Exhibit 10.1
AGREEMENT CONCERNING LEASES
THIS AGREEMENT CONCERNING LEASES ("this Agreement") is made and entered
into as of June 27, 2000, by and between XXXXX FOUNDATION, a Washington
501(c)(3) non-profit corporation ("Xxxxx"), and AVENUE A, INC., a Washington
corporation ("Avenue A").
RECITALS
X. Xxxxx and Avenue A are parties to that certain Lease Agreement (Xxxxx
Tower) dated the 16th day of July, 1999 with respect to approximately 44,112
square feet of rentable area (consisting of the area on the 4th, 7th, 8th and
9th floors of the building) in the Xxxxx Tower located at 000 Xxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxxxx, xx the real property more particularly described as
follows:
Xxxx 0 xxx 0, Xxxxx 0, Xxxx of Seattle, as laid out on claims of X.X. Xxxxx
and X.X. Xxxxx (commonly known as Xxxxx and Denny's Addition to the City of
Seattle), according to the plat thereof recorded in Volume 1 of Plats, page
27, in King County, Washington; EXCEPT that portion of said Lots taken for
widening of Second Avenue by judgement entered in District Court Cause No.
7097 pursuant to Ordinance No. 1107, of the City of Seattle.
The foregoing lease is referred to as the "Xxxxx Tower Lease." The parties
have amended the Xxxxx Tower Lease from time to time, including a Second
Amendment to the Xxxxx Tower Lease dated January 31, 2000 ("Second Amendment to
Xxxxx Tower Lease") by which the term of the Xxxxx Tower Lease was extended.
X. Xxxxx and Avenue A are also parties to that certain Lease Agreement
(Xxxxxxx Building) dated the 21st day of December, 1999 with respect to
approximately 29,992 square feet of rentable area (consisting of the area on the
2nd, 3rd, 4th and 5th floors of the building) in the Xxxxxxx Building located at
000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx, xx the real property more particularly
described as follows:
Lot 1 and the Northerly 20 feet of Xxx 0, Xxxxx 0, Xxxxx & Xxxxx Addition
to the City of Seattle, as recorded in Volume 1 of Plats, Page 27, Records
of King County, Washington; Less land taken for widening of streets;
Situate in the Northwest quarter of Section 5, Township 24 North, Range 4
East of the Willamette Meridian, in the City of Seattle, King County,
Washington.
The foregoing lease is referred to as the "Xxxxxxx Building Lease."
X. Xxxxx has asked Avenue A to terminate the Xxxxxxx Building Lease, and
Avenue A is willing to do so on the terms and conditions set forth below,
including, but not limited to, refund of Avenue A's rent and security deposits
made under the Xxxxxxx Building Lease, amendment of the Xxxxx Tower Lease in the
manner described in Paragraph D below, and assumption by Xxxxx of certain costs
incurred by Avenue A in performing the Xxxxxxx Building Lease.
D. In consideration of Avenue A's willingness to terminate the Xxxxxxx
Building Lease, Xxxxx has agreed to amend the Xxxxx Tower Lease to grant to
Avenue A a right of first opportunity to lease certain additional space in the
Xxxxx Tower Lease, and to rescind and render null and void the Second Amendment
to Xxxxx Tower Lease, all on the terms and conditions set forth below.
AGREEMENT
NOW THEREFORE, in consideration of the mutual agreements set forth below,
and for other good and valuable consideration, the receipt and sufficiency of
which are acknowledged, the parties agree as follows:
1. Termination of Xxxxxxx Building Lease
The parties terminate the Xxxxxxx Building Lease effective upon the later
to occur of (a) full execution, acknowledgement and delivery of this Agreement,
and (b) refund to Avenue A of the sum of $159,322.50, being the rent and
security deposits made by Avenue A (the "Deposits") pursuant to the terms of the
Xxxxxxx Building Lease (the "Termination Date"). Xxxxx agrees to refund the
Deposits immediately upon full execution, acknowledgement and delivery of this
Agreement.
Effective upon the Termination Date, the Xxxxxxx Building Lease is
cancelled and shall have no further force or effect, and each party does release
the other from all claims, demands, losses, costs and liabilities now existing
or hereafter arising, directly or indirectly, relating to or arising out of the
Xxxxxxx Building Lease or Avenue A's proposed occupancy of the Xxxxxxx Building;
provided, however, that Xxxxx shall be and remain liable for payment of the sums
described in Section 2 of this Agreement.
2. Payment of Costs Associated with the Xxxxxxx Building Lease
Xxxxx and Avenue A have each incurred certain costs in connection with the
Xxxxxxx Building Lease. Xxxxx assumes and agrees to pay all such costs incurred
by Xxxxx, and Xxxxx further assumes and agrees to pay all such costs incurred by
Avenue
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A that remained unpaid as of May 11, 2000 ("Avenue A Unpaid Costs"). Avenue A
shall forward to Xxxxx all invoices and statements for Avenue A Unpaid Costs,
and Samis shall promptly pay them in full.
3. Rescission of Second Amendment to Xxxxx Tower Lease
The parties rescind and render null and void the Second Amendment to Xxxxx
Tower Lease without prejudice, however, to Avenue A's right to exercise the
Option to Extend Term set forth in the Xxxxx Tower Lease, which shall remain in
full force and effect.
4. Right of First Opportunity in Xxxxx Tower - Amendment to Xxxxx Tower
Lease
The Xxxxx Tower Lease is amended by adding a new Section entitled Right of
First Opportunity as follows:
If Avenue A is not in default under the Lease, and has not been past
applicable cure periods, Xxxxx grants to Avenue A a continuing right of first
opportunity to lease any portion or portions of the rentable area on floors 5
and 6 of the Xxxxx Tower on the following terms and conditions. In the event
that at any time during the term of this Lease a tenant desires to vacate all or
any portion of its space on floor 5 or floor 6, Xxxxx shall give written notice
to Avenue A specifying the space that is available (the "Expansion Premises"),
the date on which it will become available for occupancy (the "Occupancy Date"),
this notice being referred to as "Landlord's Notice." Xxxxx and Avenue A shall
have (30) days from Avenue A's receipt of Landlord's Notice to negotiate in good
faith regarding the terms under which Avenue A would lease the Expansion
Premises and any related modifications to the Lease. If the parties do not reach
agreement during said (30) days, Xxxxx shall be free to rent the Expansion
Premises to others. Avenue A's rights under this section will remain in the
event the Expansion Premises again becomes available.
5. Ratification of Xxxxx Tower Lease
Except as specifically modified and amended in this Agreement, the Xxxxx
Tower Lease is ratified and confirmed.
6. Attorneys' Fees
In any proceeding or controversy associated with or arising out of this
Agreement or a claimed or actual breach thereof, the prevailing party shall be
entitled to recover from the other party, as a part of the prevailing party's
costs, reasonable
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attorneys' fees, the amount of which shall be fixed by the court and shall be
made a part of any judgment rendered.
IN WITNESS WHEREOF, Xxxxx and Avenue A have executed this Agreement as of
the day and year first above written.
Xxxxx:
Xxxxx Foundation, a Washington 501(c)(3) non-profit
corporation
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Xxxxx X. Xxxxxx, President
Avenue A:
Avenue A, Inc., a Washington corporation
By /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
Xxxxxx X. Xxxxxxxx
Vice President of Finance and Administration
STATE OF WASHINGTON )
) ss.
COUNTY OF __________ )
On this ___ day of ______________, 2000, before me, the undersigned, a
Notary Public in and for the State of Washington, duly commissioned and sworn,
personally appeared ______________________________________________, to me known
to be the person who signed as _______________________________ of XXXXX
FOUNDATION, the corporation that executed the within and foregoing instrument,
and acknowledged said instrument to be the free and voluntary act and deed of
said corporation for the uses and purposes therein mentioned, and on oath stated
that _______ was duly elected, qualified and acting as said officer of the
corporation, that _______ was authorized to execute said instrument and that the
seal affixed, if any, is the corporate seal of said corporation.
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IN WITNESS WHEREOF I have hereunto set my hand and official seal the day
and year first above written.
_______________________________________
(Signature of Notary)
________________________________________
(Print or stamp name of Notary)
NOTARY PUBLIC in and for the State
of Washington, residing at _____________.
My Appointment Expires:_________________.
STATE OF WASHINGTON )
) ss.
COUNTY OF ___________)
On this ___ day of ______________, 2000, before me, the undersigned, a
Notary Public in and for the State of Washington, duly commissioned and sworn,
personally appeared ______________________________________________, to me known
to be the person who signed as _______________________________ of AVENUE A,
INC., the corporation that executed the within and foregoing instrument, and
acknowledged said instrument to be the free and voluntary act and deed of said
corporation for the uses and purposes therein mentioned, and on oath stated that
_______ was duly elected, qualified and acting as said officer of the
corporation, that _______ was authorized to execute said instrument and that the
seal affixed, if any, is the corporate seal of said corporation.
IN WITNESS WHEREOF I have hereunto set my hand and official seal the day
and year first above written.
_____________________________________
(Signature of Notary)
_____________________________________
(Print or stamp name of Notary)
NOTARY PUBLIC in and for the State
of Washington, residing at___________.
My Appointment Expires:______________.
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