Exhibit 10.20
Willows Commerce Pink Phase 11
Redmond, WA
NET LEASE AGREEMENT
This NET LEASE AGREEMENT ("Lease") is made as of the ______ day of July,
1998, by and between OPUS NORTHWEST, L.L.C., a Delaware limited liability
company ("Landlord"), and PRIMEX AEROSPACE COMPANY, a Washington corporation
("Tenant").
GRANT
Landlord, in consideration of the rents to be paid and the covenants to be
observed and performed by Tenant, hereby leases to Tenant, and Tenant hereby
leases from Landlord each upon and subject to the terms and conditions set forth
herein, that certain space shown and designated as Building A (the "Building")
on the Site Plan attached as Exhibit A (the "Site Plan") and containing
approximately 97,971 square feet of rentable floor area consisting of
approximately 40,860 square feet of first floor assembly space, approximately
10,000 square feet of warehouse space and approximately 46,861 square feet of
office space, of which approximately 42,000 square feet will be located on the
mezzanine (the "Premises"). The Premises are located on the real property
described in Exhibit B (the "Real Property" which, together with the
improvements located upon the Real Property, constitutes the "Project"), which
is part of the property known as Willows Commerce Park Phase II (the "Park"),
shown on the Site Plan and situated in the City of Xxxxxxx, County of King,
State of Washington. Tenant is also hereby granted the non-exclusive license to
use, in common with Landlord and other tenants of the Park and their respective
officers, directors, employees, agents and customers, all portions of the Park
subject to reciprocal easements pursuant to any covenants or easements
benefiting the Park, as the same may exist from time to time.
SECTION 1. LEASE TERM
1.1 Lease Term. The initial lease term ("Initial Term") shall commence on
the Commencement Date (as defined in Section 2.2), and shall continue for 7 full
calendar years plus the part of the month, if any, from the Commencement Date
through the last day of the month in which the Commencement Date occurs. Any
reference to the Lease Term, Term of this Lease or similar reference shall be a
reference to the Initial Term together with any Renewal Term and any extensions
to or modifications of the Initial Term.
1.2 Option to Renew. Tenant shall have the right, subject to all
provisions of this Section 1.2, to extend the Initial Term for one period of 3
years (the "Renewal Term"), provided that: (a) this Lease is in full force and
effect; (b) Tenant is not in default under this Lease, subject to any notice
required and any applicable grace or cure period, at the time of exercise of the
right of renewal or at the time set for commencement of the Renewal Term (c)
Tenant exercises its right to the Renewal Term by giving Landlord written notice
of its election at least 240 days before the first day of the Renewal Term; and
(d) each Renewal Term shall be upon the same terms, covenants and conditions as
provided in this Lease, except that the monthly Fixed Rent shall be the Fixed
Rent for the Renewal Term determined pursuant to Section 3.1.1.
1.3 Special Termination Option. Tenant shall have the right, provided
Tenant is not then in default under this Lease, subject to any notice required
and any applicable grace or cure period, to terminate this Lease as of the end
of the 60th full calendar month of the Initial Term, by giving not less than 8
months irrevocable written notice of termination to Landlord. Tenant's notice of
termination shall be effective only if it is delivered to Landlord during or
before the 52nd full calendar month of the Initial Term and is accompanied by
payment to Landlord of the sum of Three Hundred Seventy-nine Thousand Two
Hundred Seventy Dollars ($379,270). The provisions of this Section 1.3 are for
the personal benefit of the original Tenant who executes this Lease only, and
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no assignee or sublessee shall have any rights whatsoever under this Section
1.3. THE PARTIES HEREBY AGREE THAT (a) TIME IS PARTICULARLY OF THE ESSENCE WITH
RESPECT TO THE PROVISIONS OF THIS SECTION 1.3; (b) NOTWITHSTANDING ANY LAW IN
THE STATE OF WASHINGTON, INCLUDING CASE LAW, TO THE CONTRARY, LANDLORD SHALL BE
UNDER NO DUTY WHATSOEVER TO NOTIFY TENANT THAT TENANT HAS FAILED TO GIVE THE
NOTICE IT HAS THE RIGHT TO GIVE UNDER THE FOREGOING PROVISIONS OF THIS SECTION
1.3; AND (c) THE ENTIRE PROVISIONS OF THIS SECTION 1.3 HAVE BEEN SPECIALLY
NEGOTIATED BY THE PARTIES.
SECTION 2. CONSTRUCTION OF IMPROVEMENTS
2.1 Landlord's Improvements. Landlord agrees to furnish at Landlord's sole
cost and expense all of the material, labor, and equipment for the construction
of the Base Building Shell and Sitework and Tenant Improvements specified in the
Outline Specifications attached hereto as Exhibit C, the Space Plan to be
attached hereto as Exhibit C-1 and the Final Plans and Specifications (as
defined below in this Section 2.1) ("Landlord's Improvements"). Landlord's
Improvements shall be constructed in a good and workmanlike manner in accordance
with the Outline Specifications, the Space Plan, the Final Plans and
Specifications and the applicable laws, rules and regulations, including the
building code, as they are presently interpreted and enforced by the
governmental bodies having jurisdiction thereof (collectively, "Applicable
Laws"). Landlord agrees, at its cost, in consultation with Tenant, to cause a
space plan and plans and specifications for Tenant's proposed tenant
improvements to be prepared in accordance with the Outline Specifications and
the Applicable Laws and to submit the same to Tenant for its approval. If Tenant
objects to any portion of the submitted space plan, it shall notify Landlord
within 5 business days after receipt of such space plan. If Tenant objects to
any portion of the submitted plans and specifications, it shall notify Landlord
within 10 business days after receipt of such plans and specifications. Tenant
also agrees that it will not act in an arbitrary or capricious manner with
respect to the approval of the plans and specifications. The space plan and
plans and specifications shall be approved by Landlord and Tenant affixing
thereon the signature or initials of a Designated Representative (as defined in
Section 2.3) of each of them. The space plan approved by Landlord and Tenant
(the "Space Plan") shall be deemed attached to this Lease as Exhibit C-1. The
plans and specifications approved by Landlord and Tenant (the "Approved Plans
and Specifications") shall be the permit plans submitted by Landlord to the City
of Xxxxxxx with Landlord's application for permits to construct the Building.
Landlord shall promptly notify Tenant's Designated Representatives (as defined
in Section 2.3) of any changes to the Approved Plans and Specifications that are
required by the City of Xxxxxxx. The Approved Plans and Specifications, as
revised as required by the City of Xxxxxxx, shall be the "Final Plans and
Specifications" and shall be deemed attached to each party's copy of this Lease
as Exhibit D. Such Exhibit D shall be in lieu of and shall replace Exhibit C and
Exhibit C-1, except as to nonconstruction matters contained in Exhibit C or
Exhibit C-1 such as allowances and exclusions not expressly and specifically
superseded by Exhibit D. The signature or initials of a Designated
Representative of a party shall be deemed conclusive evidence of the appr6val of
such party. When Landlord requests Tenant to specify details or layouts, Tenant
shall promptly specify the some, subject to the provisions of the Outline
Specifications, so as not to delay completion of the Space Plan, Final Plans and
Specifications or Landlord's Improvements. Tenant shall be responsible for
Landlord's increased cost of labor and materials, if any, slid loss of rent,
arising out of delay in the completion of the Premises caused by Tenant's
failure to comply in a timely manner with the requirements of this Section 2.1.
Tenant shall have a turnkey build out allowance (the "Allowance") of Thirty
Six and No/100 Dollars ($36) per rentable square foot of floor area of the
office portion of the Premises for the Cost of Construction of all of Landlord's
Improvements to the Initial Premises, as shown on the Outline Specifications and
Final Plans and Specifications, other than the Base Building Shell and Sitework
("Tenant Improvements"). "Cost of Construction" shall mean (a) all costs
(including sales and excise taxes) incurred in the design or construction of
Tenant Improvements, including the contractor's fee; (b) premiums for Builder's
Risk and Indemnification Insurance directly related to [lie construction of
Tenant Improvements; and (c) costs of obtaining building permits, water, sewer
and utility tap fees. Landlord shall deliver to Tenant a preliminary budget for
the Cost of Construction of Tenant Improvements as soon as reasonably possible.
Landlord shall work with Tenant to value engineer the proposed plans and
specifications for the Tenant Improvements to maximize the probability that
the Tenant
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Improvements can be constructed for the amount of the Allowance. If the final
Cost of Construction of Tenant Improvements exceeds the Allowance, Tenant shall
pay said excess to Landlord as Additional Rent within 10 days sifter Landlord
notifies Tenant of the amount of the excess, which notice shall be accompanied
by reasonable documentation of the excess.
If Tenant requests a change to the Landlord's Improvements, Landlord shall
notify Tenant in writing, before executing the change, of any additional Cost of
Construction thereof to the Landlord and any delay in substantial completion of
the Landlord's Improvements caused by the change. Within 2 business days after
receipt of Landlord's notice, Tenant shall either direct Landlord in writing to
proceed with the requested change order or withdraw the request. If Tenant does
not take any action with respect to the requested change order within such 2day
period, the requested change order shall be deemed withdrawn. Tenant shall pay
Landlord the Cost of Construction of a change order within 10 days after
directing Landlord to proceed.
2.2 Possession of Premises. The "Commencement Date" of this Lease is the
later of: (a) the date two days after the date Landlord's Improvements are
substantially complete and ready for occupancy by Tenant (subject to Punch List
items correction of which does not materially interfere with Tenant's use and
enjoyment of the Premises); or (b) December 30, 1998. The Landlord's
Improvements shall be deemed to be substantially complete and ready for
occupancy on the date that the municipality having jurisdiction thereof issues a
temporary or permanent certificate of occupancy permitting Tenant to occupy the
Premises for the purposes set forth in Section 4 or takes such other action as
may be customary to permit occupancy or use thereof; provided, however, that the
issuance of a certificate of occupancy or the taking of such other customary
action shall not be a condition to payment of Rent or commencement of the Lease
Term if failure to secure such certificate or action is caused by the act or
omission of Tenant or if matters required for issuance are not the
responsibility of Landlord. Landlord shall not be liable for any damages arising
from delay in putting Tenant in possession of the Premises provided that: (a) if
the Commencement Date is delayed until after March 31, 1999, Tenant shall be
entitled to a credit against the Fixed Rent first coming due under this Lease in
the amount of $1,000 for each day of delay after March 31, 1999 and (b) if the
Commencement Date is delayed until after April 30, Tenant shall have the right
to terminate this Lease upon written notice given to Landlord on or before April
30, 1999.
2.3 Representatives. "Designated Representative" means any person
authorized to speak and act on behalf of Landlord or Tenant and upon whom the
other shall fully and unconditionally be entitled to rely for any and all
purposes of this Lease until such designation has been revoked or changed in
accordance with the applicable provisions of this Section 2.3, Landlord hereby
appoints Xxxxx XxXxxxx and Xxxx Xxxxxxxxx as its Designated Representatives.
Tenant hereby appoints Xxxxx Xxxxx and Xxxx Xxxxx as its Designated
Representatives. Either party may change or revoke the authority of a Designated
Representative by notice to the other, but no such change or revocation shall
affect any approval or consent given by a party's Designated Representative
before the other party receives notice of such change or revocation.
2.4 Construction Guaranty. Landlord guarantees the Landlord's Improvements
against defective workmanship and/or materials for a period of one year from the
date of substantial completion of Landlord's Improvements. Landlord agrees, at
its sole cost, to repair or replace any defective item occasioned by poor
workmanship and/or materials during said one-year guaranty period. Performance
of such one-year guaranty shall be Landlord's sole and exclusive obligation with
respect to defective workmanship and/or materials. Tenant's right to enforce
such one-year guaranty shall be Tenant's sole and exclusive remedy with respect
to such defective workmanship and/or materials in limitation of any contract,
warranty or other rights, whether express or implied, that Tenant may otherwise
have under applicable law. Upon expiration of the one-year guaranty of Landlord
against defective workmanship and materials, Landlord shall assign to Tenant any
warranties or guaranties of workmanship or materials given to Landlord by
subcontractors or materialmen for a period longer than the one-year guaranty
period described above. Landlord makes no warranty or representation that any of
such warranties or guaranties will be assignable. To the extent that any such
warranties or guaranties are not assignable, Landlord agrees to cooperate with
Tenant in the enforcement thereof by Tenant, at Tenant's sole cost. Landlord
also agrees to cooperate with Tenant in the enforcement by Tenant, at Tenant's
sole cost, of any service contracts that provide service, repair or maintenance
for a period longer than such one-year guaranty period, on any item incorporated
in the Building that is to be maintained by Tenant.
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2.5 Tenant's Acceptance of Premises. If on the date the Landlord's
Improvements are substantially complete there remain items of construction or
finish work to be completed which do not materially interfere with Tenant's use,
occupancy or enjoyment of the Premises, Landlord and Tenant shall, within 2
business days from the date the Landlord's Improvements are substantially
complete, prepare a written list (the "Punch List") of such uncompleted items.
Landlord agrees to complete the Punch List item(s) within that time period which
is reasonable for completion of such items. If there is any dispute as to work
performed or required to be performed by Landlord, the existence of any Punch.
List items or the completion thereof in accordance with the terms of the Lease,
such dispute shall be decided by Landlord's architect (Xxxxx Xxxxxxx), whose
decision shall be final and binding upon the parties. Subject to the preceding,
Tenant's acceptance of possession shall conclusively be deemed to establish that
the Premises have been completed. Tenant waives any claim as to matters not
listed in the Punch List.
2.6 Expansion Space. Notwithstanding the provisions of the first paragraph
of this Lease, the initial Premises does not include 20,000 square feet of the
mezzanine office space (the "Pocket Space"). The entire Pocket Space shall be
included in the Premises on the earlier of the date Tenant occupies any portion
of the Pocket Space for any purpose or twelve (12) months after the Commencement
Date.
2.7 Security System. Tenant may install any security system in the Premise
at Tenant's sole cost and expense. Tenant shall provide Landlord with the name
and telephone number of a person or persons who are authorized to give Landlord
access to the Building 24 hours per day in the event of an emergency.
SECTION 3. FIXED RENT
3.1 Fixed Rent. Tenant shall pay Landlord, without previous demand
therefore and without any right of setoff or deduction whatsoever (except as
otherwise specifically permitted in this Lease), at the office of Landlord at:
Opus Northwest, L.L.C., Attn: Xxxx Xxxxxxx, Vice President, 000 - 000xx Xxxxxx
X.X., Xxxxx 000, Xxxxxxxx, XX 00000, or at such other place or account as
Landlord may from time to time designate in writing, rent for the Term of this
Lease in the following amounts (the "Fixed Rent"):
Initial Term: Renewal Term
------------ ------------
Months 1 - 3 $ 0 See Section 3.1.1
Months 4 - 12 $ 91,151
Months 13 - 60 $106,879
Months 61 - 84 $119,704
payable monthly, in advance, commencing on the Commencement Date and continuing
on the first day of each month thereafter during the balance of the Lease Term.
Fixed Rent for any partial calendar month shall be prorated. The free rent
period shown above shall begin on the first full calendar month of the Lease
Term. The Fixed Rent for any partial month starting on the Commencement Date
shall be a prorated portion of Ninety-one Thousand One Hundred Fifty-one Dollars
($91,151) and shall be due and payable on the Commencement Date. If the Pocket
Space is included in the Premises earlier than twelve (12) months after the
Commencement Date, the Fixed Rent shall increase to One Hundred Six Thousand
Eight Hundred Seventy-nine Dollars ($106,879) per month starting on the date on
which the Pocket Space is included in the Premises.
3.1.1 Renewal Term Fixed Rent. The monthly Fixed Rent during each
Renewal Term shall be the monthly market rate for a 3 year term for comparable
space leased on comparable terms in the greater eastside area (Bothell,
Kirkland, Bellevue, Redmond, Issaquah, Renton and Kent, Washington,
collectively, the "Eastside") ("Market Rent") but in no event less than one
hundred percent (100%) of the Fixed Rent payable in the period immediately
preceding the Renewal Term. Landlord shall give Tenant notice of Landlord's
estimation of Market Rent within 10 business days after receiving Tenant's
notice exercising its option to renew. If Tenant disagrees with such estimate,
it shall notify Landlord in writing thereof within 10 business days of Tenant's
receipt of its notice. If Tenant fails to notify Landlord that it disagrees with
the estimation within said 10 business day period, Tenant shall be deemed to
have agreed to the Market Rent proposed by Landlord. If there is a disagreement
on such estimation, the parties shall promptly meet to attempt to resolve their
differences. If the differences as to
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Market Rent are not resolved within 25 business days of the date Tenant receives
the Landlord's initial estimate of Market Rent, then the parties shall submit
the matter to appraisal in accordance with the next paragraph so that Market
Rent is determined before the first day of the Renewal Term, or Tenant may give
Landlord written notice within 3 business days after expiration of the 25
business day period that Tenant withdraws the notice exercising its right of
renewal and this Lease shall expire as of the expiration of the then-existing
Term.
If the parties are unable to reach agreement on Market Rent during the
period specified in the immediately preceding paragraph, then Landlord or Tenant
(the "Moving Party") may give notice to the other demanding appraisal and naming
an appraisal company. The recipient of such notice (the "Recipient") shall,
within 10 days after receiving the Moving Party's notice, give notice to the
Moving Party naming an appraisal company selected by the Recipient. Each
appraiser shall be a member of the American Institute of Appraisers and shall
have not less than 10 years experience in the appraisal of properties like the
Park in the Eastside area, including Redmond. If the Recipient fails to notify
the Moving Party of the name of the appraisal company it has selected within
said 10 day period, the appraisal company selected by the Moving Party shall
determine the Market Rent for the Renewal Term. The appraiser(s) shall
determine the Fixed Rent for the Renewal Term, which shall be the monthly amount
per square foot that a willing, comparable tenant would pay and a willing,
comparable landlord would accept, in an arms-length lease for comparable space
in a comparable building in a comparable Park for a comparable period of time,
giving consideration to the rent rates per square foot, the standard of
measurement by which square footage is measured, the type and extent of
liability under any escalation clauses and all other applicable conditions of
tenancy (which is a more detailed description of the Market Rate). The Market
Rate shall not be less than 100% of the Fixed Rent payable in the period
immediately preceding the Renewal Term. The appraiser(s) shall render a
decision in writing to Landlord and Tenant simultaneously within 10 days of
their appointment. Any decision in which the appraiser appointed by Landlord
and the appraiser appointed by Tenant concur shall be binding and conclusive
upon the parties.
If the two appraisers are unable to agree upon a determination of Market
Rent within 20 days after appointment of the appraiser(s), they shall appoint a
third appraiser, who shall be an impartial person with qualifications similar to
those required of the first two appraisers. If the initial two appraisers are
unable to agree upon such appointment within 5 days after expiration of the 20
day period, the third appraiser shall be selected by the parties themselves, if
they can agree, within a further period of 10 days. If the parties do not so
agree, then either party, on behalf of both, may request appointment of such a
qualified person by the then presiding judge of the King County Superior Court
acting in his private non-judicial. capacity. The other party shall not raise
any question as to such Judge's full power and jurisdiction to entertain the
application for and make the appointment, and the parties agree to indemnify the
presiding judge against all claims arising out of the presiding judge's
appointment of an appraiser. If the Market Rent cannot be determined by
agreement between the two appraisers. selected by Landlord and Tenant, or
settlement between the parties during the course of appraisal, the Market Rent
shall be determined by the three appraisers in accordance with the following
procedure. Each of the two appraisers originally selected by the parties shall
prepare a written statement of his determination of the Market Rent supported by
the reasons therefor, with counterpart copies for each party and the third
appraiser. The appraisers shall arrange for a simultaneous exchange of their
Market Rent determinations. The role of the third appraiser shall be to select
which of the two proposed determinations most closely approximates his
determination of the Market Rent. The third appraiser shall have no right to
propose a middle ground or any modification of either of the two proposed Market
Rents. The appraisers shall attempt to decide the issue within 10 days after
the appointment of the third appraiser. The Market Rent chosen by the third
appraiser shall constitute the decision of the appraisers and be final and
binding upon the parties.
In the event of a failure, refusal or inability of any appraiser to act,
his successor shall be appointed by him, but in the case of the third appraiser,
his successor shall be appointed in the manner described above for appointment
of the third appraiser. The appraisers shall have the right to consult experts
and competent authorities with factual information or evidence pertaining to a
determination of Market Rent, but any such consultation shall be made in the
presence of both parties with full right on their part to cross-examine. The
appraiser(s) shall render the determination of Market Rent in writing, with
counterpart copies to each party. The appraisers shall have no power to modify
the provisions of this Lease. Each party shall pay the fees and expenses of its
respective appraiser and both shall share equally the fees and expenses of the
third appraiser, if any. Each party shall pay the attorneys'
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fees and expenses of its counsel and the fees and expenses of any witnesses
called by that party. Time is of the essence in connection with the
establishment of Market Rent. If the Market Rent for a Renewal Term is not
determined before the first day of the Renewal Term, Tenant shall continue to
pay Fixed Rent in the amount payable during the immediately preceding period
until the Fixed Rent for the Renewal Term is determined. Within 10 business days
after the Fixed Rent for the Renewal Term has been determined, Tenant shall pay
to the Landlord the excess, if any, of the Fixed Rent due at the rate set by the
appraiser(s) over the Fixed Rent actually paid during any expired portion of the
Renewal Term.
3.2 Additional Rent. Tenant shall fully and timely pay or discharge any
and all charges, real estate taxes, insurance premiums, utility charges,
maintenance, repair or replacement expenses and any other amount to be paid by
Tenant under the terms of this Lease as additional rent (sometimes collectively
referred to as "Additional Rent"). If Tenant fails to pay or discharge any item
of Additional Rent, Landlord may, but shall not be obligated to, pay or
discharge the same. Tenant shall immediately reimburse Landlord for all costs so
incurred by Landlord, together with interest at the Agreed Rate (as defined in
Section 3.3) from the date of Landlord's expenditure until the date Landlord
receives Tenant's reimbursement. The term "Rent" means the aggregate of Fixed
Rent and Additional Rent.
3.3 Delinquent Payments. Any installment of Fixed Rent or Additional. Rent
or any other charges payable by Tenant under the provisions. hereof which is not
paid when due shall bear interest from the date due until it has been paid at an
annual rate equal to (the "Agreed Rate") 5% in excess of the published "prime
rate" announced as such by U.S. Bank National Association, it's successors or
assigns, including by merger or other operation of law, but in no event greater
than the maximum lawful rate Landlord may charge Tenant. In addition, any
installment of Fixed Rent or Additional Rent payable by Tenant under the
provisions hereof which is not paid when due and which remains unpaid ten days
thereafter shall be subject to a late payment fee of 5% of the unpaid amount.
3.4 Security Deposit. Contemporaneously with the execution hereof, Tenant
shall pay to Landlord the sum of One Hundred Nineteen Thousand Seven Hundred
Four Dollars ($119,704) (the "Security Deposit"). The Security Deposit shall be
held by Landlord without liability for interest as security for the performance
by Tenant of Tenant's obligations under this Lease. Upon the occurrence of any
Event of Default. by Tenant (as defined in Section 11), Landlord may, from time
to time, without prejudice to any other remedy, use the Security Deposit to the
extent necessary to pay any arrearages of Fixed Rent or Additional Rent, to pay
any amount which Landlord may spend or become obligated to spend by reason of
such Event of Default or to compensate Landlord for any other loss, damage or
liability which Landlord may suffer by reason of such Event of Default.
Following any such application of the Security Deposit, Tenant shall pay to
Landlord on demand the amount so applied in order to restore the Security
Deposit to its original amount. Provided there exists no Event of Default
hereunder, any remaining balance of the Security Deposit shall be returned by
Landlord to Tenant upon expiration or earlier termination of this Lease. If
Landlord transfers its interest in the Premises during the Lease Term, Landlord
may assign the Security Deposit to the transferee and thereafter shall have no
further liability for the return of the Security Deposit.
SECTION 4. USE OF PREMISES
The Premises shall be used for office, light manufacturing, assembly and
warehouse uses (the "Permitted Use") and no other use. Tenant shall not use or
occupy the same, or knowingly permit them to be used or occupied, contrary to
any applicable statute, rule, order, ordinance, requirement or regulation, or in
any manner which would: (a) violate any certificate of occupancy affecting the
same; (b) cause structural injury to the improvements or overload the floors;
(c) cause the value or usefulness of the Premises, or any portion thereof,
substantially to diminish (reasonable wear and tear excepted); (d) constitute a
public or private nuisance or waste; or (e) increase the cost of any insurance
maintained by Landlord relating to the Premises, unless the increased cost is
paid by Tenant. Tenant agrees that it will promptly, upon discovery of any such
use, take all necessary steps to compel the discontinuance of such use. Tenant
shall comply with any recorded covenants, conditions, and restrictions affecting
the Premises and the Building as of the Commencement Date or which are recorded
during the Lease Term.
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SECTION 5. OPERATING EXPENSES AND TAXES
5.1 Definitions.
"Operating Expenses" shall mean all costs of operating, maintaining,
repairing and replacing the Project and shall include: all sums expended for
lighting, cleaning, sealing, striping, inspecting, painting and removing snow,
ice, debris and surface water; all insurance costs incurred by Landlord in
connection with the Park, including liability insurance, insurance against all
risks of physical loss (including earthquake and flood if required by Landlord's
Mortgagee, as defined in Section 16. 1) or other casualties, rental loss,
workmen's compensation and employer's liability insurance, and any "deductible"
cost incurred in connection with any covered loss; all costs incurred by
Landlord in connection with transportation management for the Park including
surcharges levied upon or assessed against parking spaces or areas, payments to
or for public transit, shuttles, car pooling facilities, a transportation
manager or otherwise, as required by governmental authorities having
jurisdiction over the Park; costs incurred by Landlord in connection with
complying with applicable federal, state or local environmental laws,
regulations, rules, ordinances or other legal requirements not applicable or
required at the Commencement Date; costs of providing security guards, if any;
acquisition costs (rental fees and/or purchase price amortized over the useful
life thereof) or, in lieu of acquisition costs, the annual depreciation (over
the useful life applicable thereto) of machinery and equipment used in
connection with the maintenance or operation of the Common Areas; costs of any
capital improvements to the Park which are for the purpose of reducing energy
costs or Operating Expenses; costs of service and maintenance contracts; costs
of inspecting, repairing and maintaining equipment used in the maintenance or
operation of the Common Area; reasonable costs paid or incurred by Landlord for
professional and other services (including consultants, attorneys, appraisers
and experts) in connection with contesting or attempting to lower Taxes or
resist increased Taxes; all costs incurred by Landlord in connection with
operating, maintaining and repairing any areas or facilities used in common by
the owners and occupants of the Park pursuant to recorded covenants affecting
the Park and a property management fee equal to 3% of Tenant's annual Fixed
Rent. Operating Expenses shall not include: (1) any capital improvement to the
Park other than replacements required for normal maintenance and repair, except
as specifically set forth above; (2) repairs, restoration or other work
occasioned by fire, windstorm or other insured casualty, except for any
applicable deductible; (3) expenses incurred in leasing or procuring tenants,
such as leasing commissions, advertising expenses or expenses for renovating
space for new or existing tenants; (4) legal expenses incident to the
negotiation or enforcement by Landlord of the terms of any lease; (5) interest
or principal payments on any Mortgage (as defined in Section 16. 1) or other
indebtedness of Landlord; (6) expenses for constructing or reconstructing the
exterior of the buildings in the Park; (7) any structural change or improvement
to the Premises or the Park that was expressly required as of the date hereof
under governmental law, regulation or ordinance (as the same are presently
interpreted and enforced) but which Landlord failed to construct as part of the
initial development of the Park; or (8) fines, penalties, and interest. In the
calculation of any expenses hereunder, no expense shall be charged more than
once. Landlord agrees to keep, for a period of at least 3 years, books and
records showing the Operating Expenses in accordance with a system of accounts
and accounting practices consistently maintained on a year-to-year basis.
"Lease Year" shall mean, in the case of the first Lease Year, that period
from the Commencement Date to the first succeeding December 31. Thereafter,
"Lease Year" shall mean each successive 12 calendar month period following the
expiration of the first Lease Year, except that if this Lease terminates or
expires on any day other than December 31, the last Lease Year shall be the
period from the end of the preceding Lease Year to such termination or
expiration date.
"Taxes" shall mean all taxes and assessments (general and special, ordinary
and extraordinary, foreseen as well as unforeseen, of any kind whatsoever)
against the Real Property or the buildings or improvements located on the Real
Property and all other governmental charges that are levied or assessed by any
lawful authority during each calendar year, excluding any net income tax, estate
tax, transfer tax or inheritance tax. Taxes shall not include any fine,
penalty, interest, or cost attributable to delinquent payment thereof Landlord
and Tenant recognize that new forms of taxes, assessments, charges, levies or
fees may be imposed, in connection with the ownership, leasing, occupancy or
operation of the Park or the Premises. All such new or increased taxes,
assessments, charges, levies or fees which are imposed or increased as a result
of, or arising out of any change in the structure of, or are in lieu of,
7
the current tax system, or are for the purpose of funding special assessment
districts heretofore funded by taxes, shall also be included within the meaning
of Taxes, unless any such taxes, assessments, charges, levies or fees are herein
expressly excluded.
"Tenant's Pro Rata Share" of Operating Expenses solely attributable to the
Project shall be 100%. Tenant's Proportionate Share of Operating Expenses
attributable to the entire Park equals the ratio of the Premises rentable area
at the time to the rentable area at the time of all buildings then included in
the Park. Tenant's Proportionate Share of Operating Costs attributable to the
Premises and one or more but not all of the other buildings or lots included in
the Park equals the ratio of the Premises rentable area at the time to the
rentable area of all buildings benefited by the Operating Expense.
5.2 Payment. Tenant shall pay to Landlord Tenant's Pro Rata Share of Taxes
and Operating Expenses, as Additional Rent, in monthly installments on or before
the first day of each calendar month, in advance, in an amount estimated by
Landlord from time to time. Landlord shall, on or about March 31 of each
calendar year, submit to Tenant a statement of estimated Operating Expenses and
Taxes for such Lease Year and Tenant's Pro Rata Share thereof, whereupon Tenant
shall pay Landlord any deficit over Tenant's first quarter payments within 30
days of receipt of Landlord's statement, and any overpayment by Tenant shall be
credited to the next installments of Tenant's Pro Rata Share of Operating
Expenses or Taxes. Landlord may from time to time revise such estimate by notice
to Tenant, whereupon subsequent payments by Tenant shall be based upon such
revised estimate until Tenant receives the next estimate.
Within 90 days after the end of each Lease Year, Landlord shall furnish
Tenant with a statement (the "Annual Statement") of the actual amount of
Tenant's Pro Rata Share of Operating Expenses and Taxes for such period. If the
total of the monthly installments paid by Tenant for such Lease Year does not
equal Tenant's Pro Rata Share as shown on the Annual Statement, (a) Tenant shall
promptly pay Landlord any deficiency or (b) Tenant shall be entitled to offset
any excess against Tenant's Pro Rata Share of Operating Expenses or Taxes next
due under this Lease or, if this Lease has terminated, Landlord shall promptly
pay such excess to Tenant.
5.3 Common Area Maintenance. "Common Area" shall mean the portions of the
Project that are on or outside the exterior surface of the Building, including
parking areas, landscaped and vacant areas, roads, walks, curbs, corridors,
stairs, ramps, common utility facilities, storm water detention facilities
(whether located within or outside of the Park), the roof membrane and exterior
surfaces of the Building, except for doors, windows and Tenant's signs. Landlord
shall operate and maintain the Common Area, or shall cause the same to be
operated and maintained, in a manner deemed by Landlord to be reasonable or
appropriate for the Park. Landlord shall have the right: (a) to change the
location and arrangement of parking areas and other Common Areas; (b) to
establish and change the level of parking surfaces; (c) to close all or any
portion of the Common Area to such extent as may, in the opinion of Landlord's
counsel, be necessary to make repairs or alterations or prevent a dedication
thereof or the accrual of any rights by any person or the public therein; and
(d) to do and perform such other acts in and to said area and improvements as,
in the exercise of good business judgment, Landlord shall determine to be
advisable with a view to the improvement of the convenience and use thereof. If
Landlord exercises any right set forth in the preceding sentence, Landlord shall
use reasonable efforts to minimize material adverse interference with Tenant's
operation of the Premises for the Permitted Use. Tenant shall not, without the
prior written consent of the Landlord, solicit business or display merchandise
within the Common Area, distribute handbills therein or take any action which
would interfere with the rights of other persons to use the Common Area.
5.4 Other Taxes. Tenant shall pay, as Additional Rent, any tax or excise
on rents, gross receipts tax, transaction privilege tax or other tax, however
described, which is levied or assessed by any lawful authority against Landlord
with respect to the Fixed Rent, Additional Rent or other charges accruing under
this Lease. If it shall not be lawful for Tenant so to reimburse Landlord, the
monthly Fixed Rent payable to Landlord shall be increased so that after
imposition of any such tax or charge Landlord receives the some net rental that
it received before the imposition thereof.
5.5 Tenant Parking. Landlord agrees to make available to Tenant up to 270
parking stalls in the Park on an unassigned basis and in common with all other
occupants of the Park.
8
SECTION 6. INSURANCE
6.1 Landlord's Casualty Insurance. Landlord shall keep the improvements on
the Real Property insured in an amount equivalent to their full insurable
replacement cost (excluding foundation, grading and excavation costs) with
deductibles reasonably acceptable to Landlord against loss or damage by fire and
such other risks as are customarily covered with respect to buildings and
improvements similar to the Park in construction, general location, use,
occupancy and design, and such other risks as Landlord may deem appropriate.
6.2 Liability Insurance Coverage. Tenant, at its sole cost, shall carry
commercial general liability insurance covering the Premises and Tenant's use of
the Premises with a combined single limit not less than Five Million Dollars
($5,000,000), per occurrence, coverage on an occurrence basis, with a deductible
of not more than Ten Thousand Dollars ($10,000.00). Such insurance shall: (a)
name Landlord, its managing agent and Mortgagee as additional insureds; (b)
specifically insure (by contractual liability endorsement) Tenant's obligations
under Section 10 of this Lease; (c) be primary to any liability insurance
maintained by Landlord, its managing agent or Mortgagee; (d) protect each of the
insureds under a severability of interest clause as if each were separately
insured under separate policies; and (e) include employer's liability and
Washington stop gap coverage.
6.3 Tenant's Casualty and Business Insurance. Tenant, at its sole cost,
shall keep all of its inventory, equipment, furniture, fixtures and personal
property located at the Premises insured in an amount equivalent to the full
insurable replacement cost against loss or damage by fire and such other risks
as are customarily covered with respect to a tenant's machinery, equipment,
furniture, fixtures, personal property and business located in a building
similar to the Park in general location, use, occupancy and design, including
sprinkler leakage, windstorms, hail, explosions, vandalism, theft, malicious
mischief, civil commotion and such other coverage capable of being covered by a
special extended coverage insurance policy. Tenant, at its sole cost, shall also
carry business interruption and extra expense insurance in a sufficient amount
to protect Tenant against any additional costs and lost income associated with
interruption of its business from the Premises for a period not less than one
year.
6.4 General Provisions. All policies required under Section 6.2 or Section
6.3 shall be written by companies licensed in the state in which the Premises
are located and reasonably acceptable to Landlord (having a financial rating of
at. least "VIII" and a general policyholder's rating of "A", as rated in the
most current Best's Key Rating Guide Property-Casualty). Each policy shall not
be canceled or materially changed without at least 45 days prior written notice
to Landlord. Certificates of insurance for each insurance policy required under
Section 6.2 and Section 6.3, in a form reasonably acceptable to Landlord, shall
be delivered to Landlord before Tenant has access to or possession of any
portion of the Premises. Not less than 20 days before the expiration of each
policy, a new certificate evidencing the continuation of such insurance shall be
delivered to Landlord.
6.5 Blanket Insurance Coverage. Nothing in this Section 6 shall prevent
Landlord or Tenant from maintaining insurance of the kinds and in the amounts
required by Section 6.1, Section 6.2 or Section 6.3 under a blanket insurance
policy or policies covering other properties owned or operated by Landlord or
Tenant as well as the Premises; provided, however, that (a) each policy contains
the various provisions and coverages required by this Section 6 and (b) the
certificate for such policy includes a statement from the insurer setting forth
the coverages maintained and the amounts exclusively allocated to the Premises.
6.6 Self Insurance. Subject to the requirements of Landlord's Mortgagee,
Tenant may maintain deductibles exceeding those required in this Section 6 so
long as Tenant's Tangible Net Worth, as evidenced by the latest available
financial statements prepared by an independent Certified Public Accountant is
at least One Hundred Million and 00/100 Dollars ($100,000,000.00). "Tangible
--------
Net Worth" means, as of any time the same is to be determined, the total
---------
shareholders' equity (including capital stock, additional paid-in-capital and
retained earnings after deducting Treasury stock, but excluding minority
interests in subsidiaries) which would appear on the balance sheet of Tenant and
its subsidiaries determined on a consolidated basis in accordance with generally
accepted accounting principles less the sum of (a) all notes receivable from
officers and employees of Tenant and its subsidiaries; (b) the aggregate book
value of all assets which would be classified as intangible assets under
generally accepted accounting principles, including good will, patents,
trademarks, tradenames, copyrights, franchises, and deferred charges (including
unamortized debt, discount and expense, organization costs and deferred research
and development expense) and similar assets; and (c) the write-up of assets
above costs. Any undertaking by Tenant to
9
assume deductibles as permitted hereunder shall not serve to adversely affect
Landlord, Landlord's managing agent or Landlord's Mortgagee, which shall be
protected against loss or damage (including to Tenant's property) in the same
manner as if Tenant had maintained the insurance required in this Section 6.
6.7 Release and Waiver of Subrogation. Notwithstanding any other provision
of this Lease, Landlord and Tenant each hereby waives, releases and discharges
the other, its agents and employees from all claims whatsoever arising out of
loss, claim, expense, damage or destruction covered or coverable by insurance
required by Section 6.1 or Section 6.3 or covered by other casualty insurance it
may carry (a "Loss"), notwithstanding that such Loss may have been caused by the
other, its agents or employees. Landlord and Tenant each hereby agrees to look
to its insurance coverage only upon such Loss. Landlord's policy or policies of
insurance described in Section 6.1 shall contain a waiver of subrogation clause
as to Tenant. Tenant's policy or policies of insurance required by Section 6.3
shall contain a waiver of subrogation clause as to Landlord.
SECTION 7. UTILITIES
Before the Commencement Date, Tenant shall pay for all utilities and.
services used by Tenant, its agents, or contractors at the Premises. During the
Lease Term, Tenant shall pay, when due, all charges and costs for utilities or
services furnished to the Premises. Tenant shall pay directly to the provider
the charges and costs of utilities which are separately metered or billed
directly to Tenant. Extra or after hours services shall be available on demand.
If any utility is jointly metered with another user or users, Tenant shall pay
an equitable portion of the charges therefore, as reasonably determined by
Landlord, within 10 days after receiving an invoice therefore from Landlord.
Landlord shall not be liable in damages or otherwise, nor shall there be an
abatement of Rent, if any utility or other service to the Premises is
interrupted or impaired by fire, accident, riot, strike, act of God, the making
of necessary repairs or improvements, or by any other cause beyond Landlord's
reasonable control.
SECTION 8. REPAIRS AND ALTERATIONS
8.1 Tenant's Repairs. Except for the one-year guaranty against defective
materials and workmanship provided for in Section 2.4, and the completion of
incomplete items provided for in Section 2.5, and subject to Section 13 and
Section 14, Tenant agrees, at its sole cost, to maintain the Premises, all parts
thereof, all loading docks contiguous thereto and all Tenant's signs in good
order, condition and repair, ordinary wear and tear excepted, including keeping
the inside of all glass in doors and windows of the Premises clean, promptly
replacing any broken door or door closers and any cracked or broken glass with
glass of like kind and quality. Tenant, at its sole cost, shall also: keep any
garbage removed on a regular basis and temporarily stored in the Premises or in
exterior dumpsters approved by Landlord; maintain, repair, and replace the
mechanical systems (including HVAC) and all utility lines serving the Premises,
including those beneath the slab and within the exterior or demising walls; keep
all mechanical apparatus free of vibration and noise which may be transmitted
beyond the Premises; and maintain a contract with a licensed and bonded
mechanical contractor reasonably acceptable to Landlord for the repair and
maintenance of the heating, ventilating and air conditioning equipment serving
the Premises in accordance with the recommendations of manufacturers and
suppliers. When used in this Section 8, the term, "repair" shall include making
all necessary replacements, renewals, alterations and additions. All repairs
shall be at least equal in quality to the original work and shall be made by
Tenant in accordance with all applicable laws, ordinances and regulations. If
Tenant fails to perform any of its obligations under this Section 8.1, Landlord
may, in addition to exercising any other remedies provided herein, perform such
repairs or maintenance. Any sums expended by Landlord in performing such
repairs or maintenance shall be due and payable, together with interest thereon
at the Agreed Rate from the date of expenditure by Landlord to file date of
repayment by Tenant, within 10 days after Tenant's receipt of Landlord's written
request for reimbursement, which request shall be accompanied by reasonable
evidence of such costs.
8.2 Landlord's Repairs. Landlord shall keep (or cause to be kept) the
structural portions of the Building, including the foundations, the exterior
surfaces of the exterior walls, the roof and, to the extent Tenant or other
Tenants are not obligated to maintain the same, all utility systems, lines and
conduits located within the Real
10
Property but outside the exterior walls of the Premises in good repair, ordinary
wear and tear excepted. If the need for repair results from the business
activity being conducted within the Premises, or from the acts or omissions of
Tenant, its officers, directors, employees, agents, contractors or invitees,
Tenant shall reimburse Landlord for the reasonable costs so incurred by
Landlord. Landlord shall commence repairs required under this Section 8.2 as
soon as reasonably practicable after receiving written notice from Tenant of the
necessity for such repairs. Landlord shall have no liability for any damage or
injury arising out of any condition or occurrence causing a need for such
repairs, unless the damage or injury was caused solely by Landlord's gross
negligence. If Landlord fails to make repairs required under this Section 8.2,
Tenant shall promptly deliver to Landlord, and to any Mortgagee (provided that
Tenant has received notice of the identity and address of any such Mortgagee)
notice that such specified repairs must be performed within 30 days. If Landlord
or such Mortgagee fails to perform the specified repairs within the 30-day
period (or, if the repair cannot with due diligence be accomplished within such
period, fails to commence the repair within such period and thereafter
diligently complete the repair), Tenant may perform said repair in a good and
workmanlike manner, Landlord shall reimburse Tenant for the reasonable costs so
incurred by Tenant within 10 days after Landlord's receipt of Tenant's written
request for reimbursement, which request shall be accompanied by reasonable
evidence of such costs and final lien waivers.
8.3 Tenant's Changes and Alterations. Tenant may make any modifications,
improvements, alterations or additions to the Premises ("Work") that do not
affect the exterior appearance of the Building or the structural, electrical or
mechanical systems of the Premises or the Building and that do not in the
aggregate cost more than $10,000 in any 12 month period without obtaining
Landlord's consent, provided Tenant: (a) notifies Landlord at least 10 days
before beginning such Work; (b) delivers to Landlord a copy of the plans for
such Work, if Tenant has arranged to have plans prepared therefor; and (c)
delivers to Landlord copies of any necessary permits. Tenant shall not perform
any other Work without Landlord's prior written consent, which consent shall not
be unreasonably withheld. Along with any request for Landlord's consent and
before commencement of any Work or delivery of any materials to the Premises or
the Park, Tenant shall furnish Landlord with names and addresses of contractors
and copies of any plans and specifications, contracts and necessary permits and
licenses. All such Work shall be performed in a good and xxxxxxx like manner
and in compliance with all applicable laws, ordinances and regulations. Tenant
hereby agrees to defend and indemnify Landlord against any and all claims and
liabilities of any kind connected in any way with such Work. Tenant shall pay
the cost of all such Work, and the cost of painting, restoring or repairing the
Premises and the Park occasioned by such Work.
8.4 Mechanic's Liens. Tenant shall not suffer or permit any mechanic's lien
or other lien to be filed against all or any portion of the Premises, the Real
Property or the Park because of work, labor, services, equipment or materials
supplied or claimed to have been supplied to the Premises at the request of
Tenant, or anyone holding all or any portion of the Premises through Tenant. If
any such lien is filed against all or any portion of the Premises, Tenant shall
give Landlord immediate notice of the filing and shall cause the lien to be
discharged within 10 days after Landlord's demand. If Tenant fails to discharge
such lien within such period, in addition to any other right or remedy Landlord
may have, after five days prior written notice to Tenant, Landlord may, but
shall not be obligated to, discharge the lien by paying to the claimant the
amount claimed to be due or by procuring the discharge in any other manner that
is now or may in the future be permitted by law. Any amount paid by Landlord,
together with all costs, fees and expenses in connection therewith (including
Landlord's reasonable Attorneys' Fees as defined in Section 18.20), together
with interest thereon at the Agreed Rate, shall be repaid by Tenant to Landlord
on demand by Landlord. Tenant shall indemnify and defend Landlord against all
losses, costs, damages, expenses (including reasonable Attorneys' Fees as
defined in Section 18.20), liabilities, penalties, claims, demands and
obligations, resulting from such lien.
SECTION 9. COMPLIANCE WITH LAWS
9.1 Generally. Tenant shall, at Tenant's sole cost, promptly comply with:
(a) any and all present and future laws, ordinances, orders, rules, regulations
and requirements of all federal, state, municipal and other governmental bodies
having jurisdiction over the Premises and/or the use of the Premises; and (b)
all easements, restrictions, reservations or covenants, if any, set forth in
Exhibit B, hereafter created by Tenant or requested or consented to, in writing,
by Tenant.
11
9.2 Compliance with Hazardous Materials Laws. Tenant shall comply with all
federal, state and local laws, ordinances, codes, regulations, orders and
decrees, as they now exist or are hereafter amended, including all policies,
interpretations, guidelines, directions, or recommendations ("Hazardous
Materials Laws") relating to industrial hygiene, environmental protection or the
use, analysis, generation, manufacture, storage, presence, release, disposal or
transportation of any petroleum products, flammable explosives, asbestos, urea
formaldehyde, polychlorinated biphenyls, radioactive materials or waste, or
other hazardous, toxic, contaminating or polluting materials, substances or
wastes, including any materials defined as "hazardous substances," "hazardous
wastes," "hazardous materials" or "toxic substances" (collectively, "Hazardous
Materials") under any such Hazardous Materials Laws.
Tenant shall at its own expense procure, maintain in effect and comply with
all conditions of any and all permits, licenses and other governmental and
regulatory approvals required for Tenant's use of the Premises, including
discharge of (appropriately treated) materials or waste into any sanitary sewer
system serving the Premises. Tenant shall operate the Premises in a manner
designed to prevent the release of any Hazardous Materials. If any release of
any quantity of Hazardous Materials occurs in, on, under or about the Premises
of which Tenant is or becomes aware, Tenant shall promptly notify all
appropriate governmental agencies and Landlord. Tenant shall promptly and fully
investigate, remediate and remove all such Hazardous Materials released by
Tenant, its employees, agents or invitees, in accordance with all applicable
governmental requirements and shall restore the affected portions of the Park.
Tenant shall promptly provide Landlord with copies of all reports, analyses and
correspondence in Tenant's possession relating to such release and the
remediation thereof. Upon expiration or earlier termination of this Lease,
Tenant shall cause all Hazardous Materials located in, on, under or about the
Premises as a result of the acts or omissions of Tenant to be removed from the
Premises and transported for use, storage or disposal in compliance with all
applicable Hazardous Materials Laws. Tenant shall not take any remedial action
in response to the presence of any Hazardous Materials in, on, about or under
the Premises or any Improvements situated in the Park, nor enter into any
settlement agreement, consent decree or other compromise with respect to any
claims relating to the Premises or the Park without first notifying Landlord of
Tenant's intention to do so and affording Landlord ample opportunity to appear,
intervene or otherwise protect Landlord's interest with respect thereto. At the
expiration or earlier termination of this Lease, Tenant shall remove all tanks
or fixtures which were placed on the Premises (except for any placed by
Landlord) during the term of this Lease and which contain, have contained or ate
contaminated with, Hazardous Materials.
Tenant shall notify Landlord in writing immediately upon receiving notice
of (a) any enforcement, clean-up, removal or other governmental or regulatory
action effecting the Premises instituted, completed or threatened pursuant to
any Hazardous Materials Laws; (b) any claim made or threatened by any person
against Tenant, Landlord or the Premises, relating to damage, contribution, cost
recovery, compensation, loss or injury resulting from or claimed to result from
any Hazardous Materials; and (c) any reports made to any environmental agency
arising out of or in connection with any Hazardous Materials in, on or about the
Premises or with respect to any Hazardous Materials removed from the Premises.
Tenant shall also provide to Landlord, as promptly as possible, and in any event
within five business days after Tenant first receives or sends the same, copies
of all claims, reports, complaints, notices, warnings or asserted violations
relating in any way to the Premises or Tenant's use thereof. Upon written
request of Landlord, Tenant shall promptly deliver to Landlord copies of
hazardous waste manifests, if Tenant is required by applicable law to obtain
such manifests, reflecting the legal and proper disposal of all such Hazardous
Materials removed or to be removed from the Premises. All such manifests shall
list Tenant or its agent as a responsible party and in no way shall attribute
responsibility for any such Hazardous Materials to Landlord.
9.3 Hazardous Materials Representation by Landlord. To Landlords knowledge,
Landlord is not aware of any Hazardous Materials which exist or are located on
or in the Premises, except as may be disclosed in that certain environmental
site assessment prepared by Terra Associates, Inc., dated March 16, 1996, as its
Project No. T-1285-8. Further, Landlord represents to Tenant that, to the best
of its knowledge, Landlord has not caused the generation, storage or release of
Hazardous Materials upon the Premises, except in accordance with Hazardous
Materials Laws and prudent industry practices regarding construction of the
Premises.
9.4 Indemnification. Tenant shall defend (with counsel reasonably
acceptable to Landlord) and indemnify Landlord and Landlord's officers,
directors, partners, managers, members, employees, agents, successors
12
and assigns against any and all claims, liabilities, damages, costs, penalties,
forfeitures, losses, obligations, investigation costs, remediation and removal
costs, natural resource damages and expenses (including Attorneys' Fees)
(collectively "Damages") arising in whole or in part, directly or indirectly,
from (a) the presence or release of Hazardous Materials, in, on, under, upon or
from the Premises as a result of acts or omissions of Tenant or its employees,
agents or invitees; (b) the transportation or disposal of Hazardous Materials to
or from the Premises by, at the request or with the permission of Tenant, its
employees, agents or invitees; (c) the violation of any Hazardous Materials Laws
by Tenant, its employees or agents; (d) the failure of Tenant, its employees or
agents to comply with the terms of this Section 9 or (e) the use, storage,
generation or disposal of Hazardous Materials in, on or about the Premises by
Tenant or its employees, agents contractors, assignees, sublesees or invitees
during the Term of this Lease. Except in the foregoing cases where Tenant shall
defend and indemnify Landlord, Landlord shall defend (with counsel reasonably
acceptable to Tenant) and indemnify Tenant, its officers, directors, employees,
agents, successors and assigns against any and all Damages arising out of the
presence or release of Hazardous Materials in, on or about the Premises released
by Landlord, its employees, agents, contractors or invitees (other than Tenant).
The parties recognize that neither party is indemnifying the other for Damages
arising out of acts of third parties not under either party's control. The
respective rights and obligations of Landlord and Tenant under this Section 9
shall survive the expiration or earlier termination of this Lease.
9.5 Environmental Site Assessments. Upon request by Landlord during the
term of this Lease, prior to the exercise of any Renewal Term and/or prior to
vacating the Premises, Tenant shall obtain and submit to Landlord an
environmental site assessment from an environmental consulting company
reasonably acceptable to Landlord and Tenant, which assessment shall evidence
Tenant's compliance with this Section 9.
9.6 Americans with Disabilities Act. Landlord's obligations with respect to
the Building include compliance with the Americans with Disabilities Act of
1990, and all regulations and rules promulgated thereunder (the "ADA") as
existing, interpreted and enforced as of the Commencement Date. All such
compliance with the ADA shall be at Landlord's sole cost and expense, except
that Tenant shall be solely responsible for any costs resulting from (a) new
regulations or amendments to, or interpretations of, the ADA which become
effective after 'Tenant has accepted delivery of the Premises from Landlord and
which pertain to the Premises rather than the Common Area; (b) any special
requirements needed for the Park or the Premises to comply with ADA that were
caused by Tenant's specific use, requirements or configuration of the Premises;
(c) any requirements related to reasonable accommodations for any of Tenant's
current or prospective employees; and (d) operation of Tenant's business in
compliance with the ADA. If Landlord is required to make any improvement or
modification to the improvements located on the Real Property to comply with the
requirements of any amendments or regulations to or interpretations of the ADA
that become effective after the Commencement Date, the cost of such improvement
and/or modification (amortized over its useful life) shall be included in
Operating Expenses.
SECTION 10. INDEMNIFICATION
10.1 Tenant's Indemnity. Tenant shall defend (using legal counsel
reasonably acceptable to Landlord) and indemnify Landlord, its Mortgagees,
agents and employees from any claims, expenses (including Attorneys' Fees or
damages of any kind arising in connection with (a) the occupancy or use of the
Premises by Tenant, its agents, customers, employees, contractors, subtenants or
assignees; (b) Tenant's breach of its obligations under this Lease; (c) any
grossly negligent or wrongful act or omission of Tenant, its agents, customers,
employees, contractors, subtenants or assignees; or (d) Landlord's inability to
obtain prompt entry to the Building because of Tenant's security system. The
provisions of this Section 10.1 shall survive expiration or termination of this
Lease and shall include all claims against Landlord by any employee or former
employee of Tenant. Landlord and Tenant have specifically negotiated and Tenant
specifically waives any provisions of any industrial insurance act, including
Title 51 of the Revised Code of Washington, or any other employee benefit act
which might otherwise operate to release or immunize Tenant from its obligations
under this Section 10.1.
10.2 Landlord's Indemnity. Landlord shall defend (using legal counsel
reasonably acceptable to Tenant) and indemnify Tenant, its agents and employees
from any claims, expenses (including Attorneys' Fees) or damages of any kind
arising in connection with any breach by Landlord of its obligations under this
Lease and any grossly
13
negligent or wrongful act or omission of Landlord, its agents, customers,
employees or contractors. The provisions of this Section 10.2 shall survive
expiration or termination of this Lease and shall include, but not be limited
to, all claims against Tenant by any employee or former employee of Landlord.
Landlord and Tenant have specifically negotiated and Landlord specifically
waives any provisions of any industrial insurance act, including Title 51 of the
Revised Code of Washington, or any other employee benefit act which might
otherwise operate to release or immunize Landlord from its obligations under
this Section 10.2.
10.3 Limitation on Indemnities. In compliance with RCW 4.24.115 as in
effect on the date of this Lease, all provisions of this Lease pursuant to which
a party agrees to indemnify another party against liability for damages arising
out of bodily injury to persons or damage to property ("Damages") in connection
with the construction, a alteration, repair, addition to, subtraction from,
improvement to or maintenance of any improvement attached to the Property
("Indemnities") shall be limited by the provisions of this Section 10.3. None of
such Indemnities shall apply to damages caused by or resulting from the sole
negligence of the indemnitee, its agents or employees. To the extent that any
such Damages are caused by or result from the concurrent negligence of (a) the
indemnitee or its agents or employees and (b) the indemnitor or its agents or
employees, the Indemnities shall apply only to the extent of the indemnitor's
negligence. If RCW 4.24.115 is hereafter amended to eliminate or modify the
limitations on indemnities set forth therein, this Section 10.3 shall
automatically and without further act by either party be deemed amended to
remove any of the limitations contained in this Section 10.3 that are no longer
required by the then-applicable law.
10.4 Personal Property Damage. It is the intention of the parties that each
party to this Lease insure its personal property to the extent it desires.
Accordingly, notwithstanding the other provisions of this Lease, to the extent
permitted by applicable law, Tenant and Landlord each releases the other and
their agents and employees from, and waives all claims for damage to personal
property sustained by it or any occupant of the Premises. Each party agrees to
look to its insurance coverage only, if any, in the event of such loss. All
property belonging to Landlord, Tenant or any other occupant of the Premises
that is in, on or about the Premises, shall be there at the risk of Landlord,
Tenant or such other occupant only.
SECTION 11. DEFAULTS OF TENANT
11.1 Events of Default. The occurrence of any of the following ("Events of
Default") shall constitute default and breach of this Lease by Tenant:
(a) If Tenant fails to pay any installment of Fixed Rent or Additional
Rent, when and as the same shall become due and payable;
(b) If Tenant or its guarantor makes any general assignment or
arrangement for the benefit of creditors; the filing by or against Tenant
or Tenant's guarantor of a petition to have Tenant or Tenant's guarantor
adjudged a bankrupt, or a petition for reorganization or arrangement under
any law relating to bankruptcy or insolvency; the appointment of a trustee
or receiver to take possession of all or any part of Tenant's or Tenants
guarantor's assets or of Tenants interest in this Lease (Tenant shall
immediately notify Landlord upon the occurrence of any event described in
this Section 11. 1 (b)); or
(c) If Tenant fails to keep, observe or perform any other obligation,
term, covenant or condition contained in this Lease, other than those
referred to in Section 11.1 (a) or 11.1 (b).
11.2 Right to Cure. Tenant shall have the right to cure an Event of Default
referred to in Section 11.l(a) by making the required payment within 5 business
days after receiving written notice of default from Landlord. Tenant shall have
the right to cure an Event of Default referred to in Section 11.1 (b) by
securing the dismissal of a petition filed against Tenant or Tenant's guarantor,
or by securing the restoration of possession to Tenant or Tenant's guarantor,
within 30 days. Tenant shall have the right to cure an Event of Default referred
to in Section 11.1 (c) within 30 days after receiving written notice of such
default from Landlord; provided that if such failure cannot with due diligence
be cured within 30 days, Tenant shall have the right to cure the default if
Tenant commences such cure promptly and within the 30 day period and thereafter
diligently and prosecutes such cure to completion.
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11.3 Remedies for Default by Tenant. Upon Tenant's failure to cure an Event
of Default, Landlord may exercise one or more of the following remedies in
addition to any other remedies available under the laws of the State of
Washington:
(a) Landlord may terminate the Lease by notice to Tenant. Unless and
until Landlord gives Tenant written notice stating specifically that
Landlord has elected to terminate the Lease pursuant to this Section I
13(a), no termination of Tenant's right to possession of the Premises, acts
of maintenance, efforts to relet the Premises, the reletting of the
Premises or the appointment of a receiver to protect Landlord's interest
under this Lease shall constitute a termination of this Lease. Termination
shall be without prejudice to Landlord's right to recover damages for the
default.
(b) Landlord may terminate Tenant's right to possession of the
Premises, retake possession if necessary and relet the Premises upon any
reasonable terms. All Rent received by Landlord from such reletting shall
be applied first to the payment of any amounts other than Rent due
hereunder from Tenant to Landlord; second, to the payment of any costs of
such reletting and of alterations and repairs; third, to the payment of
Rent due and unpaid; and the residue, if any, shall be held by Landlord and
applied to the payment of future Rent as it becomes due under the terms of
this Lease. Upon a reletting of the Premises, Landlord shall not be
required to pay Tenant any sums received by Landlord in excess of amounts
payable in accordance with this Lease.
(c) Whether or not the Lease is terminated or possession is retaken,
Landlord may recover all damages caused by the Event of Default. Landlord
may, in one action, recover accrued damages plus damages attributable to
the remaining Lease Term equal to the present value of the difference
between the aggregate Fixed Rent and Additional Rent under this Lease for
the remaining portion of the Lease Term and the Rent received or to be
received by Landlord during the same period under any new lease. In the
computation of present value, a discount at the rate of 6% per annum shall
be employed. Landlord's damages shall include all of Landlord's reasonable
expenses in connection with any reletting or attempt to relet, including
all costs of retaking possession of the Premises, brokerage commissions,
costs of preparing and altering the Premises and reasonable Attorneys'
Fees.
SECTION 12. INSOLVENCY
Landlord and Tenant (as either debtor or debtor-in-possession) agree that
if a petition is filed by or against Tenant (each a "Petition") tinder any
chapter of Title 11 of the United States Code as it now exists or is hereafter
amended (the "Bankruptcy Code"), and is not dismissed within 30 days: (a) Tenant
shall perform each and every obligation of Tenant under this Lease, until such
time as this Lease is either rejected or assumed; (b) adequate protection for
the performance of Tenant's post-Petition but pre-assumption or pre-rejection
obligations tinder this Lease shall be provided within 30 business days after
the filing and shall be in the form of a security deposit to be held by the
court or an independent escrow agent approved by the court, in an amount equal
to all amounts then payable by Tenant to Landlord under the terms of the Lease
during a one-month period; (c) Tenant shall give Landlord at least 30 days prior
written notice of any abandonment of the Premises; (d) if Tenant abandons the
Premises, Tenant stipulates to the entry, without notice to any party, of an ex
parte order modifying the stay to permit Landlord to take reasonable steps to
secure the Premises, including changing the locks, putting lights on timers and
covering the windows; (e) if Tenant has failed to timely and fully perform any
of its obligations under this Lease before the filing of the Petition, whether
or not Landlord has given Tenant written notice of said failure and whether or
not any time period for performance or cure set forth in Section 11 has expired
before the filing of the Petition, Tenant shall be deemed to have been in
default on the date the Petition was filed; (1) Tenant shall provide Landlord
with 30 days prior written notice of the proposed assumption or assignment of
this Lease, which notice shall set forth (1) the compensation for pecuniary loss
to be provided to Landlord, (2) the adequate assurance of prompt cure and future
performance to be provided to Landlord, (3) the name, address, state and federal
tax identification numbers, and any other federal, state or local registration
numbers, of any proposed assignee and (4) all of the terms and conditions of any
proposed assignment; (g) prompt cure of defaults shall mean cure within 30 days
after assumption; (h) adequate assurance of future performance of this Lease
after assumption by Tenant or any proposed assignee will require that Tenant or
the proposed assignee deposit with Landlord as security for such future
performance, an amount equal to 3 months of Fixed Rent and Additional Rent; and
(i) if this Lease is to be
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assigned, adequate assurance of future performance by the proposed assignee
shall also require that (1) the assignee demonstrate that it has the business
experience and financial ability to perform Tenant's obligations under this
Lease and operate the Premises in the manner contemplated by this Lease, (2) the
Premises will remain a single space and no physical changes of any kind will be
made to the Premises without complying with the applicable provisions of this
Lease and (3) the assignee assumes any obligations of Tenant to pay for
improvements to the Premises constructed by Landlord, which obligations are
contained in any agreement or instrument other than this Lease. Tenant shall do
all other things of benefit to Landlord that are otherwise permitted under the
Bankruptcy Code.
SECTION 13. DAMAGE AND RESTORATION
13.1 Repair Obligations. Subject to the terms of Section 13.2, if any of
the Premises, Common Areas or improvements located on the Real Property is
damaged by fire or other casualty for which Landlord is carrying or required by
this Lease to carry insurance, Landlord shall repair such damage at its expense.
If the damage is an insured loss, as long as Landlord is diligently pursuing
collection of the insurance proceeds, repair shall commence upon receipt of the
proceeds, provided that repair shall commence within 90 days after the damage.
Landlord shall not be obligated to repair Tenant's personal property, equipment
or improvements installed by Tenant. Landlord's obligation to repair under this
Section 13.1 shall be limited to the extent of the insurance proceeds available
to Landlord for such restoration. Tenant agrees that it will proceed with
reasonable diligence at its sole cost to rebuild, repair and/or replace its
signs, fixtures and equipment.
13.2 Termination Rights. If any damage or destruction to the Premises
cannot in Landlord's reasonable judgment be repaired within 180 days after the
date of damage, Landlord shall give Tenant notice thereof within 30 days after
the date of damage, and either Tenant or Landlord may terminate this Lease by
delivering written notice to the other within 30 days after the date Tenant
receives Landlord's notice. If (a) the cost to repair any damage to the Premises
exceeds 50% of the insurable replacement cost of the Premises or (b) the portion
of the damage that is uninsurable through reasonable insurance policies
typically maintained by landlords in the greater Seattle-Bellevue-Renton
metropolitan area exceeds $100,000, and Landlord elects not to repair such
damage, then Landlord shall have the right to terminate this Lease by written
notice to Tenant given within 60 days after the date such damage occurred. If
the cost to repair damage to the Premises that occurs during the last 24 months
of the Lease Term exceeds 30% of the insurable replacement cost of the Premises,
either party shall have the option to terminate this Lease by giving written
notice to the other party within 60 days after the date of damage, unless Tenant
exercises its renewal option within 10 days after receiving Landlord's notice.
If the cost to repair damage to the improvements located on the Real Property
exceeds 50% of the insurable replacement cost of all improvements located on the
Real Property, whether or not such damage can be repaired within 180 days,
Landlord may, by giving written notice to Tenant within 90 days after the date
of such damage, terminate this Lease as of a date specified in the notice, which
date may not be less than 45 days or more than 90 days after the date of the
notice.
13.3 Rent Apportionment and Abatement. If the Premises are damaged, Fixed
Rent and Additional Rent shall be abated by the same percentage as the
percentage of the Premises damaged from the date of damage to the date the
damage is repaired or this Lease terminates.
SECTION 14. CONDEMNATION
14.1 General Rights Upon Condemnation. If all or any portion of the Real
Property or the Premises are taken under the power of eminent domain exercised
by any governmental or quasi-governmental authority (the "Condemning
Authority"), or are conveyed in lieu thereof (a "Condemnation"), this Lease
shall automatically terminate as to the portion condemned as of the date that
possession and use are transferred to the Condemning Authority (the
"Condemnation Date"). The Landlord shall have the exclusive right to grant
possession and use to the Condemning Authority. Landlord shall give Tenant
written notice (a "Condemnation Notice") specifying the extent of the taking and
the anticipated Condemnation Date promptly after it receives such information.
If more than 35% of the Premises or more than 20% of the Common Areas are taken
by Condemnation, either Landlord or Tenant shall have the right to terminate
this Lease by giving written notice to the other within 60 days after the date
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of the Condemnation Notice. If more than 30% of the Buildings owned by Landlord
in the Park are taken by Condemnation and Landlord elects not to repair,
restore, alter or reconstruct the same, Landlord may elect to terminate this
Lease by giving written notice to Tenant within 60 days after the date of the
Condemnation Notice. Any such termination shall be effective as of the
Condemnation Date. If this Lease is terminated pursuant to this Section 14.1,
Landlord and Tenant shall be released from any liability arising after the
termination date, but all Fixed Rent, Additional Rent and other amounts payable
under this Lease shall be paid to the termination date. If this Lease will not
terminate, the Fixed Rent shall be reduced pro-rata based upon the percentage of
Tenant's floor area condemned, and Tenant's Pro Rata Share shall be
recalculated. Landlord shall make such repairs and alterations necessary to
restore the portion of the Premises not condemned to a condition reasonably
satisfactory for Tenant's use; provided that at least 3 years of the Lease Term
remain and that Landlord's obligation shall be limited to the amount of the
Condemnation Award available therefore after deducting all costs of obtaining
the Condemnation Award. Within 60 days after the amount of the Condemnation
Award available for restoration is known, Landlord shall give Tenant reasonable
notice of the repairs and alterations Landlord anticipate making to restore the
portion of the Promises not condemned. If Tenant reasonably determines that the
anticipated repairs and alterations are insufficient to restore such portion of
the Premises to a condition reasonably satisfactory for Tenant's use, Tenant
shall have the right to terminate this Lease by giving notice to Landlord within
10 days after receiving Landlord's notice describing the repairs and
alterations.
14.2 Award. Landlord shall be entitled to receive the entire award in any
condemnation proceeding ("Condemnation Award"), including any award for the
value of any unexpired portion of the Term of this Lease. Tenant shall have the
right to claim and recover from the Condemning Authority, but not from Landlord,
such compensation as may be separately recoverable by Tenant for Tenant's moving
expenses or the taking of Tenant's personal property other than Tenant's
leasehold interest; provided that such compensation may not reduce the amount
awarded to Landlord.
SECTION 15. ASSIGNMENT, SUBLETTING, ETC.
15.1 Permitted Subletting and Assigning by Tenant. Provided that Tenant is
not in default at the time, and subject to other applicable provisions of this
Lease, Tenant shall have the right to sublet the Premises (in whole or in part)
to a Successor Corporation or a Related Corporation for so long as it remains a
Related Corporation of Tenant. "Related Corporation" means a corporation,
limited liability company, partnership or other business entity, which, directly
or indirectly, is owned by or under common ownership with Tenant. "Successor
Corporation" means a corporation, limited liability company, partnership or
other business entity into or with which Tenant is merged or consolidated or to
which all or substantially all of the assets and goodwill of Tenant are
transferred, which assumes substantially all of the liabilities of Tenant and
has a net worth (determined in accordance with generally accepted accounting
principles) at least equal to the net worth of Tenant immediately prior thereto.
15.2 Restriction on Transfer. Except as permitted by Section 15.1, Tenant
shall not sublet all or any portion of the Premises nor assign, mortgage, pledge
or otherwise encumber or transfer this Lease, or any interest herein, or in any
manner assign, mortgage, pledge, or otherwise encumber or transfer its interest
or estate in all or any portion of the Premises (each a "Transfer") without
obtaining Landlord's prior written consent in each and every instance, which
consent shall not be unreasonably withheld or delayed. For purposes of this
Section 15, a change in control of Tenant, however effected, including by
operation of law, shall be deemed to be a Transfer of this Lease. For the
purposes of this Section 15.2, the term "control" shall mean the possession of
the power to direct or cause the direction of the management and policies of
Tenant, whether through ownership of voting securities, by contract or
otherwise. The change in control provisions of this Section 15.2, however,
shall not apply to any Tenant corporation the outstanding voting stock of which
is listed on a national securities exchange or actively traded over-the-counter.
In determining whether or not to grant its consent to a Transfer request, Tenant
agrees that failure to satisfy any one of the following factors, or any other
reasonable factor, will be reasonable grounds for Landlord denying Tenant's
request: (a) the financial strength of the proposed subtenant/assignee, as
evidenced by audited financial statements, certified by an independent certified
public accountant (or, if such audited statements are unavailable, financial
statements may be certified by the chief financial officer of any such proposed
17
subtenant/assignee), is not sufficient to reasonably assure Landlord that it can
perform Tenant's obligations under this Lease, or is not at least equal to that
of Tenant as of the date of this Lease; (b) the use of the Premises by the
proposed subtenant/assignee will violate any agreements affecting the Premises,
the Landlord or the Park, or will constitute a nuisance, disturb or endanger
occupants of the Park, interfere with their use of their respective premises, or
tend to injure the reputation of the Park; and/or (c) the assignment or sublease
would be to any person or entity which is (or immediately prior to such
subletting or assignment was) an occupant or tenant of the Park.
15.3 Transfer Requirements. Any transfer permitted under the terms of
Section 15.1 or consented to by Landlord under the terms of Section 15.2 or
Section 15.4 shall comply with the following requirements:
(a) Any assignment of this Lease shall transfer to the assignee all of
Tenant's right, title and interest in this Lease and all of Tenant's estate
or interest in the Premises.
(b) Any assignee shall assume, by written, recordable instrument, all
of Tenant's obligations under this Lease. Such assumption agreement shall
state that the same is made by the assignee for the express benefit of
Landlord as a third party beneficiary. A copy of the assignment and
assumption agreement, in form and content satisfactory to Landlord, fully
executed and acknowledged by assignee, together with a certified copy of a
properly executed corporate resolution (if the assignee is a corporation)
authorizing the execution and delivery of such assumption agreement, shall
be sent to Landlord at least 10 days before the effective date of the
assignment.
(c) In the case of a subletting, a copy of any sublease fully executed
and acknowledged by Tenant and the sublessee shall be mailed to Landlord at
least 10 days before the effective date of the subletting.
(d) Any Transfer shall be subject to all the provisions, covenants and
conditions of this Lease. Tenant-transferor, any guarantor or guarantors
of this Lease and any assignee or assignees shall remain liable under this
Lease, as it may be amended from time to time, without notice to the
assignor or any guarantor.
(e) Tenant shall reimburse Landlord for any and all reasonable costs
of Landlord, including reasonable attorneys' fees paid or payable to
outside counsel, occasioned by such assignment or subletting.
15.4 Restriction From Further Assignment. Notwithstanding any consent by
Landlord to any Transfer, no sublessee shall assign its sublease or further
sublease all or any portion of the Premises, and no assignee shall further
assign its interest in this Lease or its interest or estate in all or any
portion of the Premises, or sublease all or any portion of the Premises, without
Landlord's prior written consent in each and every instance. Landlord and
Tenant agree that, in determining whether or not to grant its consent, Landlord
may consider any reasonable factor, including the factors described in Section
15.2, and failure to satisfy any one of the factors will be reasonable grounds
for denying the request.
15.5 Landlord's Termination Rights. Except for transfers permitted by
Section 15.1, notwithstanding anything contained in this Lease to the contrary,
if Tenant desires to (a) assign its entire interest in this Lease, or its
interest or estate in the entire Premises; (b) sublet the entire Premises; or
(c) sublet any portion of the Premises for the entire then remaining portion of
the Lease Term, Tenant shall give written notice of its intention to do so to
Landlord 60 days or more before the effective date of such proposed assignment
or subletting. Landlord may, at any time within 30 days after receiving such
notice from Tenant, cancel this Lease or, in the case of (c), the portion of the
Premises which Tenant wishes to sublet, by giving Tenant written notice of its
intention to do so, in which event such cancellation shall become effective upon
the date specified by Landlord, which date shall not be less than 30 days nor
more than 90 days after its receipt by Tenant. Landlord may enter into a direct
lease with the proposed sublessee or assignee or with any other persons without
obligation or liability to Tenant, its assignees, sublessees or their respective
successors, assigns, agents or brokers.
15.6 Sharing of Excess Rent. Except for transfers permitted by Section
15.1, if Landlord consents to Tenant assigning its interest under this Lease or
subletting all or any portion of the Premises, Tenant shall pay to Landlord (in
addition to all other amounts payable by Tenant under this Lease) 80% of the net
rents and other consideration payable by such assignee or subtenant in excess of
the Rent and other amounts otherwise payable by
18
Tenant from time to time under this Lease, after deducting all of Tenant's
reasonable expenses in connection with such assigning or subletting, including
all brokerage commissions, legal expenses, reasonable Attorneys' Fees,
alteration costs, and expenses of preparing the Premises. The additional amount
payable by Tenant shall be determined by application of the rental rate per
square foot for the Premises or any portion thereof sublet. The additional
amount shall be paid to Landlord immediately upon receipt by Tenant. If any part
of the consideration received by Tenant for an assignment or subletting will be
payable other than in cash, the payment to Landlord shall be in cash for its
share of non-cash consideration based upon its fair market value.
SECTION 16. SUBORDINATION, NONDISTURBANCE, NOTICE TO MORTGAGEE
16.1 Subordination by Tenant. This Lease and all rights of Tenant
herein, and all interest of Tenant in the Premises, shall be subject and
subordinate to the lien of any Mortgage which at any time may be placed upon all
or any portion of the Park by Landlord. For the purposes of this Lease, the term
"Mortgage" means any mortgage, deed of trust, sale and leaseback used for
financing purposes, or other security instrument; any replacements, renewals,
amendments, modifications, extensions or refinancings thereof, and each and
every advance made under any Mortgage. For the purposes of this Lease, the term
"Mortgagee" means the beneficial owner of any encumbrance created by a Mortgage
and, in the case. of a sale and leaseback, the leaseback lessor. In order to
confirm such subordination, Tenant agrees at any time, and from time to time on
demand of Landlord, to execute and deliver to Landlord any instruments, releases
or other documents that may be reasonably required for the purpose of confirming
the subordination, including an instrument in the form of Exhibit E. So long as
Tenant is not in default in the performance of any of Tenant's obligations under
this Lease, such subordination shall not interfere with Tenant's right to quiet
enjoyment under this Lease.
16.2 Attornment. If any Mortgagee succeeds to the rights of Landlord
under this Lease or to ownership of the Premises, whether through possession,
foreclosure or the delivery of a deed to the Premises, upon the written request
of such Mortgagee, Tenant shall attorn to and recognize such Mortgagee as
Tenant's landlord under this Lease, and shall promptly execute and deliver any
instrument that such Mortgagee may reasonably request to evidence such
attornment.
SECTION 17. SIGNS
Tenant may, at its sole cost, erect signs on the exterior or interior of
the Building, provided that such sign or signs (a) do not cause any structural
or other damage to the Building; (b) do not violate applicable governmental
laws, ordinances, rules or regulations; (c) do not violate any existing
restrictions affecting the Premises; (d) are in accordance with the sign
standards set forth on Exhibit F attached hereto; and (e) are approved in
advance by Landlord (which approval shall not be unreasonably withheld) and the
City of Xxxxxxx. Tenant, upon vacating the Premises or removing or altering its
signs for any reason, shall repair, paint and/or replace the Building surfaces
where its signs were attached. Landlord shall, at its cost, provide a monument
sign for the Park and allow Tenant, at Tenant's sole cost, to install its panel
thereon.
SECTION 18. MISCELLANEOUS PROVISIONS
18.1 Access to Premises. Tenant shall have free access to the Premises
all day every day. Tenant shall permit Landlord and its authorized
representatives to enter the Premises at all reasonable times after reasonable
notice (except in case of emergency) for the purpose of inspecting the Premises,
making any changes to Building systems, making any repairs required or permitted
by the terms of this Lease or conducting any reasonable test or environmental
audit of the Premises or Tenant's operation or use of the Premises to determine
Tenant's compliance with this Lease. Landlord may, during the progress of any
such work, store necessary materials, tools and equipment at the Premises.
Landlord shall not be liable for, and the obligations of Tenant shall not be
affected by, inconvenience, disturbance, loss of business or other damage caused
by Landlord in connection therewith, provided that Landlord makes reasonable
efforts to avoid interfering with the conduct of Tenant's business.
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18.2 Exhibition of Premises. Landlord shall have the right during normal
business hours at any time during the Lease Term, after reasonable notice, to
enter the Premises to exhibit the same for the purpose of mortgaging or selling
the Real Property and, during the final 6 months of the Lease Term and/or any
time after Tenant gives Landlord a termination notice pursuant to Section 1.3 to
exhibit the Premises to prospective Tenants. Landlord shall have the right to
display on the Premises, in a manner that does not unreasonably interfere with
Tenant's business, signs indicating that the Premises are for sale and, during
the final 6 months of the Lease Term and/or anytime after Tenant give Landlord a
termination notice pursuant to Section 1.3, signs indicating that the Premises
are for rent.
18.3 Estoppel Certificates. Landlord and Tenant shall, each without
charge at any time and from time to time, within 10 business days after written
request by the other party, execute and deliver to the requesting party or any
person whom the requesting party may designate, an estoppel certificate
certifying: (a) that this Lease (and all guaranties, if any) is unmodified and
in full force and effect (or, if there have been modifications, that the same is
in full force and effect, as modified, and stating the modifications); (b) the
dates to which the Fixed Rent or Additional Rent have been paid in advance; (c)
whether or not there are then existing any breaches or defaults by such party or
the other party known by such party and specifying such breach or default, if
any; (d) whether or not there are then any setoffs or defenses against the
enforcement of any term of this Lease (or of any guaranties) (and, if so,
specifying the same and the steps being taken to remedy the same); and (e) such
other statements or certificates as Landlord or any Mortgagee may reasonably
request, including an Estoppel Certificate in the form. attached as Exhibit 0.
It is the intention of the parties that any statement delivered pursuant to this
Section 18.3 may be relied upon by any persons dealing with Landlord, Tenant or
the Premises.
18.4 Notices. All notices, demands and requests which may be or are
required to be given by either party to the other shall be in writing and shall
be sent by United States certified mail, postage prepaid or by a nationally
recognized independent overnight courier service, addressed to Landlord at Opus
Northwest, L.L.C., Attn: Xxxx Xxxxxxx, Vice President, 000 000xx Xxxxxx XX,
Xxxxx 000, Xxxxxxxx, XX 00000, with a copy to each of Xxxxxxx Brain PLLC, Attn:
Xxxxxxx X. Xxxxxxx, P.S., 56th Floor, Key Tower, 000 Xxxxx Xxxxxx, Xxxxxxx, XX
00000-0000 and Opus U.S. Corporation, Attn: Legal Department 800 Opus Center,
0000 Xxxx Xxxx Xxxx, Xxxxxxxxxx, XX 00000, and addressed to Tenant at Primex
Aerospace Company, Attn: Xxxxx Xxxxx, Vice President, X.X. Xxx 00000 (98073-
9709), 00000 Xxxxxxx Xx. X.X., Xxxxxxx, XX 00000-0000 with a copy to Primex
Aerospace Company, Attn: General Counsel, X.X. Xxx 00000 (98073-9709), 00000
Xxxxxxx Xx. X.X., Xxxxxxx, XX 00000-0000 or to such other address which is not a
post office box as either party may from time to time designate by written
notice to the other. Any notice, demand or request which is given as described
shall be deemed to be given on the date it is delivered to a courier or 3 days
after it is deposited in the mail.
18.5 Annual Statements. Upon request by Landlord at any time more than
135 days after the end of Tenant's applicable fiscal year, Tenant shall promptly
deliver to Landlord a copy of Tenant's financial statement for such fiscal year,
and a financial statement of any guarantor of Tenant's obligations under this
Lease for such guarantor's fiscal year, which financial statement or statements
shall be prepared in accordance with generally accepted accounting principles
and certified as correct by the auditors or the Chief Financial Officer of
Tenant or its guarantors, as the case may be. Such financial statements may
contain confidential or proprietary information not available to the general
public and shall only be used by Landlord to evaluate the Tenant's financial
condition and shall, except as follows, be kept confidential. Landlord may
further disclose such financial statements to its mortgage lender (or potential
lender), accountants or other financial advisors or analysts, or any potential
purchaser of the Project, provided that they have also agreed to. the foregoing
limit on use and confidentiality
18.6 Landlord's Continuing Obligations. The term "Landlord," as used in
this Lease so far as obligations on the part of Landlord are concerned, shall
mean only the owner or owners of fee title to the Premises at the time in
question, and upon any transfer, the then grantor shall be automatically freed
and relieved after the date of such transfer of all liability for the
performance of any obligations on the part of the landlord contained in this
Lease thereafter to be performed, provided that any funds in the hands of such
landlord or the then grantor at the time of such transfer, in which Tenant has
an interest, shall be turned over to the grantee, and any amount then due and
payable to Tenant by Landlord or the then grantor under any provision of this
Lease shall be paid to Tenant. The Landlord's obligations contained in this
Lease shall, subject to the aforesaid, be binding on Landlord's
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successors and assigns, during and in respect of their respective successive
periods of ownership. Nothing herein contained shall be construed as relieving
Landlord of its obligations under Section 2 of this Lease, or releasing Landlord
from any obligation to complete the cure of any breach by Landlord during the
period of its ownership of the Premises.
18.7 Surrender of Premises. At the expiration or termination of the term
of this Lease, Tenant shall surrender the Premises in the same condition it was
in upon delivery of possession on the Commencement Date, reasonable wear and
tear excepted, shall surrender all keys to the Premises to Landlord at the place
then fixed for the payment of Fixed Rent and shall inform Landlord of all
combinations on any locks, safes and vaults. On or before expiration or
termination of this Lease, Tenant shall remove all of its personal property and
any fixtures, alterations and improvements installed by Tenant which Landlord
directs Tenant to remove (other than Landlord's Improvements). Tenant shall
repair any damage to the Premises caused by such removal and restore the
affected Portions of the Premises. Tenant shall be liable for Fixed Rent and
Addition Rent until the removal, repair and restoration has been completed. Any
and all such property, alterations and improvements not so removed within 30
days after expiration or termination of this Lease shall, at Landlord's option,
become the exclusive property of Landlord or be disposed of by Landlord, at
Tenant's cost, without further notice to or demand upon Tenant. Tenant agrees
that its failure to remove any such property, alterations or improvements within
30 days after the expiration or earlier termination of this Lease shall be
conclusive evidence of Tenant's intention to abandon the same. If the Premises
is not surrendered as set forth above, Tenant shall indemnify, defend and hold
Landlord harmless against loss or liability resulting from the delay by Tenant
in so surrendering the Premises, including, without limitation, any claim made
by any succeeding occupant based upon such delay. Tenant's obligation to observe
or perform this covenant shall survive the expiration or other termination of
this Lease.
18.8 Rules and Regulations. Tenant shall perform, observe and comply
with all reasonable nondiscriminatory rules and regulations established by
Landlord for the Park from time to time, including the Rules and Regulations
attached as Exhibit H.
18.9 Severability. If any covenant, condition, provision, term or
agreement of this Lease shall, to any extent, be held invalid or unenforceable,
the remaining covenants, conditions, provisions, terms and agreements of this
Lease shall not be affected thereby, but each covenant, condition, provision,
term or agreement of this Lease shall be valid and in force to the fullest
extent permitted by law.
18.10 Successors and Assigns. Subject to provisions of this Lease limiting
assignment or sublease by Tenant, the covenants contained in this Lease shall
bind and inure to the benefit of Landlord, its successors and assigns, and
Tenant and its permitted successors and assigns.
18.11 Relationship of Parties. This Lease does not create the relationship
of principal and agent, partnership, joint venture, association or any other
relationship between Landlord and Tenant, other than that of landlord and
tenant.
18.12 Prior Agreements. This Lease, together with the attached exhibits
and the written agreements concurrently or hereafter executed and/or delivered
pursuant to or in connection with this Lease, embody the entire agreement
between the parties relating to the subject matter hereof, and supersede all
prior agreements and understandings between the Landlord and Tenant, if any,
relating to the subject matter hereof. Tenant acknowledges that neither Landlord
nor any agent of Landlord has made any representation or warranty not contained
in this Lease with respect to the Premises, the Building or the suitability or
fitness of either for the conduct of Tenant's business or for any other purpose.
18.13 No Waiver. No failure by Landlord or by Tenant to insist upon the
performance of any of the terms of this Lease or to exercise any right or remedy
available for a breach thereof, and no acceptance by Landlord of full or partial
rent from Tenant or any third party during the continuance of any such breach,
shall constitute a waiver of any such breach or of any of the terms of this
Lease. None of the terms of this Lease to be kept, observed or performed by
Landlord or by Tenant, and no breach thereof, shall be waived, altered or
modified except by a written instrument executed by the waiving party. No
express waiver shall waive any default other than the default specified in the
express waiver. An express waiver waives the specified default only for the time
and to the extent therein stated.
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18.14 No Merger. There shall be no merger of this Lease or the leasehold
estate created by this Lease with any other estate or interest in the Premises
by reason of the fact that the some person or entity may acquire, bold or own
directly or indirectly, (a) this Lease, the leasehold interest created by this
Lease or any interest therein and (b) any such other estate or interest in the
Premises, or any portion thereof. No such merger shall occur unless and until
all persons and entities having an interest (including a security interest) in
(i) this Lease or the leasehold estate created thereby and (ii) any such other
estate or interest in the Premises, or any portion thereof, shall join in a
written instrument expressly effecting such merger and duly record the same.
18.15 Landlord's Liability Limited. Tenant recognizes that Landlord is a
limited liability company. Tenant expressly agrees, anything herein to the
contrary notwithstanding, that each and all of the representations and
agreements made by Landlord are intended to bind only that portion of Landlord's
property leased hereunder. No personal liability or personal responsibility is
assumed by, nor shall at any time be asserted or enforced against, any of the
members, managers, shareholders, partners, directors, officers, employees or
agents of Landlord on account of any agreements of Landlord contained in this
Lease. If Landlord fails to perform any obligation of Landlord under this Lease
and as a result Tenant recovers a money judgment against Landlord, such judgment
shall be satisfied only out of the proceeds of sale received upon execution of
such judgment and levied against the right, title and interest of Landlord in
the Real Property. Any claim. which Tenant may have against Landlord for
default in performance of any of Landlord's obligations herein contained shall
be deemed waived unless suit is brought thereon within 6 months of Landlord's
sale or conveyance of its interest in the Real Property.
18.16 Holding Over. If Tenant fails to surrender possession of the
Premises upon termination or expiration of this Lease, and if Tenant obtains
Landlord's written consent to Tenant's continued occupancy, Tenant's occupancy
shall be deemed to be a month to month tenancy, subject to all the terms of this
Lease that can apply to a month to month tenancy, except that Fixed Rent shall
be escalated to 150% of the rate payable by Tenant during the calendar month
immediately preceding such termination or expiration (the "Latest Rent") and
Landlord may terminate such month to month tenancy upon 20 days notice to
Tenant. If Tenant fails to surrender possession of the Premises upon termination
or expiration of this Lease, and if Tenant does not obtain Landlord's written
consent to Tenant's continued occupancy, Tenant shall be deemed a trespasser and
shall be liable to Landlord for all damages sustained by Landlord as a result
thereof, together with Fixed Rent at a rate equal to 150% of the Latest Rent.
18.17 Force Majeure. Whenever a period of time is herein prescribed for
action to be taken by either party, said party shall not be liable or
responsible for, and there shall be excluded from the computation of any such
period of time, any delays due to ("force majeure"): strikes, riots, acts of
God, delay caused by the failure of a governmental agency to issue a building or
occupancy permit despite diligent pursuit thereof, shortages of labor or
materials because of priority or similar regulations or order of any
governmental or regulatory body, war, or any other causes of any kind which are
beyond the reasonable control of said party. Lack of funds or inability to
obtain financing shall not be an event of force majeure.
18.18 Landlord Approvals. Any approval by Landlord or Landlord's
architects and/or engineers of any of Tenant's drawings, plans and
specifications which are prepared in connection with any construction at the
Premises shall not be construed as a representation or warranty of Landlord as
to the adequacy or sufficiency of such drawings, plans and specifications, or
the improvements to which they relate.
18.19 Survival. All obligations (together with interest on monetary
obligations at the Agreed Rate) accruing before expiration of the Lease Term
shall survive the expiration or other termination of this Lease.
18.20 Attorneys' Fees. Upon any litigation or other proceeding between the
parties hereto, declaratory or otherwise, arising out of this Lease, the
prevailing party shall recover from the nonprevailing party all costs, damages
and expenses, including attorneys', paralegals' clerical and consultants' fees
and charges actually expended or incurred in connection therewith, including for
appeals or any bankruptcy proceeding (collectively "Attorneys' Fees"). In
addition, if Landlord engages counsel to enforce the terms of this Lease,
including for the purpose of preparing a delinquency notice, Tenant shall be
required to reimburse Landlord for all Attorneys' Fees incurred before the
subject default is considered cured.
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18.21 Quiet Enjoyment. Landlord warrants and represents that Tenant,
provided it complies with its obligations hereunder, shall have quiet enjoyment
of the Premises during the Lease Term without disturbance by Landlord or any
person claiming by, through or under Landlord.
18.22 Brokers. Landlord and Tenant each represent to the other that it has
dealt directly only with CB Xxxxxxx Xxxxx, Inc. ("CB") as broker in connection
with this Lease. Landlord and Tenant shall each defend and indemnify the other
against all claims of other brokers, finders or any like third party claiming
any right to a commission or compensation by or through their acts. Landlord
shall be responsible for payment of a commission to CB in accordance with the
written agreement between Landlord and CB.
18.23 Preparation of Lease; Governing Law. Landlord and Tenant have
negotiated this Lease, have had an opportunity to be advised by legal counsel
respecting the provisions contained herein and have had the right to approve
each and every provision hereof. Therefore, this Lease shall not be construed
against either Landlord or Tenant as a result of the preparation of this Lease
by or on behalf of either party. This Lease shall be governed by the laws of the
State of Washington. Any suit arising from or relating to this Lease shall be
brought in the county in which the Premises are located, and the parties hereto
waive the right to be sued elsewhere.
18.24 Construction. Words and phrases used in the singular shall be deemed
to include the plural and vice versa. Nouns and pronouns used in any particular
gender shall be deemed to include any other gender. When the word "including" is
used in this Lease, it shall mean "including, but not limited to." Whenever
words such as "herein," "hereunder," etc., are used in this Lease, they shall
mean and refer to this Lease in its entirety and not to any specific section,
paragraph or other part of this Lease. The word "person" includes any natural
person, corporation, firm, partnership, limited partnership, limited liability
company, trust, estate, unincorporated organization, or other legal or business
entity, however designated or constituted. "Business day" means days when
national banks are open in Seattle, Washington and Minneapolis, Minnesota. The
caption of each section of this Lease is for convenience of reference only, and
in no way defines, limits or describes the scope or intent of such section.
18.25 Time Is of the Essence. Time is of the essence with respect to the
performance of every provision of this Lease in which time of performance is a
factor.
18.26 Joint and Several Liability. All parties signing this Lease as
Tenant shall be jointly and severally liable for all obligations of Tenant.
18.27 No Oral Amendments. This Lease may be modified or amended only by an
agreement in writing signed by the parties hereto. No receipt of money by
Landlord from Tenant or any other person after termination of this Lease, the
service of any notice, the commencement of any suit or final judgment for
possession of the Premises, shall reinstate, continue or extend the Term of this
Lease, affect any such notice, demand or suit, or imply consent for any action
for which Landlord's consent is required, unless specifically agreed to in
writing by Landlord. Any amounts received by Landlord may be allocated to any
specific amounts due from Tenant to Landlord as Landlord determines.
18.28 Net Lease. Landlord and Tenant each agree it is their intention
that: (a) this Lease shall be interpreted and construed as an absolute net
lease; (b) all Fixed Rent and Additional Rent shall be paid by Tenant to
Landlord without abatement, deduction, suspension or setoff, except as otherwise
specifically provided in this Lease; (c) the obligations of Landlord and Tenant
are separate and independent covenants; (d) all costs or expenses of any kind,
general or special, ordinary or extraordinary, foreseen or unforeseen, that may
be necessary or required in and about the Premises or any portion thereof,
during Tenant's possession or authorized use thereof shall be paid by Tenant,
except as specifically provided otherwise in this Lease; (e) all provisions of
this Lease are to be interpreted and construed in light of the intentions
expressed in this Section 18.28; and (f) the Fixed Rent specified in Section 3.1
shall be absolutely net to Landlord.
18.29 Waiver of Jury Trial. Landlord and Tenant each unconditionally
waives any right to trial by jury to resolve any claim asserted in connection
with any matter arising in connection with this Lease, the Premises, the Real
Property, the Park or use or occupancy of the Premises.
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18.30 Amendment of Legal Description. Landlord and Tenant acknowledge that
as of the date this Lease is executed Landlord is in the process of dividing the
Real Property described on Exhibit B into three lots through use of the binding
site plan procedure. Accordingly, the Real Property described on Exhibit B
includes more Real Property than the lot upon which Building A is to be located.
As soon as reasonably practical after the binding site plan has been approved by
the City of Xxxxxxx and recorded in the official records of King County,
Washington, Landlord and Tenant shall execute an amendment to this Lease
amending the Legal Description set forth on Exhibit B so that it includes only
the lot upon which Building A is located, as created pursuant to the binding
site plan. Thereafter, the phrase "Real Property" as used in this Lease shall
mean only the lot upon which Building A is located.
18.31 Exhibits. All exhibits enumerated in this Section 18.31 and/or now
or hereafter attached to this Lease are incorporated into this Lease in full by
this reference. Each party agrees to perform any obligations to be performed by
it pursuant to the provisions of all such exhibits.
EXHIBITS:
--------
Exhibit A: Site Plan of the Park
Exhibit A-1: Floor Plan
Exhibit B: Legal Description
Exhibit C: Outline Specifications
Exhibit C-1: Space Plan
Exhibit D: Final Plans and Specifications
Exhibit E: Form of Subordination Agreement
Exhibit F: Sign Standards
Exhibit G: Form of Estoppel Certificate
Exhibit H: Rules and Regulations
IN WITNESS WHEREOF, each of the parties hereto has caused this Lease to be
duly executed as of the day and year first above written.
LANDLORD:
OPUS NORTHWEST, L.L.C.,
a Delaware limited liability company
By:_______________________________________________
Xxxx Xxxxxxx, Vice President
TENANT:
PRIMEX AEROSPACE COMPANY,
a Washington corporation
By:_______________________________________________
Name________________________________________
Title:______________________________________
STATE OF WASHINGTON )
)ss.
COUNTY OF KING )
24
I certify that I know or have satisfactory evidence that Xxxx Xxxxxxx
is the person who appeared before me, and said person acknowledged that he
signed this instrument, on oath stated that he was authorized to execute the
instrument and acknowledged it as the Vice President of OPUS NORTHWEST, L.L.C.,
a Delaware limited liability company, to be the free and voluntary act of such
party for the uses and purposes mentioned in the instrument.
Dated:__________, 2000.
___________________________________________
(Signature of Notary Public)
___________________________________________
(Printed Name of Notary Public)
My Appointment expires_____________________
STATE OF_____________ )
) ss.
COUNTY OF____________ )
I certify that I know or have satisfactory evidence that______________
_____________________ is the person who appeared before me, and said person
acknowledged that he/she signed this instrument, on oath stated that he/she was
authorized to execute the instrument and acknowledge it as the
_____________________ of PRIMEX AEROSPACE COMPANY, a __________________
corporation, to be the free and voluntary act of such party for the uses and
purposes mentioned in the instrument.
Dated:___________, 2000.
___________________________________________
(Signature of Notary Public)
___________________________________________
(Printed Name of Notary Public)
My Appointment expires_____________________
25
FIRST AMENDMENT TO NET LEASE AGREEMENT
This FIRST AMENDMENT TO NET LEASE AGREEMENT (the "Amendment") dated as of
February 12, 1999, is made by and between OPUS NORTHWEST, L.L.C., a Delaware
limited liability company ("Landlord") and PRIMEX AEROSPACE COMPANY, a
Washington corporation ("Tenant"). Landlord and Tenant are parties to that
certain Net Lease Agreement dated July 27, 1998 (the "Original Lease") for
certain space in Willows Commerce Park Phase II located on certain real property
in the City of Xxxxxxx, County of King, State of Washington, described on
Exhibit A, attached hereto. Unless specifically defined in this Amendment,
capitalized terms herein have the same meaning as set forth in the Original
Lease .
1. The Landlord and Tenant hereby delete and replace entirely the text in
Exhibit B of the Original Lease with the text of Exhibit A to this First
Amendment.
2. Except as amended herein, the Original Lease is affirmed by the parties
and continues in full force and effect in accordance with its terms.
LANDLORD:
OPUS NORTHWEST,L.L.C.,
a Delaware limited liability company
By:/s/ Xxxx Xxxxxxx
--------------------------------
Xxxx Xxxxxxx, Vice President
TENANT:
PRIMEX AEROSPACE COMPANY
a Washington corporation
By:
Name:
Title:
26
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
I certify that I know or have satisfactory evidence that Xxxx Xxxxxxx
is the person who appeared before me, and said person acknowledged that he
signed this instrument, on oath stated that he was authorized to execute the
instrument and acknowledged it as the Vice President of OPUS NORTHWEST, L.L.C.,
a Delaware limited liability company, to be the free and voluntary act of such
party for the uses and purposes mentioned in the instrument.
Dated:___________, 1999.
/s/ Bets Xxxxx
----------------------
(Signature of Notary Public)
Bets Xxxxx
----------
(Printed Name of Notary Public)
My Appointment expires
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
I certify that I know or have satisfactory evidence that Xxxxxxx X.
Xxxxx is the person who appeared before me, and said person acknowledged that he
signed this instrument, on oath stated that he was authorized to execute the
instrument and acknowledged it as the President of PRIMEX AEROSPACE COMPANY, a
Washington corporation, to be the free and voluntary act of such party for the
uses and purposes mentioned in the instrument.
Dated: February 24, 1999.
/s/ Xxxxx X. Xxxxxxx
----------------------------
(Signature of Notary Public)
Xxxxx X. Xxxxxxx
----------------
(Printed Name of Notary Public)
My Appointment expires January 6, 2000
27
EXHIBIT A
TO
FIRST AMENDMENT TO NET LEASE AGREEMENT
Legal Description
-----------------
XXX 0 XX XXXX XX XXXXXXX XXXXXXX XXXX XXXX XX. XXX-00-000 RECORDED NOVEMBER 16,
1998 UNDER RECORDING NO. 9811161574, RECORDS OF KING COUNTY, STATE OF
WASHINGTON.
28
