Lease, the amounts (if
any) to be paid by Tenant to Landlord pursuant to the preceding sentence shall
be separately calculated for each sublease and amounts due Landlord with regard
to any one sublease may not be offset against rental and other consideration
pertaining due under any other sublease.
With regard to an approved assignment or subletting, Tenant acknowledges
that Landlord's agreement to deal directly with the assignee or subtenant with
regard to such party's occupancy of the Premises and the administration of the
Lease, without requiring Tenant to monitor or become directly involved in such
matters, constitutes appropriate and acceptable consideration for the capture by
Landlord of any rent or consideration paid by the assignee or subtenant in
excess of that required to be paid by Tenant under the Lease.
Procedures. If Tenant desires to assign this Lease or any interest therein
or sublet all or part of the Premises, Tenant shall give Landlord written notice
thereof designating the space proposed to be sublet and the terms proposed.
Landlord shall have the prior right and option (to be exercised by written
notice to Tenant given within fifteen (15) days after receipt of Tenant's
notice) (i) to sublet from Tenant any portion of the Premises proposed by Tenant
to be sublet, for the term for which such portion is proposed to be sublet, but
at the same Rent (including Additional Rent as provided for in Sections 7 and 9)
as Tenant is required to pay to Landlord under this Lease for the same space,
computed on a pro rata square footage basis, and during the term of such
sublease Tenant shall be released of its obligations under the Lease with regard
to the subject space, (ii) if the term of the sublease (including any renewal
terms) will expire during the final eighteen (18) months of the Term (or if
Tenant has exercised a renewal option, if any, then during the final eighteen
(18) months of the subject renewal period), to terminate this Lease as it
pertains to the portion of the Premises so proposed by Tenant to be sublet, or
(iii) to approve Tenant's proposal to sublet conditional upon Landlord's
subsequent written approval of the specific sublease obtained by Tenant and the
specific subtenant named therein. If Landlord exercises its option in (i) above,
then Landlord may, at Landlord's sole cost, construct improvements in the
subject space and, so long as the improvements are suitable for general office
purposes, Landlord shall have no obligation to restore the subject space to its
original condition following the termination of the sublease. If Landlord
exercises its option described in (iii) above, Tenant shall submit to Landlord
for Landlord's written approval Tenant's proposed sublease agreement (in which
the proposed subtenant shall be named) together with a current reviewed or
audited financial statement prepared by a certified public accountant for such
proposed subtenant and a credit report on such proposed subtenant prepared by a
recognized credit reporting agency. If Landlord fails to exercise any aforesaid
option to sublet or to terminate, this shall not be construed as or constitute a
11
waiver of any of the provisions of this Section. If Landlord exercises any such
option to sublet or to terminate, Landlord shall not have any liability for any
real estate brokerage commission(s) or with respect to any of the costs and
expenses that Tenant may have incurred in connection with its proposed
subletting, and Tenant agrees to hold Landlord harmless from and against any and
all claims (including, without limitation, claims for commissions) arising from
such proposed subletting. Landlord's foregoing rights and options shall continue
throughout the Term. For purposes of this Section, a proposed assignment of this
Lease in whole or in part shall be deemed a proposed subletting of such space.
Documentation. No permitted subletting by Tenant shall be effective until
there has been delivered to Landlord a counterpart of the sublease in which the
subtenant agrees to be and remain jointly and severally liable with Tenant for
the payment of Rent pertaining to the sublet space and for the performance of
all of the terms and provisions of this Lease; provided, however, that the
subtenant shall be liable to Landlord for rent only in the amount set forth in
the sublease. No permitted assignment shall be effective unless and until there
has been delivered to Landlord a counterpart of the assignment in which the
assignee assumes all of Tenant's obligations under this Lease arising on or
after the date of the assignment. The failure or refusal of a subtenant or
assignee to execute any such instrument shall not release or discharge the
subtenant or assignee from its liability as set forth above.
No Merger. Without limiting any of the provisions of this Section, if
Tenant has entered into any subleases of any portion of the Premises, the
voluntary or other surrender of this Lease by Tenant, or a mutual cancellation
by Landlord and Tenant, shall not work a merger, and shall, at the option of
Landlord, terminate all or any existing subleases or subtenancies or, at the
option of Landlord, operate as an assignment to Landlord of any or all such
subleases or subtenancies.
Default. The occurrence of any of the following shall constitute a default by
Tenant under this Lease:
Failure to Pay Rent. Failure to pay Rent when due, if the failure continues
for a period of three (3) days after notice of such default has been given by
Landlord to Tenant.
Failure to Comply with Rules and Regulations. Failure to comply with the
Rules and Regulations, if the failure continues for a period of twenty-four (24)
hours after notice of such default is given by Landlord to Tenant. If the
failure to comply cannot reasonably be cured within twenty-four (24) hours, then
Tenant shall not be in default under this Lease if Tenant commences to cure the
failure to comply within twenty-four (24) hours and diligently and in good faith
continues to cure the failure to comply.
Other Defaults. Failure to perform any other provision of this Lease, if
the failure to perform is not cured within thirty (30) days after notice of such
default has been given by Landlord to Tenant. If the default cannot reasonably
be cured within thirty (30) days, then Tenant shall not be in default under this
Lease if Tenant commences to cure the default within thirty (30) days and
diligently and in good faith continues to cure the default.
Appointment of Trustee or Receiver. The appointment of a trustee or
receiver to take possession of substantially all of the Tenant's assets located
at the Premises or of Tenant's interest in this Lease, where possession is not
restored to Tenant within sixty (60) days; or the attachment, execution or other
judicial seizure of substantially all of Tenant's assets located at the Premises
or of Tenant's interest in this Lease, where such seizure is not discharged
within sixty (60) days.
Remedies. If Tenant commits a default, Landlord shall have the following
alternative remedies, which are in addition to any remedies now or later allowed
by law:
Maintain Lease in Force. Maintain this Lease in full force and effect and
recover the Rent and other monetary charges as they become due, without
terminating Tenant's right to possession, irrespective of whether Tenant shall
have abandoned the Premises. If Landlord elects to not terminate the Lease,
Landlord shall have the right to attempt to re-let the Premises at such rent and
upon such conditions and for such a term, and to do all acts necessary to
maintain or preserve the Premises as Landlord deems reasonable and necessary
without being deemed to have elected to terminate the Lease including removal of
all persons and property from the Premises; such property may be removed and
stored in a public warehouse or elsewhere at the cost of and for the account of
Tenant. In the event any such re-letting occurs, this Lease shall terminate
automatically upon the new Tenant taking possession of the Premises.
Notwithstanding that Landlord fails to elect to terminate the Lease initially,
Landlord at any time during the term of this Lease may elect to terminate this
Lease by virtue of such previous default of Tenant.
Terminate Lease. Terminate Tenant's right to possession by any lawful
means, in which case this Lease shall terminate and Tenant shall immediately
surrender possession of the Premises to Landlord. In such event Landlord shall
be entitled to recover from Tenant all damages incurred by Landlord by reason of
Tenant's default including without limitation thereto, the following: (i) The
worth at the time of award of any unpaid Rent which had been earned at the time
of such termination; plus (ii) the worth at the time of award of the amount by
which the unpaid Rent which would have been earned after termination until the
time of award exceeds the amount of such rental loss that Tenant proves could
have been reasonably avoided; plus (iii) the worth at the time of award of the
amount by which the unpaid Rent for the balance of the Term after the time of
award exceeds the amount of such rental loss that is proved could be reasonably
avoided; plus (iv) any other amount necessary to compensate Landlord for all the
detriment proximately caused by Tenant's failure to perform its obligations
under this Lease or which in the ordinary course of things would be likely to
result therefrom, including without limitation, any costs or expenses incurred
by Landlord in (A) retaking possession of the Premises, including reasonable
attorney fees therefor, (B) maintaining or preserving the Premises after such
default, (C) preparing the Premises for reletting to a new tenant, including
repairs or necessary alterations to the Premises for such reletting, (D) leasing
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commissions, and (E) any other costs necessary or appropriate to relet the
Premises; plus (v) at Landlord's election, such other amounts in addition to or
in lieu of the foregoing as may be permitted from time to time by applicable
state law. Upon any such re-entry Landlord shall have the right to make any
reasonable repairs, alterations or modifications to the Premises, which Landlord
in its sole discretion deems reasonable and necessary. As used in Subsection
22(b)(i) the "worth at the time of award" is computed by allowing interest at
the rate of eighteen percent (18%) per year from the date of default. As used in
Subsections 22(b)(ii) and 22(b)(iii) the "worth at the time of award" is
computed by discounting such amounts at the discount rate of eight percent (8%)
per year.
Bankruptcy.
Assumption of Lease. If Tenant becomes a Debtor under Chapter 7 of the
Bankruptcy Code ("Code") or a petition for reorganization or adjustment of debts
is filed concerning Tenant under Chapters 11 or 13 of the Code, or a proceeding
is filed under Chapter 7 of the Code and is transferred to Chapters 11 or 13 of
the Code, the Trustee or Tenant, as Debtor and as Debtor-In-Possession, may not
elect to assume this Lease unless, at the time of such assumption, the Trustee
or Tenant has:
Cured all defaults under the Lease and paid all sums due and owing under
the Lease or provided Landlord with "Adequate Assurance" (as defined below)
that:(i) within ten (10) days from the date of such assumption, the Trustee or
Tenant will completely pay all sums due and owing under this Lease and
compensate Landlord for any actual pecuniary loss resulting from any existing
default or breach of this Lease, including without limitation, Landlord's
reasonable costs, expenses, accrued interest, and attorneys' fees incurred as a
result of the default or breach; (ii) within twenty (20) days from the date of
such assumption, the Trustee or Tenant will cure all non-monetary defaults and
breaches under this Lease, or, if the nature of such non-monetary defaults is
such that more than twenty (20) days are reasonably required for such cure, that
the Trustee or Tenant will commence to cure such non-monetary defaults within
twenty (20) days and thereafter diligently prosecute such cure to completion;
and (iii) the assumption will be subject to all of the provisions of this Lease.
For purposes of this Section, Landlord and Tenant acknowledge that, in the
context of a bankruptcy proceeding involving Tenant, at a minimum, "Adequate
Assurance" shall mean:(i) the Trustee or Tenant has and will continue to have
sufficient unencumbered assets after the payment of all secured obligations and
administrative expenses to assure Landlord that the Trustee or Tenant will have
sufficient funds to fulfill the obligations of Tenant under this Lease; (ii) the
Bankruptcy Court shall have entered an Order segregating sufficient cash payable
to Landlord and/or the Trustee or Tenant shall have granted a valid and
perfected first lien and security interest and/or mortgage in or on property of
Trustee or Tenant acceptable as to value and kind to Landlord, to secure to
Landlord the obligation of the Trustee or Tenant to cure the monetary and/or
non-monetary defaults and breaches under this Lease within the time periods set
forth above; and (iii) the Trustee or Tenant, at the very minimum, shall deposit
a sum equal to two (2) month's Minimum Monthly Rent to be held by Landlord
(without any allowance for interest thereon) to secure Tenant's future
performance under the Lease.
Assignment of Lease. If the Trustee or Tenant has assumed the Lease
pursuant to the provisions of this Section for the purpose of assigning Tenant's
interest hereunder to any other person or entity, such interest may be assigned
only after the Trustee, Tenant or the proposed assignee have complied with all
of the terms, covenants and conditions of this Lease, including, without
limitation, those with respect to Additional Rent. Landlord and Tenant
acknowledge that such terms, covenants and conditions are commercially
reasonable in the context of a bankruptcy proceeding of Tenant. Any person or
entity to which this Lease is assigned pursuant to the provisions of the Code
shall be deemed without further act or deed to have assumed all of the
obligations arising under this Lease on and after the date of such assignment.
Any such assignee shall upon request execute and deliver to Landlord an
instrument confirming such assignment.
Adequate Protection. Upon the filing of a petition by or against Tenant
under the Code, Tenant, as Debtor and as Debtor-In-Possession, and any Trustee
who may be appointed agree to adequately protect Landlord as follows:(i) to
perform each and every obligation of Tenant under this Lease until such time as
this Lease is either rejected or assumed by Order of the Bankruptcy Court; (ii)
to pay all monetary obligations required under this Lease, including without
limitation, the payment of Minimum Monthly Rent, Tenant's Share of Real Property
Taxes, Tenant's Share of Operating Costs and any other sums payable by Tenant to
Landlord under this Lease which is considered reasonable compensation for the
use and occupancy of the Premises; (iii) provide Landlord a minimum of thirty
(30) days prior written notice, unless a shorter period is agreed to in writing
by the parties, of any proceeding relating to any assumption of this Lease or
any intent to abandon the Premises, which abandonment shall be deemed a
rejection of this Lease; and (iv) to perform to the benefit of Landlord as
otherwise required under the Code. The failure of Tenant to comply with the
above shall result in an automatic rejection of this Lease.
Limitation of Actions. Any claim, demand, right or defense of any kind by Tenant
which is based upon or arises in connection with this Lease or the negotiations
prior to its execution, shall be barred unless Tenant commences an action
thereon, or interposes in a legal proceeding a defense by reason thereof, within
one (1) year after the date of the act or omission on which such claim, demand,
right or defense is based.
Limitation on Landlord's Liability. Anything in this Lease to the contrary
notwithstanding, covenants, undertakings and agreements herein made on the part
of Landlord are made and intended not as personal covenants, undertakings and
agreements or for the purpose of binding Landlord personally or the assets of
Landlord except Landlord's interest in the Property, but are made and intended
for the purpose of binding only the Landlord's interest in the Property. No
personal liability or personal responsibility is assumed by, nor shall at any
time be asserted or enforceable against Landlord or its partners and their
respective heirs, legal representatives, successors and assigns on account of
this Lease or on account of any covenant, undertaking or agreement of Landlord
contained in this Lease.
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Signs. Tenant shall not have the right to place, construct or maintain any sign,
advertisement, awning, banner or other exterior decoration without Landlord's
consent. Any sign that Tenant has Landlord's consent to place, construct and
maintain shall comply with all laws, and Tenant shall obtain any approval
required by such laws. Landlord makes no representation with respect to Tenant's
ability to obtain such approval.
Landlord's Right to Enter the Premises. Landlord and its authorized
representatives shall have the right to enter the Premises at reasonable times
and upon reasonable prior notice (except in an emergency when no such notice
shall be required) for any of the following purposes:(i) to determine whether
the Premises are in good condition and whether Tenant is complying with its
obligations under this Lease, (ii) to do any maintenance; to make any
restoration to the Premises or the Building that Landlord has the right or the
obligation to perform, and to make any improvements to the Premises or the
Building that Landlord deems necessary, (iii) to serve, post or keep posted any
notices required or allowed under the provisions of this Lease, (iv) to post any
ordinary "For Sale" signs at any time during the Term and to post any ordinary
"For Lease" signs during the last ninety (90) days of the Term, and (v) to show
the Premises to prospective brokers, agents, purchasers, tenants or lenders, at
any time during the Term.
Landlord shall not be liable in any manner for any inconvenience,
annoyance, disturbance, loss of business, nuisance, or other damage arising out
of Landlord's entry on the Premises as provided in this Section, except damage
resulting from the grossly negligent or willful acts of Landlord or its
authorized representatives. Tenant shall not be entitled to an abatement or
reduction of Rent if Landlord exercises any right reserved in this Section.
Landlord shall conduct its activities on the Premises as allowed in this Section
in a reasonable manner so as to cause minimal inconvenience, annoyance or
disturbance to Tenant.
Subordination. This Lease is and shall be prior to any mortgage recorded after
the date of this Lease affecting the Property. If, however, a lender requires
that this Lease be subordinate to any mortgage, this Lease shall be subordinate
to that mortgage if Landlord first obtains from the lender a written agreement
that provides substantially the following:
"As long as Tenant performs its obligations under
this Lease, no foreclosure of, deed given in lieu
of foreclosure of, or sale under the mortgage, and
no steps or procedures taken under the mortgage,
shall affect Tenant's rights under this Lease. "
Tenant shall attorn to any purchaser at any foreclosure
sale, or to any grantee or transferee designated in any deed
given in lieu of foreclosure. Tenant shall execute the
written agreement and any other documents required by the
lender to accomplish the purposes of this Section.
Right to Estoppel Certificates. Tenant, within ten (10) days after notice from
Landlord, shall execute and deliver to Landlord, in recordable form, a
certificate stating that this Lease is unmodified and in full force and effect,
or in full force and effect as modified and stating the modifications. The
certificate shall also state the amount of Minimum Monthly Rent, the dates to
which Rent has been paid in advance, and the amount of any Prepaid Rent or
Security Deposit and such other matters as Landlord may reasonably request.
Failure to deliver the certificate within such ten (10) day period shall be
conclusive upon Tenant for the benefit of Landlord and any successor to
Landlord, that this Lease is in full force and effect and has not been modified
except as may be represented by Landlord requesting the certificate.
Transfer of Landlord's Interest. If Landlord sells or transfers the Property,
Landlord, on consummation of the sale or transfer, shall be released from any
liability thereafter accruing under this Lease if Landlord's successor has
assumed in writing, for the benefit of Tenant, Landlord's obligations under this
Lease. If any Security Deposit or Prepaid Rent has been paid by Tenant, Landlord
shall transfer such Security Deposit or Prepaid Rent to Landlord's successor and
on such transfer Landlord shall be discharged from any further liability with
respect to such Security Deposit or Prepaid Rent.
Attorneys' Fees. If either party shall bring any action for relief against the
other party, declaratory or otherwise, arising out of this Lease, including any
action by Landlord for the recovery of Rent or possession of the Premises, the
losing party shall pay the successful party a reasonable sum for attorneys' fees
which shall be deemed to have accrued on the commencement of such action and
shall be paid whether or not such action is prosecuted to judgment.
Surrender; Holding Over.
Surrender. On expiration or ten (10) days after termination of the Term,
Tenant shall surrender the Premises and all Tenant's improvements and
alterations to Landlord broom clean and in good condition. Tenant shall remove
all of its trade fixtures and personal property within the time period stated in
this Section. Tenant, at its cost, shall perform all restoration made necessary
by, and repair any damage to the Premises caused by, the removal of its trade
fixtures, personal property and signs to Landlord's reasonable satisfaction
within the time period stated in this Section. Landlord may, at its election,
retain or dispose of in any manner any of Tenant's trade fixtures or personal
property that Tenant does not remove from the Premises on expiration or within
ten (10) days after termination of the Term as allowed or required by the
provisions of this Lease by giving ten (10) days notice to Tenant. Title to any
such trade fixtures and personal property that Landlord elects to retain or
14
dispose of on expiration of such ten (10) day period shall vest in Landlord.
Tenant waives all claims against Landlord for any damage to Tenant resulting
from Landlord's retention or disposition of any such trade fixtures and personal
property. Tenant shall be liable to Landlord for Landlord's costs for storing,
removing and disposing of Tenant's trade fixtures and personal property. If
Tenant fails to surrender the Premises to Landlord on expiration or ten (10)
days after termination of the Term as required by this Section, Tenant shall pay
Landlord Rent in an amount equal to twice the Minimum Monthly Rent applicable
for the month immediately prior to the expiration or termination of the Term for
the entire time Tenant thus remains in possession and Tenant shall hold Landlord
harmless from all damages resulting from Tenant's failure to timely surrender
the Premises, including without limitation, (i) any Rent payable by, or any
damages claimed by, any prospective tenant of any part or all of the Premises,
and (ii) Landlord's damages resulting from such prospective tenant rescinding or
refusing to enter into the prospective lease of part or all of the Premises by
reason of Tenant's failure to timely surrender the Premises. If Tenant, without
Landlord's prior consent, remains in possession of the Premises after expiration
or termination of the Term, or after the date in any notice given by Landlord to
Tenant terminating this Lease, such possession by Tenant shall be deemed to be a
tenancy at sufferance terminable at any time by either party.
Holding Over with Landlord's Consent. If Tenant, with Landlord's prior
consent, remains in possession of the Premises after expiration or termination
of the Term, or after the date in any notice given by Landlord to Tenant
terminating this Lease, such possession by Tenant shall be deemed to be a
month-to-month tenancy terminable by Landlord by a notice given to Tenant at
least twenty (20) days prior to the end of any such monthly period or by Tenant
by a notice given to Landlord at least thirty (30) days prior to the end of any
such monthly period. During such month-to-month tenancy, Tenant shall pay Rent
in the amount then agreed to in writing by Landlord and Tenant. All provisions
of this Lease, except those pertaining to term, shall apply to the
month-to-month tenancy.
Agency Disclosure; Broker.
Agency Disclosure. Xxxxxx Xxxxx Inc hereby discloses that it represents the
Landlord in this transaction.
Broker. Landlord and Tenant each represent to the other that neither is
represented by any broker, agent or finder with respect to this Lease in any
manner, except the Broker(s). The commission due to the Broker(s) shall be paid
by Landlord pursuant to a separate agreement. Each party agrees to indemnify and
hold the other party harmless from and against any and all liability, costs,
damages, causes of action or other proceedings instituted by any broker, agent
or finder, licensed or otherwise, claiming through, under or by reason of the
conduct of the indemnifying party in any manner whatsoever in connection with
this Lease. If Tenant engages a broker, agent or finder to represent Tenant in
connection with any renewal of this Lease, then the commission or any fee of
such broker, agent or finder shall be paid by Tenant.
Interest on Unpaid Rent. In addition to the Late Charge as provided in Section
5(b), Rent not paid when due shall bear interest from the date due until paid at
the rate of eighteen percent (18%) per year, or the maximum legal rate of
interest, whichever is less.
Consent. Whenever the consent of either Landlord or Tenant is required under
this Lease, such consent shall not be effective unless given in writing and
shall not be unreasonably withheld or delayed, provided, however, that such
consent may be conditioned as provided in this Lease.
Parking. Landlord grants Tenant the right to use the number of parking stalls
provided for in Section 1 of this Lease. Each parking stall provided to Tenant
shall be unassigned, except as may be expressly provided otherwise in Section 1
of this Lease. Tenant's parking privilege under this Lease shall be subject to
such rules and regulations as Landlord and/or Landlord's parking operator may
adopt from time to time. Landlord retains the right to alter such rules and
regulations and to relocate within a reasonable distance, or to reconfigure, the
parking area in which Tenants parking stall(s) are located, with reasonable
notice to Tenant, but Landlord shall at all times continue to provide the
designated number of parking stall(s) to Tenant. Tenant shall pay, upon demand
by Landlord, Landlord's costs incurred to stencil any reserved parking stall(s)
provided to Tenant under this Lease.
Definitions. As used in this Lease, the following words and phrases, whether or
not capitalized, shall have the following meanings:
"Additional Rent" means pass-throughs of increases in Operating Costs and
Taxes, as defined in this Lease, and other monetary sums to be paid by Tenant to
Landlord under the provisions of this Lease.
"Alteration" means any addition or change to, or modification of, the
Premises made by Tenant, including without limitation, fixtures, but excluding
trade fixtures as defined in this Section.
"Authorized representatives" means any officer, agent, employee,
independent contractor or invitee of either party.
"Award" means all compensation, sums or anything of value awarded, paid or
received on a total or partial condemnation.
"Common Areas" means all areas outside the Premises and within the Building
or on the Land that are provided and designated by Landlord from time to time
for the general, non-exclusive use of Landlord, Tenant and other tenants of the
Building and their authorized representatives, including without limitation,
common
15
entrances, lobbies, corridors, stairways and stairwells, elevators,
escalators, public restrooms and other public portions of the Building.
"Condemnation" means the exercise of any governmental power, whether by
legal proceedings or otherwise, by a condemnor and a voluntary sale or transfer
by Landlord to any condemnor, either under threat of condemnation or while legal
proceedings for condemnation are pending.
"Condemnor" means any public or quasi-public authority or entity having the
power of condemnation.
"Damage" means any injury, deterioration, or loss to a person, property,
the Premises or the Building caused by another person's acts or omissions or by
Acts of God. Damage includes death.
"Damages" means a monetary compensation or indemnity that can be recovered
in the courts by any person who has suffered damage to his person, property or
rights through another's acts or omissions.
"Date of taking" means the date the condemnor has the right to possession
of the property being condemned.
"Encumbrance" means any mortgage, deed of trust or other written security
device or agreement affecting the Premises, and the note or other obligation
secured by it, that constitutes security for the payment of a debt or
performance of an obligation.
"Expiration" means the coming to an end of the time specified in the Lease
as its duration, including any extension of the Term.
"Force majeure" means strikes, lockouts, labor disputes, shortages of labor
or materials, fire or other casualty, Acts of God or any other cause beyond the
reasonable control of a party.
"Good condition" means the good physical condition of the Premises and each
portion of the Premises, including without limitation, all of the Tenant
Improvements, Tenant's alterations, Tenant's trade fixtures, Tenant's Personal
Property, all as defined in this Section, signs, walls, interior partitions,
windows, window coverings, glass, doors, carpeting and resilient flooring,
ceiling tiles, plumbing fixtures and lighting fixtures, all of which shall be in
conformity with building standard finishes, ordinary wear and tear, damage by
fire or other casualty and taking by condemnation excepted.
"Hazardous substances" means any industrial waste, toxic waste, chemical
contaminant or other substance considered hazardous, toxic or lethal to persons
or property or designated as hazardous, toxic or lethal to persons or property
under any laws, including without limitation, asbestos material or materials
containing asbestos.
"Hold harmless" means to defend and indemnify from all liability, losses,
penalties, damages as defined in this Section, costs, expenses (including
without limitation, attorneys' fees), causes of action, claims or judgments
arising out of or related to any damage, as defined in this Section, to any
person or property.
"Law" means any constitution, statute, ordinance, regulation, rule,
resolution, judicial decision, administrative order or other requirement of any
federal, state, county, municipal or other governmental agency or authority
having jurisdiction over the parties or the Property, or both, in effect either
at the time of execution of this Lease or at any time during the Term, including
without limitation, any regulation or order of a quasi-official entity or body
(e.g., board of fire examiners or public utilities) and any legally effective
conditions, covenants or restrictions affecting the Property.
"Lender" means the mortgagee, beneficiary, secured party or other holder of
an encumbrance, as defined in this Section.
"Lien" means a charge imposed on the Premises by someone other than
Landlord, by which the Premises are made security for the performance of an act.
"Maintenance" means repairs, replacement, repainting and cleaning.
"Mortgage" means any deed of trust, mortgage or other written security
device or agreement affecting the Premises, and the note or other obligation
secured by it, that constitutes security for the payment of a debt or
performance of an obligation.
"Mortgagee" means the beneficiary under a deed of trust or mortgagee under
a mortgage.
"Mortgagor" means the grantor or trustor under a deed of trust or mortgagor
under a mortgage.
"Operating Costs" means all costs of any kind incurred by Landlord in
operating, cleaning, equipping, protecting, lighting, repairing, replacing,
heating, air-conditioning, maintaining and insuring the Property. Operating
Costs shall include, without limitation, the following costs:(i) salaries,
wages, bonuses and other compensation (including hospitalization, medical,
surgical, retirement plan, pension plan, union dues, life insurance, including
group life insurance, welfare and other fringe benefits, and vacation, holidays
and other paid absence benefits) relating to employees of Landlord or its agents
directly engaged in the operation, repair, or maintenance of the Property; (ii)
payroll, social security, workers' compensation, unemployment and similar
16
taxes with respect to such employees of Landlord or its authorized
representatives, and the cost of providing disability or other benefits imposed
by law or otherwise, with respect to such employees; (iii) uniforms (including
the cleaning, replacement and pressing thereof) provided to such employees; (iv)
premiums and other charges incurred by Landlord with respect to fire,
earthquake, other casualty, all risk, rent loss and liability insurance, any
other insurance as is deemed necessary or advisable in the reasonable judgment
of Landlord and, after the Base Year, costs of repairing an insured casualty to
the extent of the deductible amount under the applicable insurance policy; (v)
water charges and sewer rents or fees; (vi) license, permit and inspection fees;
(vii) sales, use and excise taxes on goods and services purchased by Landlord in
connection with the operation, maintenance or repair of the Property and
Building systems and equipment; (viii) telephone, facsimile, messenger, express
delivery service, postage, stationery supplies and other expenses incurred in
connection with the operation, management, maintenance, or repair of the
Property; (ix) property management fees and expenses; (x) repairs to and
physical maintenance of the Property, including building systems and
appurtenances thereto and normal repair and replacement of worn-out equipment,
facilities and installations, but excluding the replacement of major building
systems (except to the extent provided in (xvi) and (xvii) below); (xi)
janitorial, window cleaning, security, extermination, water treatment, rubbish
removal, plumbing and other services and inspection or service contracts for
elevator, electrical, HVAC, mechanical and other building equipment and systems
or as may otherwise be necessary or proper for the operation or maintenance of
the Property; (xii) supplies, tools, materials, and equipment used in connection
with the operation, maintenance or repair of the Property; (xiii) accounting,
legal and other professional fees and expenses; (xiv) painting the exterior or
the public or common areas of the Building and the cost of maintaining the
sidewalks, landscaping and other common areas of the Property; (xv) all costs
and expenses for electricity, chilled water, air conditioning, water for
heating, gas, fuel, steam, heat, lights, power and other energy related
utilities required in connection with the operation, maintenance and repair of
the Property; (xvi) the cost of any improvements which Landlord elects to
capitalize made by Landlord to the Property during the Term in compliance with
the requirements of any laws or regulation or insurance requirement with which
the Property was not required to comply during the Base Year, as reasonably
amortized by Landlord, with interest on the unamortized balance at the rate of
twelve percent (12%) per year, or the maximum legal rate of interest, whichever
is less; (xvii) the cost of any improvements which Landlord elects to capitalize
made by Landlord to the Property during the term of this Lease for the
protection of the health and safety of the occupants of the Property or that are
intended to reduce other Operating Costs, as reasonably amortized by Landlord,
with interest on the unamortized balance at the rate of twelve percent (12%) per
year, or the maximum legal rate of interest, whichever is less; (xviii) a
reasonable reserve for repair or replacement of equipment used in the
maintenance or operation of the Property; (xix) the cost of furniture,
draperies, carpeting, landscaping and other customary and ordinary items of
personal property (excluding paintings, sculptures and other works of art)
provided by Landlord for use in common areas of the Building or in the Building
office (to the extent that such Building office is dedicated to the operation
and management of the Property), such costs to be amortized over the useful life
thereof; (xx) any such expenses and costs resulting from substitution of work,
labor, material or services in lieu of any of the above itemizations, or for any
such additional work, labor, services or material resulting from compliance with
any laws or orders applicable to the Property; (xxi) Building office rent or
rental value; and (xxii) all other costs which, in accordance with generally
accepted accounting principles used by Landlord, as applied to the maintenance
and operation of office and/or retail buildings, are properly chargeable to the
operation and maintenance of the Property.
Operating Costs shall not include the following:(i) depreciation on the
Building; (ii) debt service; (iii) capital improvements, except as otherwise
provided in clauses (xvi) and (xvii) above, (iv) rental under any ground or
underlying leases; (v) Real Property Taxes, (vi) attorneys' fees and expenses
incurred in connection with lease negotiations with prospective tenants; (vii)
the cost of tenant improvements; (viii) advertising expenses; or (ix) real
estate broker's or other leasing commissions.
"Parties" means Landlord and Tenant.
"Party" means Landlord or Tenant.
"Person" means one or more human beings, or legal entities or other
artificial persons, including without limitation, partnerships, corporations,
trusts, estates, associations and any combination of human beings and legal
entities.
"Property" means the Premises, Building, Project, and Land.
"Provision" means any term, agreement, covenant, condition, clause,
qualification, restriction, reservation, or other stipulation in the Lease that
defines or otherwise controls, establishes, or limits the performance required
or permitted by either party.
"Real Property Taxes" means any form of tax, assessment, general
assessment, special assessment, lien, levy, bond obligation, license fee,
license tax, tax or excise on rent, or any other levy, charge or expense,
together with any statutory interest thereon, (individually and collectively,
the "Impositions"), now or hereafter imposed or required by any authority having
the direct or indirect power to tax, including any federal, state, county or
city government or any school, agricultural, lighting, drainage or other
improvement or special assessment district thereof, (individually and
collectively, the "Governmental Agencies") on any interest of Landlord or Tenant
or both (including any legal or equitable interest of Landlord or its mortgagee,
if any) in the Premises or the Property, including without limitation:
any Impositions upon, allocable to or measured by the area of the Premises
or the Property, or the rental payable hereunder, including without limitation,
any gross income tax or excise tax levied by any Governmental Agencies with
respect to the receipt of such rental; or
16
any Impositions upon or with respect to the possession, leasing, operation,
management, maintenance, alteration, repair or use or occupancy by Tenant of the
Premises or any portion thereof; or
any Impositions upon or with respect to the building equipment and personal
property used in connection with the operation and maintenance of the Property
or upon or with respect to the furniture, fixtures and decorations in the common
areas of the Property.
any Impositions upon this Lease or this transaction or any document to
which Tenant is a party creating or transferring an interest or an estate in the
Premises; or
any Impositions by Governmental Agencies (whether or not such Impositions
constitute tax receipts) in substitution, partially or totally, of any
impositions now or previously included within the definition of real property
taxes, including those calculated to increase tax increments to Governmental
Agencies and to pay for such services as fire protection, water drainage,
street, sidewalk and road maintenance, refuse removal or other governmental
services formerly provided without charge to property owners or occupants; or
any and all costs, including without limitation, the fees of attorneys, tax
consultants and experts, incurred by Landlord should Landlord elect to negotiate
or contest the amount of such real property taxes in formal or informal
proceedings before the Governmental Agency imposing such real property taxes;
provided, however, that real property taxes shall in no event include Landlord's
general income, inheritance, estate, gift or franchise taxes.
"Rent" means Minimum Monthly Rent, as adjusted from time to time under this
Lease, Additional Rent, Prepaid Rent, Security Deposit, all as defined in this
Section, payments of Tenant's Share of increases in Real Property Taxes and
Operating Costs, insurance, utilities and other charges payable by Tenant to
Landlord.
"Rentable square feet of space" as to the Premises or the Building, as the
case may be, means the number of usable square feet of space times the
applicable R/U Ratio(s) as defined in this Section.
"Restoration" means the reconstruction, rebuilding, rehabilitation and
repairs that are necessary to return damaged portions of the Premises and the
Building to substantially the same physical condition as they were in
immediately before the damage.
"R/U Ratio" means the rentable area of a floor of the Building divided by
the usable area of such floor, both of which shall be computed in accordance
with American National Standard X00.0-0000 Xxxxxx of Measuring Floor Space in
Office Buildings as published by the Building Owners and Managers Association,
as amended from time to time.
"Substantially complete" or "substantially completed" or "substantial
completion" means the completion of Landlord's construction obligation, subject
to completion or correction of "punch list" items, that is, minor items of
incomplete or defective work or materials or mechanical maladjustments that are
of such a nature that they do not materially interfere with or impair Tenant's
use of the Premises for the Permitted Use.
"Successor" means assignee, transferee, personal representative, heir, or
other person or entity succeeding lawfully, and pursuant to the provisions of
this Lease, to the rights or obligations of either party.
"Tenant Improvements" means (i) the improvements and alterations set forth
in Exhibit C, (ii) window coverings, lighting fixtures, plumbing fixtures,
cabinetry and other fixtures installed by either Landlord or Tenant at any time
during the Term, and (iii) any improvements and alterations of the Premises made
for Tenant by Landlord at any time during the Term.
"Tenant's personal property" means Tenant's equipment, furniture, and
movable property placed in the Premises by Tenant.
"Tenant's trade fixtures" means any property attached to the Premises by
Tenant.
"Termination" means the ending of the Term for any reason before
expiration, as defined in this Section.
"Work" means the construction of any improvements or alterations or the
performance of any repairs done by Tenant or caused to be done by Tenant on the
Premises as permitted by this Lease.
Miscellaneous Provisions.
Entire Agreement. This Lease sets forth the entire agreement of the parties
as to the subject matter hereof and supersedes all prior discussions and
understandings between them. This Lease may not be amended or rescinded in any
manner except by an instrument in writing signed by a duly authorized officer or
representative of each party hereto.
Governing Law. This Lease shall be governed by, and construed and enforced
in accordance with, the laws of the State of Washington.
17
Severability. Should any of the provisions of this Lease be found to be
invalid, illegal or unenforceable by any court of competent jurisdiction, such
provision shall be stricken and the remainder of this Lease shall nonetheless
remain in full force and effect unless striking such provision shall materially
alter the intention of the parties.
Jurisdiction. In the event any action is brought to enforce any of the
provisions of this Lease, the parties agree to be subject to exclusive in
personam jurisdiction in the Superior Court, King County, for the State of
Washington or in the United States District Court for the Western District of
Washington and agree that in any such action venue shall lie exclusively at
Seattle, Washington.
Waiver. No waiver of any right under this Lease shall be effective unless
contained in a writing signed by a duly authorized officer or representative of
the party sought to be charged with the waiver and no waiver of any right
arising from any breach or failure to perform shall be deemed to be a waiver of
any future right or of any other right arising under this Lease.
Captions. Section captions contained in this Lease are included for
convenience only and form no part of the agreement between the parties.
Notices. All notices or requests required or permitted under this Lease
shall be in writing. If given by Landlord such notices or requests may be
personally delivered or sent by certified mail, return receipt requested,
postage prepaid. If given by Tenant such notices or requests shall be sent by
certified mail, return receipt requested, postage prepaid. Such notices or
requests shall be deemed given when so delivered or mailed, irrespective of
whether such notice or request is actually received by the addressee. All
notices or requests to Landlord shall be sent to Landlord at Landlord's Address
for Notice and all notices or requests to Tenant shall be sent to Tenant at
Tenant's Address for Notice. Either party may change the address to which
notices shall be sent by notice to the other party.
Binding Effect. Subject to the provisions of Section 20 captioned
"Assignment and Subletting", this Lease shall be binding upon, and inure to the
benefit of, the parties hereto and their respective successors and assigns. No
permitted assignment of this Lease or Tenant's rights hereunder shall be
effective against Landlord unless and until an executed counterpart of the
instrument of assignment shall have been delivered to Landlord and Landlord
shall have been furnished with the name and address of the assignee. The term
"Tenant" shall be deemed to include the assignee under any such permitted
assignment.
Effectiveness. This Lease shall not be binding or effective until properly
executed and delivered by Landlord and Tenant.
Gender and Number. As used in this Lease, the masculine shall include the
feminine and neuter, the feminine shall include the masculine and neuter, the
neuter shall include the masculine and feminine, the singular shall include the
plural and the plural shall include the singular, as the context may require.
Time of the Essence. Time is of the essence in the performance of all
covenants and conditions in this Lease for which time is a factor.
Dated the date first above written.
Landlord: Tenant:
The City of Seattle, a Washington Microvision, Inc., a Washington
municipal corporation corporation
By__________________________________ By_____________________________________
Xxxxxx X. Xxxxxx
Director Its____________________________________
Executive Services Department
By_____________________________________
Its____________________________________
This Lease has been prepared for submission to you and your attorney. Xxxxxx
Xxxxx Inc is not authorized to give legal or tax advice. Neither Landlord nor
Xxxxxx Xxxxx Inc makes any representations or recommendations as to the legal
sufficiency, legal effect or tax consequences of this document or any
transaction relating thereto. These are questions for your attorney with whom
you should consult before signing the document to determine whether your legal
rights are adequately protected.
19
EXHIBIT A
LEGAL DESCRIPTION
[Omitted]
20
EXHIBIT B
FLOOR PLAN
[Omitted]
21
EXHIBIT C
WORK LETTER
This Work Letter is made and entered into this 1st day of December 1997 by
and between The City of Seattle, a Washington municipal corporation
("Landlord"), and Microvision, Inc., a Washington corporation ("Tenant").
RECITALS: Landlord and Tenant have entered into a Lease dated of even date
herewith covering certain Premises designated as Suite 110 in Building A of the
Park 90/5 complex located in Seattle, Washington (the "Lease"). The Lease
contemplates the construction by Tenant of certain improvements to the Premises.
Landlord and Tenant desire to set forth their agreement as to construction of
such improvements in writing and hereby agree as follows:
The Work. Under the Lease, Tenant has agreed to accept the Premises "AS IS,"
without any obligations for the performance of improvements or other work by
Landlord, and Tenant desires to perform certain improvements thereto (the
"Work"). Such Work shall be in accordance with the provisions of this Work
Letter, and to the extent not expressly inconsistent herewith, in accordance
with the provisions of the Lease. Performance of the Work shall not serve to
xxxxx or extend the time for the commencement of Rent under the Lease, except to
the extent Landlord delays approvals beyond the times permitted.
Cost of the Work. Except as provided hereinafter, Tenant shall pay all costs
(the "Cost of the Work") associated with the Work whatsoever, including without
limitation, all permits, inspection fees, fees of space planners, architects,
engineers, and contractors, utility connections, the cost of all labor and
materials, bonds, insurance, and any structural or mechanical work, additional
HVAC equipment or sprinkler heads, or modifications to any building mechanical,
electrical, plumbing or other systems and equipment or relocation of any
existing sprinkler heads, either within or outside the Premises required as a
result of the layout, design, or construction of the Work.
Space Plan and Working Drawings. Tenant shall submit a "Space Plan and Working
Drawings" to Landlord for review and approval prior to commencement of the Work.
Change Orders. No changes, modifications, alterations or additions to the
approved Space Plan or Working Drawings may be made without the prior written
consent of the Landlord after written request therefor by Tenant. In the event
that the Premises are not constructed in accordance with said approved Space
Plan and Working Drawings, then Tenant shall not be permitted to occupy the
Premises until the Premises reasonably comply in all respects with said approved
Space Plan and Working Drawings; in such case, the Rent shall nevertheless
commence to accrue and be payable as otherwise provided in the Lease.
Compliance. Tenant's Work shall comply in all respects with the following: (a)
the Building Code of the City and State in which the Building is located and
State, County, City or other laws, codes, ordinances and regulations, as each
may apply according to the rulings of the controlling public official, agent or
other such person, (b) applicable standards of the National Board of Fire
Underwriters and National Electrical Code, and (c) building material
manufacturer's specifications.
Performance.
Tenant's Work shall be performed in a thoroughly safe, first-class and
workmanlike manner in conformity with the approved Space Plan and Working
Drawings, and shall be in good and usable condition at the date of completion.
Tenant shall be required to obtain and pay for all necessary permits and/or
fees with respect to Tenant's Work, and the same shall be shown to Landlord
prior to commencement of the Work.
Landlord shall have the right to require Tenant to furnish bonds or other
security in form and amount reasonably satisfactory to Landlord for the prompt
and faithful performance and payment for Tenant's Work.
If contemplated or permitted under the statutes of the State in which the
Property is located, within ten (10) days after completion of construction of
Tenant's Work, Tenant shall execute and file a Notice of Completion with respect
thereto and furnish a copy thereof to Landlord upon recordation, failing which,
Landlord may itself execute and file the same on behalf of Tenant as Tenant's
agent for such purpose.
Copies of "as built" drawings shall be provided to Landlord no later than
thirty (30) days after completion of the Work.
Landlord's approval of Tenant's plans and specifications, and Landlord's
recommendations or approvals concerning contractors, subcontractors, space
planners, engineers or architects, shall not be deemed a warranty as to the
quality or adequacy of the Work, or the design thereof, or of its compliance
with Laws, codes and other legal requirements.
Landlord shall not be responsible for any disturbance or deficiency created
in the air conditioning or other mechanical, electrical or structural facilities
within the Property or Premises as a result of the Work.
22
If such disturbances or deficiencies result, Tenant shall correct the same and
restore the services to Landlord's reasonable satisfaction, within a reasonable
time.
If performance of the Work shall require that additional services or
facilities (including without limitation, extra or after-hours elevator usage or
cleaning services) be provided, Tenant shall pay Landlord's reasonable charges
therefor.
Tenant's contractors shall comply with the rules of the Property and
Landlord's requirements respecting the hours of availability of elevators and
manner of handling materials, equipment and debris. Demolition must be performed
after 6:00 p.m. Monday through Friday or on weekends. Delivery of materials,
equipment and removal of debris must be arranged to avoid any inconvenience or
annoyance to other occupants. The Work and all cleaning in the Premises must be
controlled to prevent dirt, dust or other matter from infiltrating into adjacent
tenant or mechanical areas.
Insurance. All contractors and sub-contractors shall carry Worker's Compensation
Insurance covering all of their respective employees in the statutory amounts,
Employer's Liability Insurance in the amount of at least $500,000 per
occurrence, and comprehensive general liability insurance of at least $3,000,000
combined single limit for bodily injury, death, or property damage: and the
policies therefor shall cover Landlord and Tenant, as additional insureds, as
well as the contractor or subcontractor. Tenant shall carry builder's risk
insurance coverage respecting the construction and improvements to be made by
Tenant, in the amount of the anticipated cost of construction of the Work (or
any guaranteed maximum price). All insurance carriers hereunder shall be rated
at least A and X in Best's Insurance Guide. Certificates for all such insurance
shall be delivered to Landlord before the construction is commenced or
contractor's equipment is moved onto the Property. All policies of insurance
must require that the carrier give Landlord twenty (20) days' advance written
notice of any cancellation or reduction in the amounts of insurance. In the
event that during the course of Tenant's Work any damage shall occur to the
construction and improvements being made by Tenant, then Tenant shall repair the
same at Tenant's cost.
Asbestos. If the Property was constructed at a time when asbestos was commonly
used in construction, Tenant acknowledges that asbestos-containing materials
("ACM") may be present at the Property, and that airborne asbestos fibers may
involve a potential health hazard unless proper procedures are followed. In such
case, before commencing the Work, Tenant and its contractor shall consult with
Landlord and Landlord's asbestos consultant concerning appropriate procedures to
be followed. Landlord shall, at Tenant's expense, undertake any necessary
initial asbestos-related work, before Tenant commences the Work. During
performance of the Work, Tenant shall require that its contractor comply with
all laws, rules, regulations and other governmental requirements, as well as all
directives of Landlord's asbestos consultant, respecting ACM. Tenant hereby
irrevocably appoints Landlord and Landlord's asbestos consultant as Tenant's
attorney-in-fact for purposes of supervising and directing any asbestos-related
aspects of the Work (but such appointment shall not relieve Tenant from its
obligations hereunder, nor impose any affirmative requirement on Landlord to
provide such supervision or direction).
Liens. Tenant shall pay, or cause to be paid, all costs of labor, services
and/or materials supplied in connection with any Work. Tenant shall keep the
Property free and clear of all mechanics' liens and other liens resulting from
any Work. Tenant shall have the right to contest the correctness or validity of
any such lien if, immediately on demand by Landlord, it procures and records a
lien release bond issued by a responsible corporate surety in an amount equal to
one and one-half times the amount of the claim of lien or furnishes other
security for payment of such lien satisfactory to Landlord. Tenant shall
promptly pay or cause to be paid all sums awarded to the claimant on its suit,
and, in any event, before any execution is issued with respect to any judgment
obtained by the claimant in its suit or before such judgment becomes a lien on
the Property, whichever is earlier. If Tenant shall be in default under this
Section, by failing to provide security for or satisfaction of any mechanic's or
other liens, then Landlord may (but shall not be obligated to), in addition to
any other rights or remedies it may have, discharge said lien by (i) paying the
claimant an amount sufficient to settle and discharge the claim, (ii) procuring
and recording a lien release bond, or (iii) taking such other action as Landlord
shall deem necessary or advisable, and, in any such event, Tenant shall pay as
Additional Rent, on Landlord's demand, all costs (including reasonable attorney
fees) incurred by Landlord in settling and discharging such lien together with
interest thereon in accordance with Section 39 of the Lease, from the date of
Landlord's payment of said costs. Landlord's payment of such costs shall not
waive any default of Tenant under this Section. Nothing contained herein shall
authorize Tenant to do any act which shall subject Landlord's title to the
Property or Premises to any liens or encumbrances whether claimed by operation
of law or express or implied contract. Any claim to a lien or encumbrance upon
the Property or Premises arising in connection with the Work shall be null and
void, or, at Landlord's option, shall attach only against Tenant's interest in
the Premises and shall in all respects be subordinate to Landlord's title to the
Property and Premises.
Indemnity. Tenant shall indemnify, defend and hold harmless Landlord (and
Landlord's principals, partners, agents, trustees, beneficiaries. officers,
employees and affiliates) from and against any claims, demands, losses, damages,
injuries, liabilities, expenses, judgments, liens, encumbrances, orders, and
awards, together with attorneys' fees and litigation expenses arising out of or
in connection with the Work, or Tenant's failure to comply with the provisions
hereof, or any failure by Tenant's contractors, subcontractors or their
employees to comply with the provisions hereof, except to the extent caused by
Landlord's intentional or negligent acts.
Taxes. Tenant shall pay prior to delinquency all taxes, charges or other
governmental impositions (including without limitation, any real estate taxes or
assessments, sales tax or value added tax)
24
assessed against or levied upon Tenant's fixtures, furnishings, equipment and
personal property located in the Premises and the Work to the Premises under
this Agreement. Whenever possible, Tenant shall cause all such items to be
assessed and billed separately from the property of Landlord. In the event any
such items shall be assessed and billed with the property of Landlord, Tenant
shall pay its share of such taxes, charges or other governmental impositions to
Landlord within thirty (30) days after Landlord delivers a statement and a copy
of the assessment or other documentation showing the amount of such impositions
applicable to Tenant.
INCORPORATED INTO LEASE; DEFAULT. THE PARTIES AGREE THAT THE PROVISIONS OF THIS
Work Letter ARE HEREBY INCORPORATED BY THIS REFERENCE INTO THE LEASE FULLY AS
THOUGH SET FORTH THEREIN. In the event of any express inconsistencies between
the Lease and this Work Letter, the latter shall govern and control. If Tenant
shall default under this Work Letter, Landlord may order that all Work being
performed in the Premises be stopped immediately, and that no further deliveries
to the Premises be made, until such default is cured, without limitation as to
Landlord's other remedies. Any amounts payable by Tenant to Landlord hereunder
shall be paid as Additional Rent under the Lease. Any default by the other party
hereunder shall constitute a default under the Lease and shall be subject to the
remedies and other provisions applicable thereto under the Lease.
Dated the date first above written.
Landlord: Tenant:
The City of Seattle, a Washington Microvision, Inc., a Washington
municipal corporation corporation
By________________________________________ By_________________________________
Xxxxxx X. Xxxxxx
Director Its________________________________
Executive Services Department
By_________________________________
Its_______________________________
24
RIDER
This Rider is part of that certain Lease dated December 1, 1997 (the "Lease") by
and between The City of Seattle, a Washington municipal corporation
("Landlord"), and Microvision, Inc., a Washington corporation ("Tenant"),
covering certain Premises designated as Suite 110 in Building A of the Park 90/5
complex located in Seattle, Washington. Landlord and Tenant further agree as
follows:
39. Option to Extend. Landlord hereby grants to Tenant the right, at its option,
to extend the Term for one (1) period of two (2) years commencing January 15,
1999 and ending January 14, 2001 (the "Extended Term") upon each and all of the
following terms and conditions:
(a) Tenant gives to Landlord, and Landlord actually receives, on or before
August 14, 1998, a written notice of the exercise of the option to extend the
Term (the "Notice of Exercise"), time being of the essence. If the Notice of
Exercise is not so given and received, this option shall automatically expire
and be of no further force and effect.
(b) Tenant is not in default under this Lease either at the time the Notice
of Exercise is given and received or as of the date that the Extended Term would
commence.
(c) All the terms and conditions of this Lease shall apply, except where
specifically modified by this option.
(d) Tenant shall provide Landlord, simultaneously with the Notice of
Exercise, Tenant's most recent audited and monthly unaudited financial
statements, bank references, Dun & Bradstreet report, and a balance sheet
certified as being true by Tenant's chief financial officer. If, in Landlord's
reasonable discretion, Landlord determines from any of the foregoing material
that the creditworthiness of Tenant is materially less than the creditworthiness
of Tenant as of the date of execution of this Lease, Landlord may reject
Tenant's exercise of this Option to Extend by written notice to Tenant, and upon
such rejection this Option to Extend shall become null and void and be of no
further force or effect, and this Lease shall expire on January 14, 1999.
(e) The monthly Base Rent payable during the Extended Term shall be
mutually agreed upon between Landlord and Tenant based on the then prevailing
market rate rental for comparable space and term in the Building or other
comparable buildings located in the area of the Property for present commitments
to lease space at the time the Extended Term would commence, within sixty (60)
days after Tenant gives the Notice of Exercise, and, if not agreed upon within
such period, as it may be extended by mutual agreement of the parties. In no
event, however, shall the monthly Base Rent be less than the Base Rent paid
during the last year of the initial Lease Term. In the event Landlord and Tenant
are unable to negotiate a mutually acceptable market rental rate for the
Extended Term within such sixty (60) day period, this Option to Extend shall
become null and void and be of no further force or effect, and this Lease shall
expire on January 14, 1999.
(f) Tenant agrees that the amount of the Security Deposit payable by Tenant
for the Extended Term shall be increased to an amount equal to the first monthly
installment of Base Rent payable by Tenant in the first month of the Extended
Term.
40. Nondiscrimination and Affirmative Action. Tenant shall comply with all
federal, state, and local laws and ordinances prohibiting discrimination with
regard to race, color, national origin, ancestry, creed, religion, political
ideology, sex, sexual orientation, marital status, or the presence of any
sensory, mental or physical handicap.
Dated the date first above written.
Landlord: Tenant:
The City of Seattle, a Washington Microvision, Inc., a Washington
municipal corporation corporation
By:____________________________________ By:________________________________
Xxxxxx X. Xxxxxx
Director, Its:_______________________________
Executive Services Department
By:________________________________
Its:_______________________________
25
