EXHIBIT 10.3
LEASE
RAZORE LAND COMPANY, LANDLORD
INTERACTIVE BUYERS NETWORK INTERNATIONAL, LTD., TENANT
DATED October 11, 1999
LEASE
TABLE OF CONTENTS
1 BASIC LEASE TERMS
2. PREMISES
3. TERM
3.1 Commerce
3.2 Expire
4. TENANT IMPROVEMENTS; EARLY POSSESSION, DELAYED DELIVERY OF POSSESSION
4.1 Tenant Improvements
4.2 Early Occupancy
4.3 Landlord Delay
4.4 Tenant Delay
5. RENT
5.1 Rent
5.2 Manner of Payment
5.3 Rent Commencement PREPAID RENT AND SECURITY DEPOSIT
6. PREPAID RENT AND SECURITY DEPOSIT
6.1 Deposit
6.2 Use of Deposit to Cure
6.3 Return of Security Deposit
6.4 Treatment as Security Deposit
6.5 Landlord's Obligation Regarding Deposit
7. USE OF PREMISES
7.1 Use
7.2 Prohibited Uses
7.3 No Nuisance
7.4 Telecommunications Providers
8. ADDITIONAL RENT FOR OPERATING EXPENSES
8.1 Tenant Payment
8.2 Tenant's Share
8.3 Definitions
8.4 Determination of Operating Expenses
8.5 Reconciliation
8.6 Upon Lease Termination
8.7 Landlord Rights
9. MAINTENANCE AND REPAIR RESPONSIBILITY
9.1 Maintenance Obligations
9.2 No Obligation For Alteration
9.3 Tenant Waiver
10. COMMON AREAS
10.1 Use of Common Areas
10.2 Definition of Common Areas
11. UTILITIES AND SERVICES
11.1 Furnishing of Utilities and Services
11.2 Additional Services
11.3 After Hours
11.4 Separate Meters
11.5 Failure
12. LIMITS ON LANDLORD'S LIABILITY
12.1 Circumstances Beyond Control
12.2 Unreasonable Period of Failure
12.3 Tenant Caused
12.4 No Abatement of Rent
12.5 No Interference
13. ALTERATIONS AND ADDITIONS BY TENANT; LIENS AND INSOLVENCY
13.1 Alterations and Additions by Tenant
13.2 Liens and Insolvency .
14. INSURANCE; INDEMNITY
14.1 Tenant Waiver
14.2 Indemnity
14.3 Landlord's Responsibility
14.4 Tenant's insurance
14.5 Policies
14.6 Landlord's Insurance
14.7 Proceeds
14.8 Waiver of Subrogation
14.9 Notification of Accidents
15. DESTRUCTION
15.1 Election to Restore
15.2 Rent Abatement
15.3 Repairs to Tenant Installations
15.4 No Compensation
16. CONDEMNATION
16.1 Termination of Lease
16.2 Election of Termination
16.3 Reduction of Rent
16.4 Award
16.5 Landlord Authority
17. ASSIGNMENT AND SUBLETTING
17.1 Landlord Consent Required
17.2 Deemed Assignment
17.3 Recapture
17.4 Additional Requirements
17.5 Assignment with Bankruptcy
17.6 Sale
17.7 Binding
18. DEFAULT
18.1 Definition of Default
18.2 Tenant Notification
18.3 Landlord Default
18.4 Rental Concession
19. REMEDIES IN DEFAULT
19.1 Landlord Remedies
19.2 Tenant Payment of Costs
19.3 Termination
19.4 No Termination
19.5 Landlord Election to Make Tenant Advances
20. ACCESS
21. SURRENDER OF PREMISES; HOLD-OVER TENANCY
21.1 Surrender of Premises
21.2 Hold-Over Tenancy
22. COMPLIANCE WITH LAW
23. RULES AND REGULATIONS
24. PARKING
24. ESTOPPEL CERTIFICATES
26. SUBORDINATION
27. REMOVAL OF PROPERTY
28. PERSONAL PROPERTY TAXES
29. NOTICES
30. CONDITION OF PREMISES
31. HAZARDOUS SUBSTANCES
31.1 Tenant Obligations
31.2 Tenant Indemnity
31.3 Landlord Inspection
31.4 Survival
32. SIGNS
33. GENERAL PROVISIONS
33.1 Attorneys' Fees
33.2 Governing Law; Venue
33.3 Cumulative Remedies
33.4 Exhibits; Addenda
33.5 Interpretation
33.6 Joint Obligation
33.7 Keys
33.8 Late Charges; Interest
33.9 Light, Air, and View
33.10 Measurements
33.11 Name
33.12 Prior Agreements, Amendments
33.13 Recordation
33.14 Liability
33.15 Severability
33.16 Time
33.17 Waiver
33.18 No Waste
33.19 Force Majeure
33.20 Quiet Enjoyment
33.21 Building Planning
34. AUTHORITY OF TENANT
34.1 Tenant as Corporation
34.2 Tenant as Partnership or LLC
35. FINANCIAL STATEMENTS
36. COMMISSIONS
Exhibits to this Lease:
Exhibit A-1 Premises
Exhibit A-2 Legal Description of Property
LEASE
LEASE, dated SEPTEMBER 28, 1999, between RAZORE LAND COMPANY, a Washington
corporation ("Landlord"), and INTERACTIVE BUYERS NETWORK INTERNATIONAL, LTD., a
Nevada Corporation
("Tenant").
1. Basic Lease Terms,This Section sets forth certain basic terms of this
--------------------
Lease for reference purposes. This Section is to be read in conjunction with the
other provisions of this Lease; provided,
however. to the extent of any inconsistency between this Section and the other
provisions of this Lease, this Section shall control.
Leased Premises (See #2)
Operating Expenses (See #8)
Business Park QUADRANT PARKSIDE CENTER Tenant's Share 6.61 % of property
Initial Additonal Rent
Building Name Building Three 13) $2,400.83/Month
Address 18939 - 120t" Avenue NE Parking (See #24)
Suite 111 2.8/1000 unreserved parking spaces
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Brokers (see #36)
Rentable SQ. Ft. approximately 6,700 rsf For Tenant
Windermere Real Estate, Inc.
Final square footage measurements shall be made
For Landlord Colliers International
In accordance with BOMA standards.
Rent; Prepaid Sent; Security Deposit Addresses for Notices (See #29)
(See #5 and #6)
Landlord;
Elase Monthly Rent Razore, Land Company
Month 1 - 12 $8,375.00/Month
Months 13 - 24 $8,654.17/Month ▇/▇ ▇▇▇▇▇▇▇▇/▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ - ▇▇ $8,933.33/Month ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Prepaid Rent $8,375.00, First Month Rent Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Security Deposit $53,599.98 Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇
(See 1A.1)
Tenant:
Term (See 1A.2 and #3) Interactive Buyers Network International, LTD
▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇. Suite 111
Commencement Date November 1, 1999 ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Rent Commencement Date November 1, 1999 Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Expiraflon Date October 31, 2002 Tel:
Length of Term Three (3) years Fax:
Permitted Use
General office use.
EXHIBIT I
1A. Special Lease Terms. The following additional lease terms shall
apply. To the extent of any inconsistency between this Section 1A and the other
provisions of the Lease, this Section 1A shall control.
1A.1 Security Deposit. Tenant shall provide Landlord with a security
deposit equal to the last six (6) months rent due upon execution of the Lease
document. The security deposit shall be in the form of a Certificate of Deposit
in the amount of $44,666.65 and cash deposit in the amount of $8,933.33. The
Certificate of Deposit shall in the name of the Tenant and shall be kept in
trust by the Tenants bank. The Tenants bank shall provide an assignment to the
Landlord that will allow and comply with the Security Deposit sections of this
Lease. The Tenant shall submit the Certificate of Deposit assignment and the
cash deposit upon execution of the Lease. The Landlord shall release any claim
to the Certificate of Deposit to the Tenants bank upon expiration of the Lease,
subject to the terms of the Lease as respects the Security Deposit.
1A.3 Commencement Date. The Lease Commencement Date and Rent
Commencement date shall be subject to Section 1, and shall not be dependent upon
completion of scheduled tenant improvements. Furthermore, Tenant shall have the
right to access the premises approximately fourteen (14) days prior to the
scheduled commencement date for the purpose of installation of cabling and other
pre-occupancy and related items, including use of the premises for materials
storage and trade show preparations. This prior access shall not imply
commencement of the Lease and/or Rent as set forth in the Lease Agreement.
1A.3 Condition of Premises. Landlord shall repair all items identified
and agree to by the Landlord's agent as specified during a pre-possession
inspection by the Tenant and Landlords agent.
1A.4 Landlord shall not allow access to the Premises by other parties unless
accompanied by and agent of the Landlord except during the construction process.
This provision shall remain in effect until the demising wall separating the
Tenants area from the rest of the building is completed.
1A.7 Section 7.1 shall be amended to allow Tenant to terminate the lease,
without recourse by Landlord, if a Zoning law, existing or as changed, prohibits
Tenant from conduction its existing business at the Premises.
2. Premises. Landlord agrees to lease to Tenant and Tenant agrees to
lease from Landlord the Premises described on Exhibit A-1 and consisting of
approximately the square feet designated in Section 1. The Premises are a part
of the Building, located on the real property described on Exhibit A-2
("Property").
3. Term
3.1 Commence. The term of this Lease ("Term") shall commence on the
Commencement Date set forth in Section 1, subject to Section 4.
3.2 Expire. The Term shall expire on the Expiration Date set forth in
Section 1, unless sooner terminated or extended as provided in this Lease.
4. Tenant Improvements; Early Possession; Delayed Delivery of Possesion
4.1 Tenant Improvements. Landlord shall provide a new demising wall
separating the balance of the space. Demising wall shall be installed promptly
upon receipt of the building permit, which is deemed to occur after Tenant
occupancy. Landlord shall also deliver the premises in good condition and
repair. Please see Exhibit A-1 for a detailed space plan.
4.2 Early Occupancy. If Landlord permits Tenant to occupy the Premises
prior to the Commencement Date set forth in Section 1, the Commencement Date and
Rent Commencement Date shall be such date of occupancy. Tenant's occupancy prior
to the originally scheduled Commencement Date shall be subject to all the
provisions of this Lease and shall not advance the Expiration Date.
4.3 Intentionally Omitted.
4.4 Tenant Delay. If Tenant causes any delay in Landlord's completion of
the Premises, thereby delaying Tenant's occupancy of the Premises beyond the
Commencement Date set forth in Section 1, then Landlord may at its option
require Tenant to commence payment of Rent on the Rent Commencement Date set
forth in Section 1 notwithstanding such delay in delivery of possession.
5. Rent.
5.1 Rent. Tenant shall pay to Landlord the Base Monthly Rent specified
in Section I and the Additional Rent as set forth in Section 8 and elsewhere in
this Lease (the Base Monthly Rent and the Additional Rent are collectively
referred to as "Rent7). Rent shall be paid in advance, on or before the first
day of each calendar month of the Lease Term.
5.2 Manner of Payment. Rent shall be paid without prior notice, demand,
set off, counterclaim, deduction or defense and, except as otherwise expressly
provided in this Lease, without abatement or suspension. AJI Rent shall be paid
to Landlord at the address for notices set forth in Section 1, in lawful money
of the United States of America, or to such other person or at such other place
as Landlord may from time to time designate in writing.
5.3 Rent Commencement. Payment of Rent shall begin on the Rent
Commencement Date set forth in Section 1, subject to Section 4. Rent for any
period during the Lease term that is for less than one month shall be prorated
for the actual number of days in such period.
6. Prepaid Rent and Security Deposit.
6.1 Deposit. Upon execution of this Lease, Tenant shall pay to Landlord
the Prepaid Rent and Security Deposit set forth in Section 1 (the Prepaid Rent
and the Security Deposit collectively, "Deposit').
6.2 Use of Deposit to Cure. Landlord shall have the right to all or any
part of the Deposit to cure any Default by Tenant under this Lease or to
compensate Landlord for any damage sustained by it resulting from such Default.
In the event of any such application of the Deposit, Tenant shall, on demand,
immediately pay to Landlord the amount necessary to replenish the Deposit to the
amount set forth in Section 1.
6.3 Return of Security Deposit. If Tenant is not in Default at the
expiration or termination of this Lease, Landlord shall return the remaining
Security Deposit to Tenant, less any amounts necessary to return the Premises to
their original condition, reasonable wear and tear excepted.
6.4 Treatment as Security Deposit. In the event this Lease is terminated
before the end of the Term for any reason, any Rent paid for any period after
the date of such termination shall be treated as an addition to the Security
Deposit.
6.5 Landlord's Obligation Regarding Deposit. Landlord's obligations with
respect to the Security Deposit are those of a debtor and not a trustee.
Landlord may maintain the security deposit separate from Landlord's general
funds or may commingle the Security Deposit with other funds of Landlord. No
interest shall accrue for Tenant on the Deposit.
7. Use of Premises.
7.1 Use. Tenant shall use the Premises only for the purpose set forth in
Section 1. The Premises may not be used for any other purpose without Landlord's
written consent. Landlord represents to Tenant that the purpose set forth in
Section 1 is permitted as of the date hereof under the applicable laws,
regulations and codes governing zoning, land use and similar matters affecting
the Building and the Property (collectively, the "Zoning Laws"). Any changes in
the Zoning Laws or any changes in Tenant's use of the Premises that are not
permitted under the Zoning Laws will not be a basis for terminating this Lease,
for abating or offsetting Rent or for otherwise seeking damages, unless said
changes in the Zoning Laws are initiated by the Landlord and prevents the Tenant
from conducting its existing business.
7.2 Prohibited Uses. Tenant shall not do or permit anything to be done
in or about the Premises or bring or keep anything therein which will in any way
increase the cost of or affect any fire or other insurance upon the Building or
any part thereof or any of its contents, or cause cancellation of any insurance
policy covering the Building or any part thereof or any of its contents.
7.3 No Nuisance. Tenant shall not do or permit anything to be done in or
about the Premises that will obstruct or interfere with the rights of other
tenants or occupants of the Building or Business Park or injure them or their
property, or use or allow the Premises to be used for any unlawful purpose or in
any way constituting a nuisance. Tenant shall not, without the prior written
consent of Landlord, use any apparatus, machinery or device in or about the
Premises which will cause any substantial noise or vibration. Tenant shall not
place any boxes, cartons or other rubbish in the corridors or other Common Areas
(defined in Section 10), Building, Property or Business Park. Tenant shall use
due care in the use of the Premises and of the Common Areas (defined in Section
10), Building Property or Business Park, and shall not neglect or misuse water
fixtures, electric lights and heating and air-conditioning apparatus.
7.4 Telecommunications Providers. Tenant acknowledges that any provision
of telecommunications, data transmission and office automation services,
equipment and systems by a third party provider, its agents, affiliates and
successors, that has a right, whether exclusive or not, to provide such services
to the Premises, Building or Business Park (each a "Provider") is entirely
separate and distinct from this Lease and that Landlord has no duty of
performance concerning the provision of services by a Provider. Tenant hereby
agrees to look solely to the Provider for any failure in the provision of
services provided by such Provider.
8. Additional Rent for Operating Expenses.
8.1 Tenant Payment. Tenant shall pay, as Additional Rent, Tenant's
Share, as set forth in Section 1, of all Operating Expenses. Tenant's payment of
Additional Rent shall be made in the same manner as Base Monthly Rent.
8.2 Tenant's Shar . Tenant's Share shall be the percentage of all Operating
Expenses for the Building set forth in Section 1 as determined by Landlord,
based upon the percentage that the approximate rentable area of the Premises
set forth in Section 1 bears to the approximate rentable area of the Building.
8.3 Definitions.
8.3.1 Definition of Operating Expenses. "Operating Expenses" means all
expenses and charges incurred by Landlord in the operation and maintenance of
the Building, Property and Common Areas (as defined in Section 10), as a
first-class facility, including without limitation the following costs by way of
illustration: (i) all real property taxes, assessments and other general or
special charges levied during the Term by any public, governmental or
quasi-governmental authority against the real or personal property included in
the Building or the Property, including without limitation Landlord's personal
property used in the maintenance, repair or operation of the Building or the
Property, or any other tax on the leasing of the Building or on the rents from
the Building (other than any federal, state or local income or franchise tax);
(ii) any and all assessments Landlord must pay for the Building or Property
pursuant to an applicable Declaration of Covenants, Conditions, Restrictions and
Easements for the Business Park identiW in Section 1 ("CC&Rs"), transportation
or any other improvement monitoring or management plan, or any other covenant,
condition or reciprocal easement agreements; (iii) electricity, gas and similar
energy sources, refuse collection, water, sewer and other utilities services for
the Building and the Property; provided, however, to the extent that any such
services are separately metered to Tenant, Tenant shall pay the actual
separately incurred charges; (iv) annual inspection fees, property management
fees paid to independent or affiliated contractors or to Landlord, and legal,
accounting and other professional expenses; (v) janitorial, cleaning, window
washing and refuse removal; (vi) all costs of improvements or alterations to the
Building, Property and Common Areas required by Laws, to save labor, or reduce
Operating Expenses; (vii) all premiums and deductibles for liability, property
damage, casualty, automobile, garage keeper's, rental loss compensation or other
insurance maintained by Landlord for the Building or Property; (viii) the cost
of any capital improvements made to the Property, Building or Common Areas by
Landlord for the replacement of any Building equipment needed to operate the
Building or the Common Areas at the same quality levels as prior to the
replacement; (ix) air conditioning, heating, ventilating, plumbing, electrical
system, elevator maintenance supplies, materials, equipment and tools; (x) the
repair of the air conditioning, heating, ventilating, plumbing, electrical
systems and elevators of the Building; (xi) maintenance costs, including payroll
expenses, rental of personal property used in maintenance and all other upkeep
of parking and Common Areas, including cleaning, snow and ice removal,
landscaping and lighting; (xii) costs and expenses of repairs, resurfacing,
repainting, and similar items, (xiii) costs and expenses associated with
security and monitoring; (xiv) costs incurred in the management of the Building
and Property (including supplies, wages and salaries of employees used in the
management, operation and maintenance thereof and payroll taxes and similar
governmental charges with respect thereto, and Building management office
rental, if any; (xiii) all license and permit fees (xiv) any other expense or
charge whether or not described above that in accordance with generally accepted
accounting and management practices is properly an expense of maintaining,
operating or repairing the Building, Property or Common Areas. Operating
Expenses shall not include depreciation on the Building or equipment therein,
Landlord's executive salaries, real estate brokers' commissions, and costs or
expenses for which Landlord is reimbursed or indemnified, by an insurer,
condemnor, tenant or otherwise. Landlord shall not collect more than 100% of
Operating Expenses and shall not recover any item of cost more than once. If, in
Landlord's reasonable determination, certain Operating Expenses vary in direct
relationship to occupancy of the Building, Tenant's Share of such Operating
Expenses shall be adjusted to reflect that portion of the whole which the
rentable square feet of the Premises bears to the rentable square footage of the
Building, as applicable, which is actually occupied by tenants.
8.3.2 Definition and Treatment of Capital Improvements. As used herein,
Capital Improvement shall mean the replacement of any major component or element
of the Building or Common Areas. The cost of any Capital Improvement included in
Operating Expenses pursuant to this Lease shall be amortized over the useful
life of the Capital Improvement with interest accruing on the unamortized
balance at the prime rate then in effect at the Seattle Head Office of Bank of
America or its successors, or such higher rate as may have been paid by Landlord
on funds borrowed for the purpose of paying for such Capital Improvement.
Subject to Section 12.3, Landlord shall be responsible at its sole cost and
expense for Capital Improvements related to the repair or replacement of the
structural portions of the Building, which structural portions consist of the
foundation, bearing and exterior walls, subflooring, and roof structure and the
cost of such Capital Improvements shall not be included in Operating Expenses.
8.4 Determination of Operating Expenses. Prior to each January 1 of the
Term, Landlordshall furnish Tenant a written statement of the estimated monthly
Tenant's Share of Operating Expenses for the coming calendar year. The estimated
monthly Tenant's Share of Operating Expenses for the period before the first
January 1 after the Commencement Date is set forth in Section 1. Landlord may,
by written notice to Tenant, revise its estimate of Tenant's Share of Operating
Expenses from time to time.
8.5 Reconciliation. Within 90 days after each January 1 during the Term,
or as soon thereafter as practicable, Landlord shall deliver to Tenant a written
statement setting forth the actual Operating Expenses and Tenant's Share thereof
during the preceding calendar year (or portion of such calendar year after the
Commencement Date). To the extent Tenant's Share of such actual Operating
Expenses exceeded the estimated Tenant's Share thereof paid by Tenant, Tenant
shall pay Additional Rent to Landlord within 30 days after receipt of such
statement by Tenant. To the extent Tenant's Share of such actual Operating
Expenses was less than the estimated Tenant's Share thereof paid by Tenant,
Tenant shall receive a credit against its next payable Rent or such amount shall
otherwise be refunded to Tenant as Landlord determines in its sole discretion.
8.6 Upon Lease Termination. If this Lease shall expire or otherwise
terminate other than on a December 31, Landlord may in its discretion make a
special determination of Tenant's Share of actual Operating Expenses for the
partial calendar year ending on the date of such expiration or other
termination, or may defer such determination until its usual reconciliation of
Operating Expenses for the Building for the entire calendar year. The excess
actual Tenant's Share for such partial calendar year shall be paid to Landlord,
or the excess estimated Tenant's Share already paid by Tenant, as the case may
be, shall be paid by Tenant to Landlord or Landlord to Tenant, as the case may
be, within 30 days of such determination.
8.7 Landlord Rights. Landlord shall have the same rights with respect to
Tenant's nonpayment of Tenant's Share of Operating Expenses as required under
this Lease as it has with respect to any other nonpayment of Rent under this
Lease.
9. Maintenance and Repair Responsibility.
9.1 Maintenance Obligations. Subject to Sections 7.3, 12.3 and 15,
Landlord shall maintain and keep in good condition and repair throughout the
Term the entire Premises , the Building, and the Common Areas in a manner and at
a level of quality that is consistent with comparable buildings in the area (the
"Maintenance Obligations"). Except as otherwise expressly provided in this
Lease, all cost and expenses incurred by Landlord in performing the Maintenance
Obligations shall be considered Operating Expenses.
9.2 No Obligation For Alteration. Alteration. Except as specifically
provided elsewhere in this Lease, Landlord shall have no obligation whatsoever
to alter, remodel, improve, repair, decorate, or paint the Premises or any part
thereof. Tenant affirms that Landlord has made no representations to Tenant
about the condition of the Premises or the Building, except as specifically
herein set forth.
9.3 Tenant Waiver. Tenant waives the right to make repairs at Landlord's
expense under any law, statute, or ordinance now or hereafter in effect.
10. Common Areas.
10.1 Use of Common Areas. Provided Tenant is not in Default under the
Lease and subject to the other terms and conditions of this Lease, Tenant shall
have the right to use the Common Areas on a non-exclusive basis with Landlord,
other tenants in the Building and the Business Park and their respective
officers, employees, guests, invitees and agents. Landlord shall have the right
to establish and enforce reasonable rules and regulations applicable to all
tenants concerning the maintenance, management, use, and operation of the Common
Areas; and to make changes to the Common Areas, including without limitation
changes in the location of lobbies, driveways, entrances, exits, vehicular
parking spaces, parking areas, pedestrian and bicycle trail areas, or the
direction of the flow of traffic.
10.2 Definition of Common Areas. In this Lease, "Common Areas," means
all parts of the Building and related land areas and facilities outside the
Premises and the premises leased or available for lease to other tenants, but
constituting a part of Business Park. Common Areas include, without limitation:
10.2.1 the Building's common entrances, lobbies, restrooms, elevators,
stairway and accessways, loading docks, ramps, drives and platforms and any
passageways and serviceways thereto, and mechanical and electrical systems for
the Building, including without limitation, plumbing, sewage, electrical
systems, pipes conduits, and wires, and appurtenant equipment of the Building,
all to the extent serving the Premises;
10.2.2 the open areas, landscaped areas, sidewalks, pedestrian walkways and
patios, roadways, pedestrian and bicycle trails, driveways, parking areas,
utility systems and facilities, service areas, refuse areas and all other areas
in the Business Park and available for use in common with all tenants, guests
and invitees of the Business Park, located outside the Premises and the premises
leased or available for lease to other tenants in the Business Park.
11. Utilities and Services.
11.1 Furnishing of Utilities and Services. Provided that Tenant is not
in Default under this Lease, Landlord shall cause to be ftimished to the
Premises the following utilities and services, during generally recognized
business hours: (1) electricity for normal lighting and office machines, (ii)
heat and air conditioning required for the comfortable use and occupation of the
Premises; and (iii) janitorial services at the same level and frequency of
service as is standard for other comparable buildings in the area, unless a
schedule for janitorial services is attached hereto, in which case Landlord
shall provide janitorial services in accordance with such schedule
(collectively, the "Service Obligations").
11.2 Additional Services. The provision and use of such utilities and
services shall be in accordance with any applicable rules and regulations under
this Lease. If Tenant requires or utilizes more water or electrical power than
is considered reasonable or normal by Landlord, Landlord may at its option
require Tenant to pay, as Additional Rent, the cost, as fairly determined by
Landlord, incurred in such extraordinary usage. In addition, Landlord may
install separate meters in accordance with Section 11.4.
11.3 After Hours. At Tenant's request, Landlord shall furnish, at
Tenant's expense, heat and air conditioning outside of generally recognized
business hours, at rates to be established from time to time by Landlord, and to
be paid by Tenant as billed by Landlord.
11.4 Separate Meters. To the extent that the Premises are separately
metered or submetered for Tenant's use of any utilities or services, Tenant
shall pay for such use in the same manner as Rent, or shall pay the cost thereof
directly to the service provider, and in either event such charges shall
constitute Additional Rent hereunder.
11.5 Failure. In the event of any failure or interruption of such
utilities and services, Landlord shall diligently attempt to resume service
promptly. Tenant shall not be entitled to any abatement or reduction of Rent by
reason of any failure or interruption of utilities or services, no eviction of
Tenant shall result from any such failure or interruption, and Tenant shall not
be relieved from the performance of any obligation in this Lease because of such
failure or interruption.
12. Limits on Landlord's Liability. Landlord's liability in respect of
its Maintenance Obligations and Service Obligation is subject to the
following limitations:
12.1 Circumstances Beyond Control. Landlord shall not be liable for any
failure of Maintenance Obligations or Service Obligations when such failure is
caused by (i) strikes, lockouts or other labor disturbance or labor dispute of
any character, (ii) governmental regulation, moratorium or other governmental
action, (iii) inability despite the exercise of reasonable diligence to obtain
electricity, water or fuel from the providers thereof, (iv) acts of God or (v)
any other cause beyond Landlord's reasonable control.
12.2 Unreasonable Period of Failure. Subject to Section 12.1,
Landlord shall not be liable for any failure of Maintenance Obligations or
Service Obligations, unless such failure shall persist for an unreasonable time
after written notice of the need of such repairs or maintenance or of the
interruption of services is given to Landlord by Tenant.
12.3 Tenant Caused. If maintenance and repairs to the Premises, Building
or Common Areas are caused in part or in whole by the act, neglect, fault, or
omission of any duty by Tenant, its agents, servants, employees, or invitees,
Tenant shall pay to Landlord the costs of such maintenance and repairs.
12.4 No Abatement of Rent. Except as specifically provided in Sections
15 and 16, there shall be no abatement of Rent in any circumstance under this
Lease.
12.5 No Interference. Landlord shall not be liable for any injury to or
interference with Tenant's business arising from the making of any repairs,
alterations, or improvements in or to any portion of the Building, the Premises,
the Property, or the Common Areas, or to fixtures, appurtenances, and equipment
therein, or the failure of Maintenance Obligations or Service Obligations.
Without limiting the generality of this Section 12, in no event shall Landlord
have any liability for consequential damages resulting from any act or omission
of Landlord in respect of its Maintenance Obligations or Service Obligations,
even if Landlord has been advised of the possibility of such consequential
damages.
13. Alterations and Additions by Tenanto Liens and Insolvengy.
13.1 Alterations and Additions by Tenant. With the prior written consent
of Landlord, Tenant may make at its expense additional improvements or
alterations to the Premises. Any repairs or new construction by Tenant shall be
done in conformity with plans and specifications approved by Landlord, by
contractors approved by Landlord, (provided, that Landlord may require that such
work be performed by Landlord's employees or contractor(s) employed by Landlord)
and subject to Landlord's reasonable rules and regulations regarding such
construction. All work performed shall be done lien-free in a workmanlike manner
and shall become the property of Landlord. Landlord may require that Tenant
provide to Landlord, at Tenants expense, a lien and completion bond in an amount
equal to 150% of the estimated cost of any improvements, additions, or
alterations in the Premises. Landlord shall not unreasonably withhold its
consent to Tenant's proposed alterations or improvements if the conditions of
this Section 13 are satisfied. Landlord may require Tenant to remove any
improvements or alterations at the expiration or termination of the Term, such
removal to occur at Tenant's expense; and Tenant shall repair all damage to the
Premises or Building occurring as a result of such removal. In the event Tenant
fails to remove any improvements or alterations as required by Landlord or
repair any damage occurring during such removal, Landlord shall be entitled to
remove any improvements or alterations or make such repairs, at Tenant's
expense, and shall further be entitled to draw upon the Deposit.
13.2 Liens and Insolvency. Tenant shall keep the Premises, Building and
Property free from any liens arising out of any work performed, materials
ordered or obligations incurred by Tenant. Landlord shall have the right at all
reasonable times to post on the Premises any notices which it deems necessary
for its protection from such liens. If such liens are filed unless such liens
are removed or bonded around to Landlord's satisfaction within fourteen (14)
days of Landlord's notice to Tenant, Landlord may, without waiving its rights
and remedies based on such breach by Tenant and without releasing Tenant from
any of its obligations hereunder, cause such liens to be released by any means
it shall deem proper, including payment in satisfaction of the claim giving rise
to such lien. Tenant shall pay to Landlord on demand, any reasonable sum paid by
Landlord to remove such liens, together with interest at the rate specified in
Section 33.8.
14. Insurance Indemnity.
14.1 Tenant Waiver. Landlord shall not be liable to Tenant, and Tenant
hereby waives all claims against Landlord, for injury or damage to any person or
property in or about the Premises, Building, Property or Common Areas by or from
any cause whatsoever, including without limitation any acts or omissions of any
other tenants, licensees or invitees; of the Building.
14.2 Indemnity. Tenant shall indemnify and defend Landlord and hold
Landlord harmless, from and against any *and all loss, cost, damage, liability
and expense (including reasonable aftomeys'fees) whatsoever that may arise out
of or in connection with Tenant's occupation, use or improvement of the
Premises, or that of its employees, agents or contractors, or Tenant's breach of
its obligations under this Lease. To the extent necessary to fully indemnify
Landlord from claims made by Tenant or its employees, this indemnity constitutes
a waiver of Tenant's immunity under the Washington Industrial Insurance Act, RCW
Title 51. This indemnity shall survive the expiration or termination of the
Term.
14.3 Landlord's Responsibility. The exculpation, release and indemnity
provisions of Sections 14.1 and 14.2 shall not apply to the extent the subject
claims thereunder were caused by Landlord's gross negligence or willful
misconduct. However, in no event shall Landlord be liable to Tenant for
consequential damages.
14.4 Tenant's Insurance. Tenant shall procure and maintain throughout the
Term at Tenant's expense, the following insurance:
14.4.1 Comprehensive general public liability insurance, insuring Tenant
against liability arising out of the Lease and the use, occupancy, or
maintenance of the Premises and all areas appurtenant thereto. Such insurance
shall be in the amount of not less than $2,000,000 combined single limit for
injury to or death of one or more persons in an occurrence, and for damage to
tangible property (including loss of use) in an occurrence. Such policy shall
insure the operations of independent contractors and contractual liability
(covering the indemnity in Section 14.2) and shall: (i) name Landlord as an
additional insured, and (ii) provide that it is primary and noncontributing with
any insurance in force or on behalf of Landlord.
14.4.2 Standard form property insurance insuring against the perils of fire,
extended coverage, vandalism, malicious mischief, special extended coverage
("All Risk") and sprinkler leakage. This insurance policy shall be upon all
personal property for which Tenant is legally liable or that was installed at
Tenant's expense, and that is located in the Building or Premises, including
without limitation all Tenant's furnishings, fixtures, furniture, fittings, and
equipment and all improvements to the Premises installed by Tenant, in an amount
not less than 90% of the full replacement cost thereof. In the event of a
dispute as to the amount of full replacement cost, the decision of Landlord or
any mortgagees of Landlord shall be conclusive. Landlord recommends such policy
shall also include business interruption coverage, covering direct and indirect
loss of Tenant's earnings attributable to Tenant's inability to use fully or
obtain access to the Premises or Building, in an amount as will properly
reimburse Tenant. Such policy shall name Landlord and any mortgagees of Landlord
as insured parties, as their respective interests may appear.
14.4.3 ▇▇▇▇▇▇▇'▇ Compensation and Employer's Liability Insurance (as
required by state law).
14.4.4 Any other form or forms of insurance as Tenant or Landlord or any
mortgagees of Landlord may reasonably require from time to time in form, in
amounts and for insurance risks against which a prudent tenant would protect
itself.
14.5 Policies All policies of insurance to be obtained by Tenant
hereunder shall be in a form approved under the Washington Insurance Laws, which
shall be acceptable to Landlord and shall be issued by insurance companies
holding a General Policyholder Rating of "A7 and a Financial Rating of "X" or
better in the most current issue of Best's Insurance Guide. Tenant shall provide
Landlord with certificates of such insurance. No such policy shall be cancelable
or reducible in coverage except after 30 days' prior written notice to Landlord.
Tenant shall, within ten days prior to the expiration of such policies, furnish
Landlord with renewals or "binders" thereof, or Landlord may order such
insurance and charge the cost thereof to Tenant as Additional Rent.
14.6 Landlord's Insurance. Landlord shall maintain liability and
casualty insurance for the Building and Property adequate in Landlord's judgment
to cover (with deductibles deemed appropriate by Landlord) the risks customarily
insured against by owners of properties similar to the Building.
14.7 Proceeds. The proceeds of any insurance policies maintained by or
for the benefit of Landlord shall belong to and be paid over to Landlord. Any
interest or right of Tenant in any such proceeds shall be subject to Landlord's
interest and right in such proceeds.
14.8 Waiver of Subrogation. Anything in this Lease to the contrary
notwithstanding, Tenant and Landlord each waives its entire right of recovery,
claims, actions, or causes of action against the other for loss or damage to the
Premises, Building, or Property or any personal property of such party therein
that is caused by or incident to the perils covered by normal extended coverage
clauses of standard fire insurance policies carried by the waiving party and in
force at the time of damage or loss. Tenant and Landlord each waives any right
of subrogation it may have against the other party to the extent of recovery
under any such insurance, and shall cause each insurance policy obtained by it
to provide that the insurance company waives all right to recovery by way of
subrogation against the other party in connection with any such loss or damage.
If either Landlord or Tenant is unable to obtain its insurer's permission to
waive any claim against the other party, such party shall promptly notify the
other party of such inability.
14.9 Notification of Accidents. Tenant shall promptly notify Landlord of
any casualty or accident occurring in or about the Premises.
15. Destruction.
15.1 Election to Restore. If the Premises or the Building is destroyed
by fire, earthquake, or other casualty to the extent that they are untenantable
in whole or in part, then Landlord shall have the right but not the obligation
to proceed with reasonable diligence to rebuild and restore the Premises or the
Building or such part thereof. Landlord shall within 30 days after such
destruction or injury notify Tenant whether Landlord intends to rebuild. If
Landlord fails to notify Tenant within such period, then this Lease shall
terminate as of the end of such period.
15.2 Rent Abatement. During the period from destruction or damage until
restoration (or termination of this Lease), Rent shall be abated in the same
ratio as that portion of the Premises which Landlord determines is unfit for
occupancy shall bear to the whole Premises. If damage is due to the fault or
neglect of Tenant or its agents, employees, invitees, or licensees, there shall
be no abatement of Rent.
15.3. Repairs to Tenant Installations. Landlord shall not be required to
repair any injury or damage by fire or other cause, or to make any repairs or
replacements of any panels, decoration, office fixtures, paintings, floor
covering, or any other improvements to the Premises installed by Tenant.
Instead, if Landlord repairs or rebuilds the Premises under this Section 15,
Tenant shall repair or rebuild such Tenant-installed improvements and other
items of property
15.4 No Compensation. Tenant shall not be entitled to any compensation
or damages from Landlord for loss of the use of the whole or any part of the
Premises, the property of Tenant, or any inconvenience or annoyance occasioned
by such - damage, repair, reconstruction, or restoration.
16. Condemnation.
16.1 Termination of Lease. If all or part of the Premises are taken
under power of eminent domain, or sold under the threat of the exercise of said
power, this Lease shall terminate as to the part so taken as of the date the
condemning authority takes possession.
16.2 Election of Termination. If more than 25% of the floor area of
Premises is taken by condemnation, Landlord or Tenant may, by written notice to
the other within ten days after notice of such taking, terminate this Lease as
to the remainder of the Premises as of the date the condemning authority takes
possession.
16.3 Reduction of Rent. If Landlord or Tenant does not so terminate,
this Lease shall remain in effect as to such remainder, except that the Rent
shall be reduced in the proportion that the rentable floor area taken bears to
the original rentable total floor area. However, if circumstances make abatement
based on floor area unreasonable, the Rent shall ▇▇▇▇▇ by a reasonable amount to
be determined by Landlord. In the event that neither Landlord nor Tenant elects
to terminate this Lease, Landlord's responsibility to restore the remainder of
the Premises shall be limited to the amount of any condemnation award allocable
to the Premises, as determined by Landlord.
16.4 Award. Any award for the taking of all or part of the Premises
under the power of eminent domain, including payment made under threat of the
exercise of such power, shall be the property of Landlord, whether made as
compensation for diminution in value of the leasehold or for the taking of the
fee or as severance damages. Tenant shall only be entitled to such compensation
as may be separately awarded or recoverable by Tenant in Tenant's own right for
the loss of or damage to improvements to the Premises installed by Tenant, for
Tenant's trade fixtures and removable personal property and for Tenant's
relocation or moving expenses. Landlord shall not be liable to Tenant for the
loss of the use of all or any part of the Premises taken by condemnation.
16.5 Landlord Authority . Landlord shall have the exclusive authority to
grant possession and use to the condemning authority and to negotiate and settle
all issues of just compensation or, in the alternative, to conduct litigation
concerning such issues; provided, however, that Landlord shall not enter into
any settlement of any separate award that may be made to Tenant as described in
Section 16.4 without Tenant's prior approval of such settlement, which approval
shall not be unreasonably withheld.
17. Assignment and Subletting.
17.1 Landlord Consent Required. Tenant shall not assign this Lease, or
sublet the Premises or any part thereof, either by operation of law or
otherwise, or permit any other party to occupy all or any part of the Premises,
without first obtaining the written consent of Landlord. Tenant shall propose
such assignment or sublease by written notice to Landlord, and such notice shall
specify an effective date which shall be the first day of a calendar month and
shall be not less than 60 days after the date of such notice. This Lease shall
not be assignable by operation of law. Tenant shall further provide to Landlord
other information and creditworthiness materials concerning any proposed
assignee or sublessee as is requested by Landlord. Landlord's consent to a
proposed assignment or sublease may be withheld or granted in Landlord's
absolute discretion, but shall not be unreasonably withheld if no apparent risk
to Landlord exists.
17.2 Intentionally omitted.
17.3 Recapture. In the alternative to consenting to a proposed
assignment or sublease, Landlord shall have the right to recapture the Premises,
or applicable portion thereof. Landlord may exercise such right by notice to
Tenant within 20 days after receipt of Tenant's notice. Such recapture shall
terminate this Lease as to the applicable portion of the Premises effective on
the effective date proposed in Tenant's notice.
17.4 Additional Requirements. If Landlord elects not to recapture and
thereafter elects to gives its consent to the proposed assignment or sublease,
(I) Landlord may charge Tenant a reasonable sum to reimburse Landlord for legal
and administrative costs incurred in connection with such consent; (ii) in the
event of a sublease, Landlord and Tenant shall share equally in any rent, less
any associated fees paid, and other proceeds paid to Tenant in excess of the
Rent to be paid to Landlord under this Lease; and (iii) in the event of an
assignment or a sublease, Tenant shall remain liable to Landlord for the
performance of all of Tenant's obligations under this Lease.
17.5 Assignment with Bankrup . If this Lease is assigned pursuant to the
provisions of the Revised Bankruptcy Act, I I U.S.C. Section 101 et seq., any
and all consideration paid or payable in connection with such assignment shall
be Landlord's exclusive property and paid or delivered to Landlord, and shall
not constitute the property of tenant or tenant's estate in bankruptcy. Any
person or entity to whom the Lease is assigned pursuant to the Revised
Bankruptcy Act shall be deemed automatically to have assumed all of Tenant's
obligations under this Lease.
17.6 Sale. In the event of any sale of the Building or Property, or any
assignment of this Lease by Landlord, Landlord shall be relieved of all
liability under this Lease arising out of any act, occurrence, or omission
occurring after sale or assignment; and the purchaser or assignee at such sale
or assignment or any subsequent sale or assignment of Lease, the Property, or
Building, shall be deemed without any further agreement to have assumed all of
the obligations of the Landlord under this Lease accruing after the date of such
sale or assignment.
17.7 Binding. Subject to the provisions of this Section 17, this Lease
shall be binding upon and inure to the benefit of the parties, their heirs,
successors and assigns.
18. Defaul .
18.1 Definition of Default. The occurrence of any one or more of the
following events shall constitute a material default and breach of the Lease by
Tenant ("Default"):
18.1.1 vacation or abandonment of all or any portion of the Premises;
18.1.2 failure by Tenant to make any payment required as and when due, where
such failure shall continue after three days' written notice from Landlord;
18.1.3 failure by Tenant to observe or perform any of the covenants,
conditions, or provisions of this Lease, other than the making of any payment,
where such failure shall continue after 30 days' written notice from Landlord;
or
18.1.4 (i) the making by Tenant of any general assignment or general
arrangement for the benefit of creditors; (ii) the filing by or against Tenant
of a petition in bankruptcy, including reorganization or arrangement, unless, in
the case of a petition filed against Tenant, the same is dismissed within 30
days; (iii) the appointment of a trustee or receiver to take possession of
substantially all of Tenant's assets located at the Premises or of Tenant's
interest in this Lease; (iv) the seizure by any department of any government or
any officer thereof of the business or property of Tenant; and (v) adjudication
that Tenant is bankrupt.
18.1.5 Notwithstanding anything herein to the contrary, if Landlord serves
Tenant with three (3) default notices in any twelve-(1 2) month period, Landlord
shall have the right to terminate this Lease without providing Tenant with any
cure period.
18.2 Tenant Notification. Tenant shall notify Landlord promptly of any
Default by Tenant (or event or occurrence which, with the passage of time, the
giving of notice, or both, would become a Default) that by its nature is not
necessarily known to Landlord.
18.3 Landlord Default. Landlord shall be in default if it fails to
observe or perform any of the covenants, conditions, or provisions of this
Lease, where such failure shall continue after 30 days' written notice from
Tenant; provided, however, that if the nature of Landlord's obligation is such
that more than 30 days are required for performance, Landlord shall not be in
default if Landlord commences performance within 30 days after Tenant's notice
and thereafter completes such performance diligently and within a reasonable
time. Tenant shall copy Landlord's lender with any such notice of default, if
Tenant has been provided with the name and address of any such lender. In no
event shall a default by Landlord under this Lease give rise to any right of
Tenant to terminate this Lease or withhold or offset the payment of Base Monthly
Rent or Additional Rent. The obligations of Tenant to pay Base Monthly Rent and
Additional Rent shall continue unaffected in all events unless suspended or
terminated pursuant to an express provision of this Lease.
18.4 Rental Concession. If Tenant was not obligated to pay Base Monthly
Rent or Additional Rent for any period of time after the Commencement Date
("Rental Concession"), any such Rental Concession shall be canceled if Tenant is
in Default at any time during the Term. In the event of such cancellation,
Tenant shall be obligated to pay Base Monthly Rent and/or Additional Rent, as
the case may be, as though there were no Rental Concession in the Lease, and
Tenant shall promptly on demand refund to Landlord the amount of any Rental
Concession already taken, without regard to whether this Lease is terminated by
Landlord as a result of Tenant's Default.
19. Remedies in Default.
19.1 Landlord Remedies. In the event of any Default by Tenant, Landlord
may, at any time without waiving or limiting any other right or remedy, do any
one or more of the following: (i) re-enter and take possession of the Premises
without terminating this Lease, or (ii) terminate this Lease, and (iii) pursue
any remedy allowed by law or equity.
19.2 Tenant Payment of Costs. Whether Landlord has elected to terminate
this Lease or not, Tenant agrees to pay Landlord the cost of recovering
possession of the Premises, the expenses of reletting, and any other costs or
damages arising out of Tenant's Default, including without limitation the costs
of removing persons and property from the Premises, the costs of preparing or
altering the Premises for reletting, broker's commissions, and attorneys' fees.
19.3 Termination. In the event Landlord elects to terminate this Lease,
Landlord shall be additionally entitled to recover from Tenant: (i) the award by
a court having jurisdiction thereof of the amount by which the unpaid rent and
other charges and adjustments called for herein for the balance of the term
after the time of such award exceeds the amount of such loss for the same period
that Tenant proves could be reasonably avoided and (ii) that portion of any
leasing commission and Tenant Improvements costs paid by Landlord applicable to
the unexpired term of the Lease.
19.4 No Termination. No re-entry or taking possession of the Premises by
Landlord pursuant to this Section 19, or acceptance of Tenant's keys to or
surrender of the Premises shall be construed as an election to terminate this
Lease unless a written notice of such intention is given to Tenant.
Notwithstanding any reentry or termination, the liability of Tenant for the Rent
shall continue for the balance of the Term, and Tenant shall make good to
Landlord any deficiency arising from reletting the Premises at a lesser rent
than the Rent provided for in this Lease. Tenant shall pay such deficiency each
month as the amount thereof is ascertained by Landlord.
19.5 Landlord Election to Make Tenant Advances. If Tenant shall fail to
pay any sum of money owed to any party other than Landlord, for which Tenant is
liable under this Lease, or if Tenant shall fail to perform any other act on its
part to be performed hereunder, and such failure continues for a period of ten
days after notice thereof by Landlord, Landlord may, without waiving or
releasing Tenant from its obligations or waiving or releasing any rights that
Landlord may have, make any such payment or perform any other act to be made or
performed by Tenant. All sums so paid by Landlord and all necessary incidental
costs, together with interest thereon at the rate established in Section 33.8,
from the date of such payment by Landlord, shall be deemed Additional Rent and
shall be paid to Landlord on demand.
20. Access. Tenant shall permit Landlord to enter the Premises at all
reasonable times for the purpose of inspecting, altering, and repairing the
Premises and the Building and ascertaining compliance with the provisions of
this Lease by Tenant. The existence or exercise of such right of access shall
not be construed as imposing any obligation on Landlord to inspect, discover or
correct or repair any condition in the Premises or the Building. Landlord may
also show the Premises to prospective purchasers or tenants at reasonable times,
provided that Landlord shall not materially interfere with Tenant's business
operation.
21. Surrender of Premises; Hold-Over Tenancy
21.1 Surrender of Premises. Upon the expiration or sooner termination of
this Lease, Tenant shall surrender the Premises and all the additions and
alterations thereto, and leave the Premises broom clean and in good order and
condition and repair, excluding ordinary wear and tear.
21.2 Hold-Over Tenancy . If without execution of a new Lease or written
extension Tenant shall hold over after the expiration or termination of the
Term, with Landlord's written consent, Tenant shall be deemed to be occupying
the Premises as a Tenant from month to month, which tenancy may be terminated as
provided by law, unless the parties agree otherwise at the time of Landlord's
consent. If Tenant shall hold over after expiration or termination of the Term
without Landlord's written consent, the Base Monthly Rent payable shall be 200%
of the Base Monthly Rent payable in the last month prior to expiration or
termination of the Term, and Tenant shall continue to pay Additional Rent.
During any such tenancy, Tenant shall continue to be bound by all of the terms,
covenants, and conditions of this Lease, insofar as applicable.
22. Compliance with Law. Tenant shall not use the Premises or permit
anything to be done in or about the Premises which will in any way conflict with
any applicable law, statute, ordinance, or governmental rule or regulation, now
or hereafter in force ("Laws"). Tenant shall at its sole cost and expense
promptly comply with all Laws, including without limitation the Americans with
Disabilities Act, and with the requirements of any board of fire insurance
underwriters or other similar bodies now or hereafter constituted, relating to,
or affecting the use or occupancy of the Premises. The judgment of any court of
competent jurisdiction, or the admission of Tenant in any action, whether
Landlord be a party thereto or not, that Tenant has violated any Laws, shall be
conclusive of the fact as between Landlord and Tenant.
23. Rules and Regulations. Tenant shall faithfully observe and comply
with the rules and regulations that Landlord shall from time to time promulgate
and with the CC&Rs and any other restrictive covenants and obligations created
by private contracts which affect the use and operation of the Premises,
Building Common Areas or Business Park, now or hereafter in force. All such
rules and regulations shall be nondiscriminatory and reasonable and shall be
uniformly and consistently enforced against all tenants in the Building.
Additions and modifications to rules and regulations shall be binding on Tenant
upon delivery of a copy of them to Tenant. Landlord shall not be responsible to
Tenant for the nonperformance of any rules or regulations by any other tenants
or occupants of the Building.
24. Parking. Tenant shall have the right to use, on a first-come, first
served basis, in common with other tenants and occupants of the Building and
Business Park, up to the number of parking stalls specified in Section 1,
located within the Building or the Business Park and which shall be available
for use by all tenants of the Business Park, their guests and invitees, but
which may, at Landlord's election, be designated by Landlord, (which designated
parking facilities Landlord may change at any time and from time to time in its
sole discretion), subject to the rules and regulations and any charges that may
be established or altered for such parking facilities from time to time. Tenant
shall comply with any and all private and governmentally imposed parking
restrictions applicable to the Business Park, including without limitation, the
requirements of all designations placed on parking stalls within the Business
Park, such as car pool, visitor and designation for any tenant of the Business
Park.
25. Estoppel Certificates. Tenant shall execute, within ten business
days following Landlord's request, a certificate in such reasonable form as may
be required by Landlord or a prospective purchaser, mortgagee or trust deed
beneficiary, or Landlord's successor after a sale or foreclosure, certifying:
(i) the Commencement Date of this Lease, (ii) that the Lease is unmodified and
in full force and effect, (or if there have been modifications hereto, that this
Lease is in full force and effect, and stating the date and nature of such
modifications); (iii) that there have been no current defaults under this Lease
by either Landlord or Tenant except as specified in Tenant's statement, (iv) the
dates to which the Base Monthly Rent, Additional Rent and other charges have
been paid, and (v) any other information reasonably requested by the requesting
party. Such certificate may be relied upon by Landlord and/or such other
requesting party. Tenant's failure to deliver such statement within such time
shall be conclusive upon Tenant that this Lease is in full force and effect,
without modification except to the extent represented by Landlord, that there
are no uncured defaults in Landlord's performance under this Lease, and that not
more than one month's Rent has been paid in advance. Tenant's failure to deliver
said statement within ten business days of request, shall constitute Tenant's
Default. Tenant's Default shall be defined as per the terms of this Lease,
including the terms associated with the Security Deposit.
26. Subordination. Tenant agrees that this Lease shall be subordinate to
the lien of any mortgage, deeds of trust, or ground leases now or hereafter
placed against the Property or Building, and to all renewals and modifications,
supplements, consolidations, and extensions thereof. Notwithstanding the
foregoing, Landlord reserves the right, however, to subordinate or cause to be
subordinated any such mortgage, deed of trust or ground lease to this Lease.
Upon a foreclosure or conveyance in lieu of foreclosure under such mortgage or
deed of trust, or a termination of such ground lease, and a demand by Landlord's
successor, Tenant shall attorn to and recognize such successor as Landlord under
this Lease; provided, however, that Landlord shall obtain for the Term of this
Lease what is commonly known as a "nondisturbance" agreement which is intended
to protect Tenant's right to possession under this Lease for so long as Tenant
complies with the terms of this Lease and which shall be in such standard form
and substance as the lender or ground lessor at that time typically provides to
comparable tenants. Landlord shall use reasonable efforts to obtain
modifications to such standard nondisturbance agreements as Tenant may
reasonably request. Tenant shall execute and deliver on request and in the form
requested by Landlord, any instruments reasonably necessary or appropriate to
evidence, effect or confirm such subordination.
27. Removal of Property. On expiration or other termination of this
Lease, Tenant shall remove (i) all personal property of Tenant on the Premises,
including without limitation all Tenant's furnishings, fixtures, furnitute,
-fittings, cabling, wiring and equipment; (ii) all improvements to the Premises
installed by or at the expense of Tenant other than such improvements as have
become the property of Landlord under Section 13; and (iii) at Landlord's
request, all non-standard or specialty improvements made to the Premises by
Landlord or Tenant. Tenant shall repair or reimburse Landlord for the cost of
repairing any damage to the Premises resulting from the installation or removal
of such property of Tenant. All property of Tenant remaining on the Premises
after reentry or termination of this Lease shall conclusively be deemed
abandoned and may be removed by Landlord. The cost of removal of such property
shall be reimbursed by Tenant to Landlord upon demand, including, but not
limited to court costs, reasonable attorneys' fees and storage and disposal
charges relating to such property. Landlord may store such property of Tenant in
any place selected by Landlord, including but not limited to a public warehouse,
at the expense and risk of the owner thereof, with the right to sell such stored
property without notice to Tenant. The proceeds of such sale shall be applied
first to the cost of such sale, second to the payment of the cost of removal and
storage, if any, and third to the payment of any other amounts that may then be
due from Tenant to Landlord under this Lease, and any balance shall be paid to
Tenant.
28. Personal Propert y Taxes. Tenant shall pay prior to delinquency all
personal property taxes payable with respect to all property of Tenant located
on the Premises or the Building and promptly upon request of Landlord shall
provide satisfactory evidence of such payment. "Personal property taxes" under
this Section 28 shall include all property taxes assessed against the property
of Tenant, whether assessed as real or personal property.
29. Notices. All notices under this Lease shall be in writing. Notices
shall be effective (i) when mailed by certified mail, return receipt requested
(ii) when personally delivered, or (iii) when sent by fax, in each case to the
address or fax number of the receiving party set forth in Section 1. Either
party may change its address and fax number for notices by notice to the other
from time to time.
30. Condition of Premises. By taking possession of the Premises, Tenant
accepts the Premises as being in good, sanitary order, condition and repair, and
further accepts all aspects of the Premises, Building, Property and Business
Park in their present condition, AS IS, including latent defects, without any
representations or warranties, express or implied, from Landlord.
31. Hazardous Substances.
31.1 Tenant Obligations. Tenant shall not, without first obtaining
Landlord's prior written approval, generate, release, store, deposit, transport,
or dispose of (collectively "Release") any hazardous substances, sewage,
petroleum products, hazardous materials, toxic substances or any pollutants or
substances, defined as hazardous or toxic in applicable federal, state and local
laws and regulations ("Hazardous Substances") in, on or about the Premises. In
the event, and only in the event, Landlord approves such Release of Hazardous
Substances on the Premises, such Release shall occur safely and in compliance
with all applicable federal, state, and local laws and regulations.
31.2 Tenant Indemnity. Tenant shall indemnify and defend Landlord, and
hold Landlord harmless, from and against any and all claims, liabilities,
losses, damages, cleanup costs, and expenses (including reasonable attorneys'
fees) arising out of or in any way relating to the Release by Tenant or any of
its agents, representatives, employees or invitees, or the presence of any
Hazardous Substances in, on or about the Premises occurring as a result of or in
connection with Tenant's use or occupancy of the Premises at any time after the
Commencement Date.
31.3 Landlord Inspection. Landlord shall have the right from time to
time to enter the Premises, Building and Property and inspect the same for the
presence of Hazardous Substances and compliance with the provisions of this
Section 31 and inspect the Premises, Building and Property. Landlord may cause
tests to be performed for Hazardous Substances on the Premises from time to
time. Tenant shall bear the cost of the first such test in any calendar year and
any other such test that occurs upon a reasonable suspicion by Landlord that
there may be Hazardous Substances in the Premises in violation of Tenant's
obligations under this Lease.
31.4 Survival. The provisions of this Section 31 shall survive the
expiratiori or termination of this Lease with respect to any occurrences during
the Term.
32. Signs. Tenant shall not place upon or install in windows or other
openings or exterior sides of doors or walls of the Premises any symbols,
drapes, or other materials without the written consent of Landlord. Tenant shall
observe and comply with the requirements of all Laws applicable to signage.
33. General Provisions.
33.1 Attorneys' Fees. In the event Landlord reasonably requires the
services of any attorney in connection with any Default or violation by Tenant
of the terms of this Lease or the exercise by Landlord of its remedies for any
Default by Tenant under this lease, or a request by Tenant for Landlord's waiver
of any terms of this Lease or extension of time to perform or pay any obligation
of Tenant under this Lease, Tenant shall promptly on demand reimburse Landlord
for its reasonable attorneys' fees incurred in such instance. In the event of
any litigation, arbitration or other proceeding (including proceedings in
bankruptcy and probate and on appeal) brought to enforce or interpret or other
wise arising under this Lease, the substantially prevailing party therein shall
be entitled to the award of its reasonable attorneys' fees, witness fees, and
court costs incurred therein and in preparation therefor.
33.2 Governing Law; Venue. This Lease shall be governed by and construed
in accordance with the laws of the State of Washington and venue for all
disputes shall be in King County, Washington.
33.3 Cumulative Remedies. No remedy or election under this Lease shall
be deemed exclusive but shall, wherever possible, be cumulative with all other
remedies at law or in equity.
33.4 Exhibits; Addenda. Exhibits and Addenda, if any, affixed to this
Lease are a part of and incorporated into this Lease.
33.5 Interpretation. This Lease has been submitted to the scrutiny of
all parties hereto and their counsel, if desired, and shall be given a fair and
reasonable interpretation in accordance with the words hereof, without
consideration or weight being given to its having been drafted by any party
hereto or its counsel.
33.6 Joint Obligation. If there is more than one Tenant under this
Lease, the obligations hereunder imposed upon Tenants shall be joint and
several.
33.7 Keys. Upon expiration or termination of this Lease, Tenant shall
surrender all keys to the Premises to Landlord at the place then fixed for
payment of Rent and shall inform Landlord of all combination locks, safes, and
vaults, if any, in the Premises.
33.8 Late Charges; Interest. Late payment by Tenant to Landlord of Rent
or other sums due under this Lease will cause Landlord to incur costs not
contemplated by this Lease, the exact amount of which would be difficult and
impractical to ascertain. Such costs include without limitation processing and
accounting charges and late charges which may be imposed on Landlord by the
terms of any mortgage or trust deed covering the Premises. Accordingly, Tenant
shall pay to Landlord as Additional Rent a late charge equal to five percent of
such installment as liquidated damages for such late payment, other than for
time value damages. A $50.00 charge will be paid by Tenant to Landlord for each
returned check. In addition, any Rent or other sums due under this Lease to
Landlord that is not paid when due shall bear interest at the rate per annum of
two percent over the prime rate in effect at Bank of America d/b/a Seattle-First
National Bank, Seattle Head Office, on the day such Rent or other sum was due,
which interest shall constitute Additional Rent under this Lease. The existence
or payment of charges and interest under this Section shall not cure or limit
Landlord's remedies for any Default by Tenant under this Lease.
33.9 Light. Air. and View. Landlord does not guarantee the continued
present status of light, air, or view in, to or from the Premises.
33.10 Measurement . All measurements of the Premises stated in this
Lease, even if approximations, shall govern and control over any actual
measurement of the Premises and reflect the inclusion of a load factor for the
Building. The Rent provided in this Lease and Tenant's Share shall not be
modified or changed by reason of any measurement or re-measurement of the
Premises that may occur after the date of this Lease, and is agreed by Landlord
and Tenant to constitute the negotiated rent for the Premises. The foregoing
shall not be deemed to modify any obligation of Landlord to construct the
Premises in accordance with the Work Letter.
33.11 Name. Tenant shall not use the name of the Building or Business
Park for any purpose other than as an address of the business conducted by the
Tenant in the Premises. The name of the Building or Business Park may at any
time be changed by Landlord.
33.12 Prior Agreements; Amendments This Lease is the full, final
and complete expression of the agreements of the parties with respect to any
matter covered or mentioned in this Lease, and no prior agreements or
understandings, promises or representations, oral or otherwise, pertaining to
any such matters shall be effective for any purpose. No provision of this Lease
may be amended or added to except by an agreement in writing signed by the
parties or their respective successors in interest. This Lease shall not be
effective or binding on any party until fully executed by both parties hereto.
33.13 Recordation. Tenant shall not record this Lease or a short form
memorandum of this Lease without the prior written consent of Landlord.
33.14 Liability. Tenant agrees to look only to the equity of Landlord in
the Building and Property and not to Landlord personally with respect to any
obligations or payments due or which may become due from Landlord hereunder, and
no other property or assets of Landlord or any partners, officers, directors, of
Landlord shall be personally liable in connection with this Lease
33.15 Severability . That any provision of this Lease is invalid, void,
or illegal shall in no way affect, impair, or invalidate any other provision of
this Lease and such other provision shall remain in full force and effect.
33.16 Time. Time is of the essence of this Lease and each of its
provisions.
33.17 Waiver. No provision of this Lease shall be deemed to have been
waived by Landlord unless such waiver is in writing signed by Landlord's duly
authorized representatives. The waiver by either party of any provision of this
Lease shall not be deemed to be a waiver of such provision or any provision, in
any subsequent instance. The acceptance of rent by Landlord shall not be deemed
to be a waiver of any preceeding Default or breach by tenant under this Lease,
whether known or unknown to Landlord, other than the failure of the tenant to
pay particular rent so accepted.
33.18 No Waste. Tenant shall not commit or suffer to be committed any
waste, damage or nuisance upon the Premises.
33.19 Force Majeure. If either party shall be prevented or delayed from
punctuality performing any obligation or satisfying any condition under this
Lease, other than the payment of Rent or other sums due hereunder, by any
strike, lockout, labor dispute, inability to obtain labor or materials or
reasonable substitutes therefor, acts of God, governmental restriction,
regulation or control, enemy or hostile governmental action, civil commotion,
insurrection, sabotage, fire or other casualty, or any condition beyond the
reasonable control of such party, then the time to perform such obligation or
satisfy such condition shall be extended by the delay cause by such event. If
either party shall, as a result of any such event, be unable to exercise any
right or option within any time limit provided therefor in this Lease, such time
limit shall be deemed extended for a period equal to the duration of the delay
caused by such event.
33.20 Quiet Enjoyment. Provided Tenant observes its obligations under
this lease, its quiet enjoyment of the premises throughout the Term shall not be
disturbed.
33.21 Building Planning In the event Landlord requires the premises for
use in conjunction with another suite or for other reasons connected with the
Building planning program, upon notifying the tenant in writing, Landlord shall
have the right to move tenant to other space in the building of which the
Premises form a part, at Landlord's sole cost and expense, and the terms and
conditions of the original Lease shall remain in full force and effect, save and
excepting that a revised Exhibit A shall become part of the Lease and shall
reflect the location of the new space and Section 1 of this lease shall be
amended to include and state all correct data as to the new space. However, if
new space does not meet with Tenant's approval, Tenant shall have the right to
cancel this Lease upon giving Landlord thirty (30) days' notice within ten (10)
days of receipt of Landlord's notification. If Tenant cancels this lease
pursuant to the Section, Tenant shall vacate the Building and Premises within
ninety (90) days of delivery to Landlord of the notice of cancellation.
34. Authority of Tenant
34.1 Tenant as Corporation. If Tenant is a corporation, each individual
executing this Lease on behalf of Tenant represents and warrants the (s)he is
duly authorized by all necessary action of the directors of Tenant to execute
and deliver this Lease on behalf of Tenant, and that this Lease is binding upon
Tenant in accordance with its terms.
34.2 Tenant as Partnership or LLC. If Tenant is a partnership or limited
liability company, each individual executing this Lease on behalf of Tenant
represents and warrants that (s)he is duly authorized in accordance with
Tenant's partnership agreement or limited liability company agreement by all
necessary action of the partners or members or managers of Tenant to execute and
deliver this Lease on behalf of Tenant, and, and that this Lease is binding upon
Tenant in accordance with its terms.
35. Financial Statements. Tenant shall furnish to Landlord from time to
time, within 30 days of request, Tenant's most recent financial statements,
including at a minimum a balance sheet, income statement and statement of
changes in financial condition, or the equivalent, dated as of and for a period
ending not more than one quarter prior to the date of delivery. Such statements
shall be in the form furnished to Tenant's principal lender and/or to Tenant's
shareholders or other owners, but at a rninimum shall be reviewed or compiled by
an independent certified public accountant. Tenant shall accompany such
statements with a certificate of its chief financial officer that the statements
fairly present the financial condition and results of operations of Tenant as of
and for the period ending on the date of such statements. Landlord shall not
request financial statements under this Section more than once each calendar
year.
36. Commissions. Any commissions payable as a result of the execution
of this Lease shall be paid pursuant to a Separate commission contract. Each
party represents and warrants to the other that it has not had dealings with any
real estate broker other than the Broker identified in Section 1, agent or
salesperson with respect to this Lease that would cause the other party to have
any liability for any commissions or other compensation to such broker, agent or
salesperson, and that no such broker, agent or salesperson has asserted any
claim or right to any such commission or other compensation. Such representing
party shall defend and indemnify the other party and hold the other party
harmless from and against any and all loss, cost. liability, damage and expense
(including reasonable attorneys' fees) whatsoever that may arise out of the
breach of such representation and warranty.
EXECUTED the day and year above written.
LANDLORD:
RAZORE LAND COMPANY
By: /s/ ▇▇▇ ▇▇▇▇▇
Title: Manager
TENANT:
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice president and Chief Technology Officer
EXHIBIT A-1
Floor Plan of Property
EXHIBIT A-2
LEGAL DESCRIPTION
A portion of the following described property:
▇▇▇▇ ▇▇ ▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇▇▇▇ as recorded under Volume 131,
Pages 87-91, King County Auditor. Portion of Sections 4, 5, and 9, Township 26
North, Range 5 East, ▇.▇., Recording Certificate No. 8508061034, and all areas
of common use and benefit in Quadrant Business Park -Bothell.