EXHIBIT 10.34
LEASE AGREEMENT
Date: November 4, 2005
THIS LEASE AGREEMENT (the "Lease") is entered into this 4th day of November
2005. Between The International Union of Operating Engineers Local 302
("Landlord"), and NW Biotherapeutics, a Delaware Corporation ("Tenant").
Landlord and Tenant agree as follows:
1. LEASE SUMMARY.
A. LEASE PREMISES. The leased commercial real estate (the "Premises")
consist of an agreed area of 2,325 rentable square feet and are
outlined on the floor plan attached as Exhibit A, located on the land
legally described on attached Exhibit B, and is commonly known as the
IUOE Building. The Premises do not include, and Landlord reserves, the
exterior walls and roof of the Premises, the land beneath the
Premises, the pipes and ducts, conduits, wires, fixtures, and
equipment above the suspended ceiling or structural elements of the
building in which the Premises are located (the "Building"). The
Building, the land upon which it is situated, all other improvements
located on such land, and all common areas appurtenant to the Building
are referred to as the "Property".
B. LEASE COMMENCEMENT DATE. The Lease shall commence on January 1, 2006,
or such earlier or later date as provided in Section 3 (the
"Commencement Date").
C. LEASE TERMINATION DATE. The Lease shall terminate on December 31,
2006, or such earlier or later date as provided in Section 3 (the
"Termination Date").
D. MONTHLY RENT. The monthly rent shall be (check one): [X] $3,100.00, or
[ ] according to the Rent Rider attached hereto. Rent shall be payable
at Landlord's address shown in Section 1(h) below, or such other place
designated in writing by Landlord.
E. PREPAID RENT. Upon execution of this Lease, Tenant shall deliver to
Landlord the sum of $3,100 as prepaid rent, to be applied to the Rent
due for the first month(s) of the Lease.
F. SECURITY DEPOSIT. The amount of the security deposit is $3,100.00
G. PERMITTED USE. The Premises shall be used only for general office use
and for no other purpose without prior written consent of the
Landlord.
H. NOTICE AND PAYMENT OF ADDRESSES:
Landlord: Tenant:
Attention: ▇▇▇▇▇▇▇ Colesgrove Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
International Union of Operating Engineers Local 302 NW Biotherapeutics
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
2. PREMISES. Landlord leases to Tenant, and Tenant leases from landlord the
Premises upon the terms specified in this Lease.
3. TERM.
A. COMMENCEMENT DATE. The Lease shall commence on the date specified in
Section 1(b), or on such earlier or later date as may be specified by
written notice delivered by Landlord to Tenant advising Tenant that
the premises are ready for possession and specifying the Commencement
Date, which shall not be less than 30 days following the date of such
notice. If Tenant occupies the Premises before the Commencement Date
specified in Section 1(b), then the Commencement Date shall be the
date of occupancy. If Landlord acts diligently to make the Premises
available to Tenant, neither Landlord nor any agent or employee of
Landlord shall be liable for any damage or loss due to Landlord's
inability or failure to deliver possession of the Premises to Tenant
as provided in this Lease. The Termination Date shall be modified upon
any change in the Commencement Date so that the length of the Lease
term is not changed. If Landlord does not deliver possession of the
Premises to Tenant within 60 days after the date specified in Section
1(b), Tenant may elect to cancel this Lease by giving written notice
to Landlord within ten (10) days after such time period ends. If
Tenant gives such notice, the Lease shall be cancelled, all prepaid
rent and security deposits shall be refunded to Tenant, and neither
Landlord nor Tenant shall have any further obligations to the other.
The first "Lease Year" shall commence on the Commencement Date and
shall end on the date which is twelve (12) months from the end of the
month in which the Commencement Date occurs. Each successive Lease
Year during the initial term and any extension terms shall be twelve
(12) months, commencing on the first day following the end of the
preceding Lease Year, except that the Lease Year shall end on the
Termination Date.
B. TENANT OBLIGATIONS. To the extent Tenant's tenant improvements are not
complete in time for the Tenant to occupy or take possession of the
Premises on the Commencement Date due to the failure of Tenant to
fulfill any of its obligations under this Lease, the Lease shall
nevertheless commence on the Commencement Date.
Except as specified elsewhere in this Lease, Landlord makes no
representations or warranties to Tenant regarding the Premises,
including the structural condition of the Premises and the condition
of all mechanical, electrical, and other systems on the Premises.
Except for any tenant improvements described on attached Exhibit C to
be completed by Landlord (defined therein as "Landlord's Work"),
Tenant shall be responsible for performing any work necessary to bring
the Premises into condition satisfactory to Tenant. By signing this
Lease, Tenant acknowledges that it has had adequate opportunity to
investigate the Premises, acknowledges responsibility for making any
corrections, alterations and repairs to the Premises (other than the
Landlord's Work), and acknowledges that the time needed to complete
any such items shall not delay the Commencement Date.
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Attached Exhibit C sets forth all Landlord's Work, if any, and all
tenant improvements to be completed by Tenant ("Tenant's Work"), which
is to be performed on the Premises. Responsibilities for design,
payment and performance of all such work shall be as set forth on
attached Exhibit C. If Tenant fails to notify Landlord of any defects
in the Landlord's Work within ten (10) days of delivery of possession
to Tenant, Tenant shall be deemed to have accepted the Premises in
their then condition. If Tenant discovers any major defects in the
Landlord's Work during this 10-day period that would prevent Tenant
from using the premises for its intended purpose, Tenant shall so
notify Landlord in writing and the Commencement Date shall be delayed
until after Landlord has corrected the major defects and Tenant has
had five (5) days to inspect and approve the Premises after Landlord's
correction of such defects. The Commencement Date shall not by delayed
if Tenant's inspection reveals minor defects in the Landlord's Work
that will not prevent Tenant from using the Premises for their
intended purpose. Tenant shall prepare a punch list of all minor
defects and provide the punch list to Landlord. Landlord shall
promptly correct all punch list items.
4. RENT. Tenant shall pay Landlord without demand, deduction or offset, in
lawful money of the United States, the monthly rental stated in Section
1(d) in advance on or before the first day of each month during the Lease
Term beginning on (check one): [X] the Commencement Date, or [ ]
___________________________ (specify, but if no date specified, then on the
Commencement Date), and any other additional payments due to Landlord,
including Operating Costs (collectively the "Rent") when required under
this Lease. Payments for any partial month at the beginning or end of the
Lease term shall be prorated.
If any sums payable by Tenant to Landlord under this Lease are not received
by the fifth (5th) day of each month, Tenant shall pay Landlord in addition
to the amount due, for the cost of collecting and handling such late
payment, an amount equal to the greater of $100 or five percent (5%) of the
delinquent amount. In addition, all delinquent sums payable by Tenant to
Landlord and not paid within five (5) days of the due date shall, at
Landlord's option, bear interest at the rate of twelve percent (12%) per
annum, or the highest rate of interest allowable by law, whichever is less.
Interest on all delinquent amounts shall be calculated from the original
due date to the date of payment.
Landlord's acceptance of less than the full amount of any payment due from
Tenant shall not be deemed an accord and satisfaction or compromise of such
payment unless Landlord specifically consents in writing to payment of such
lesser sum as an accord and satisfaction or compromise of the amount which
Landlord claims.
5. SECURITY DEPOSIT. Upon execution of this Lease, Tenant shall deliver to
Landlord the security deposit specified in Section 1(f) above. Landlord may
commingle the security deposit with its other funds. If Tenant breaches any
covenant or condition of this Lease, including but not limited to the
payment of Rent, Landlord may apply all or any part of the security deposit
to the payment of any sum in default and any damage suffered by Landlord as
a result of Tenant's breach. In such event, Tenant shall, within five (5)
days after written demand therefor by Landlord, deposit with Landlord the
amount so applied. Any payment to Landlord from the security deposit shall
not be construed as a payment of liquidated damages for any default. If
Tenant complies with all of the covenants and conditions of this Lease
throughout Lease term, the security deposit shall be repaid to Tenant
without interest within thirty (30) days after the vacation of the Premises
by Tenant.
6. USES. The Premises shall be used only for the uses(s) specified in Section
1(g) above (the "Permitted Use"), and for no other business or purpose
without the prior written consent of Landlord. No act shall be done on or
around the Premises that is unlawful or that will increase the existing
rate of insurance on the Premises or the Building, or cause the
cancellation of any insurance on the Premises or the Building. Tenant shall
not commit or allow to be committed any waste upon the Premises, or any
public or private nuisance. Tenant shall not do or permit anything to be
done in the Premises or on the Property which will obstruct or interfere
with the rights of other tenants or occupants of the Property, or their
customers, clients and visitors, or to injure or annoy such persons.
7. COMPLIANCE WITH LAWS. Tenant shall not cause or permit the Premises to be
used in any way which violates any law, ordinance, or governmental
regulation or order. Landlord represents to Tenant, to the best of
Landlord's knowledge, that with the exception of any Tenant's Work, as of
the Commencement Date, the Premises comply with all applicable laws, rules,
regulations, or orders, including without limitation, the Americans with
Disabilities Act, if applicable, and Landlord shall be responsible to
promptly cure any non-compliance which existed on the Commencement Date.
Tenant shall be responsible for complying with all laws applicable to the
Premises as a result of Tenant opening the Premises to the public as a
place of public accommodation. If the enactment or enforcement of any law,
ordinance, regulation or code during the Lease term requires any changes to
the Premises during the Lease term, the Tenant shall perform all such
changes at its expense if the changes are required due to the nature of
Tenant's activities at the Premises, or to alterations that Tenant seeks to
make the Premises; otherwise, Landlord shall perform all such changes at
its expense.
8. OPERATING COSTS.
A. DEFINITION. As used herein, "Operating Costs" shall mean all costs of
operating, maintaining and repairing the Premises, the Building, and
the Property, determined in accordance with generally accepted
accounting principles, and including without limitation the following:
all taxes and assessments (including, but not limited to, real and
personal property taxes and assessments, local improvement district
assessments and other special purpose assessments, and taxes on rent
or gross receipts); insurance premiums paid by Landlord and (to the
extent used) deductibles; water, sewer and all other utility charges
(other than utilities separately metered and paid directly by Tenant
or other tenants) janitorial and all other cleaning services, refuse
and trash removal; refurbishing and repainting; carpet replacement;
air conditioning, heating, ventilation and elevator service; pest
control; lighting systems, fire detection and security services;
landscape maintenance; management (fees and/or personnel costs);
parking lot, road, sidewalk and driveway patching, resurfacing and
maintenance; snow and ice removal; amortization (in accordance with
generally accepted accounting principles) of capital improvements as
Landlord may in the future install to comply with governmental
regulations and rules or undertaken in good faith with a reasonable
expectation of reducing operating costs (the useful life of which
shall be a reasonable period of time as determined by Landlord); and
costs of legal services (except those incurred directly relating to a
particular occupant of the Building); accounting services, labor,
supplies, materials and tools. Operating Costs shall not include:
Landlord's income tax or general corporate overhead, depreciation on
the Building or equipment therein; loan payments; real estate broker's
commission, capital improvements to or major repairs of the Building
shell (i.e., the Building structure, exterior walls and roof) not
described in this paragraph; or any costs regarding the operation,
maintenance and repair of the Premises, the Building, or the Property
paid directly by Tenant or other tenants in the Building. If Tenant is
renting a pad separate from any other structures on the Property for
which Landlord separately furnishes the services described in this
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paragraph, then the term "Operating Costs" shall not include those
costs of operating, repairing, and maintaining the enclosed mall which
can be separately allocated to the tenants of the other structures.
Operating Costs which can not be separately allocated to the tenants
of the other structures may include but are not limited to: insurance
premiums; taxes and assessments; management (fees and/or personnel
costs); exterior lighting; parking lot, road, sidewalk and driveway
patching, resurfacing and maintenance; snow and ice removal; and costs
of legal services and accounting services.
B. TYPE OF PAYMENT. Options one and two below address the manner in which
Operating Costs are paid under this Lease. To select the pure triple
net option, check option 1. To select the base year option, check
option 2.
[ ] OPTION ONE: TRIPLE NET. As additional Rent, Tenant shall pay to
Landlord on the first of each month with payment of Tenant's base Rent
one-twelfth of Tenant's Pro Rata Share of Operating Costs.
[X] OPTION TWO: BASE YEAR. The base Rent paid by Tenant under this Lease
includes Tenant's Pro Rata Share of Operating Costs for the calendar
year in which the Commencement Date occurs (the "Base Year"). As
additional Rent, Tenant shall pay to Landlord on the first day of each
month commencing on the first day of the first year after the
Commencement Date, with Tenant's payment of base Rent, one-twelfth of
the amount, if any, by which Tenant's Pro Rata Share of Operating
Costs exceeds Tenant's annualized Pro Rata Share of Operating Costs
for the Base Year.
C. METHOD OF PAYMENT. Tenant shall pay to Landlord Operating Costs as
provided above pursuant to the following procedure:
i) Landlord shall provide to Tenant, at or before the Commencement
Date, a good faith estimate of annual Operating Costs for the calendar
year in which the Commencement Date occurs. Landlord shall also
provide to Tenant, as soon as possible following the first day of each
succeeding calendar year, a good faith estimate of Tenant's annual pro
Rata Share of Operating Costs for the then-current year;
ii) Each estimate of Tenant's annual Pro Rata Share of Operating Costs
determined by Landlord as described above, shall be divided into
twelve (12) equal monthly installments. If Tenant pays Operating Costs
under Option One, Tenant shall pay to Landlord such monthly
installment of Operating Costs with monthly payment of base Rent. If
Tenant pays Operating Costs under Option Two, Tenant shall pay to
Landlord with each monthly payment of base Rent the amount, if any, by
which such monthly installments of Operating Costs exceed one-twelfth
of Tenant's annualized Pro Rata Share of Operating Costs for the Base
Year. In the event the estimated amount of Tenant's Pro Rata Share of
Operating Costs has not yet been determined for any calendar year,
Tenant shall pay the monthly installment in the estimated amount
determined for the preceding calendar year until the estimate for the
current calendar year has been provided to Tenant. At such time as the
estimate for the current calendar year is received, Tenant shall then
pay any shortfall or receive a credit for any surplus for the
preceding months of the current calendar year and shall, thereafter,
make the monthly installment payment in accordance with the current
estimate; and
iii) As soon as reasonably possible following the end of each calendar
year of the Lease term, Landlord shall determine and provide to Tenant
a statement (the "Operating Costs Statement") setting forth the amount
of Operating Costs actually incurred and the amount of Tenant's Pro
Rata Share of Operating Costs actually payable by Tenant with respect
to such calendar year. In the event the amount of Tenant's Pro Rata
Share of Operating Costs exceeds the sum of the monthly installments
actually paid by Tenant for such calendar year, Tenant shall pay to
Landlord the difference within thirty (30) days following receipt of
the Operating Costs Statement. In the event the sum of such
installments exceeds the amount of Tenant's Pro Rata Share of
Operating Costs actually due and owing, the difference shall be
applied as a credit to Tenant's future Pro Rata Share of Operating
Costs payable by Tenant pursuant to this Section.
9. UTILITIES AND SERVICES. Landlord shall provide the Premises the following
services, the costs of which shall be included in the Operating Costs:
water and electricity for the Premises seven (7) days per week, twenty-four
(24) hours per day, and heating, ventilation and air conditioning from 9
a.m. to 5 p.m. Monday through Friday, and 9 a.m. to 12 p.m. on Saturday.
Tenant shall provide their own janitorial service to the Premises. Heating,
ventilation and air conditioning services will also be provided by Landlord
to the Premises during additional hours on reasonable notice to Landlord,
at Tenant's sole costs and expense, at an hourly rate reasonably
established by Landlord from time to time and payable by Tenant, as billed,
as additional Rent.
Tenant shall furnish and pay, at Tenant's sole expense, all other utilities
(including, but not limited to, telephone and cable service if available)
and other services which Tenant requires with respect to the Premises,
except those to be provided by Landlord as described above. Notwithstanding
the foregoing, if Tenant's use of the Premises incurs utility service
charges which are above ordinary usage, Landlord reserves the right to
require Tenant to pay a reasonable additional charge for such usage. For
example, where Tenant installs and uses a number of electronic devices
which is greater than normal, the increased usage may result in higher
electrical charges and increased charges for cooling since overheating of
rooms may result.
10. TAXES. Tenant shall pay all taxes, assessments, liens and license fees
("Taxes") levied, assessed or imposed by any authority having the direct or
indirect power to tax or assess any such liens, by reason of Tenant's use
of the Premises, and all Taxes on Tenant's personal property located on the
Premises. Landlord shall pay all Taxes with respect to the Building and the
Project, including any Taxes resulting from a reassessment of the Building
or the Project due to a change of ownership or otherwise, which shall be
included in Operating Costs.
11. COMMONS AREAS.
A. DEFINITION. The term "Common Areas" means all areas and facilities
that are provided and designated from time to time by Landlord for the
general non-exclusive use and convenience of Tenant with other tenants
and which are not leased or held for the exclusive use of a particular
tenant. Common Areas may, but do not necessarily include, hallways,
entryways, stairs, elevators, driveways, walkways, terraces, docks,
loading areas, restrooms, trash facilities, parking areas and garages,
roadways, pedestrian sidewalks, landscaped areas, security areas and
lobby or mall areas. Tenant shall comply with reasonable rules and
regulations concerning the use of the Common Areas adopted by Landlord
from time to time. Without advance notice to Tenant and without any
liability to Tenant, Landlord may change the size, use, or nature of
any Common Areas, erect improvements on the Common Areas or convert
any portion of the
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Common Areas to the exclusive use of Landlord or selected tenants, so
long as Tenant is not thereby deprived of the substantial benefit of
the Premises. Landlord reserves the use of exterior walls and the
roof, and the right to install, maintain, use, repair and replace
pipes, ducts, conduits, and wires leading through the Premises in
areas which will not materially interfere with Tenant's use thereof.
B. USE OF THE COMMON AREAS. Tenant shall have the non-exclusive right in
common with such other tenants to whom Landlord has granted or may
grant such rights to use the Common Areas. Tenant shall abide by rules
and regulations adopted by Landlord from time to time and shall use
its best efforts to cause its employees, contractors, and invitees to
comply with those rules and regulations, and not interfere with the
use of Common Areas by others.
C. MAINTENANCE OF COMMON AREAS. Landlord shall maintain the Common Areas
in good order, condition and repair. This maintenance cost shall be an
Operating Costs chargeable to Tenant pursuant to Section 8.
12. ALTERATIONS. Tenant may make alterations, additions, or improvements to the
Premises, including any Tenant's Work identified on attached Exhibit C
("Alterations"), with the prior written consent of Landlord. The term
"Alterations" shall not include the installation of shelves, movable
partitions, Tenant's equipment, and trade fixtures which may be performed
without damaging existing improvements or the structural integrity of the
Premises, and Landlord's consent shall not be required for Tenant's
installation of those items. Tenant shall complete all Alterations at
Tenant's expense in compliance with all applicable laws in accordance with
plans and specifications approved by Landlord, using contractors approved
by Landlord, and in a manner so as to not unreasonably interfere with other
tenants. Landlord shall be deemed the owner of all Alterations except for
those which Landlord requires to be removed at the end of the Lease term.
Tenant shall remove all Alterations at the end of the Lease term unless
Landlord conditioned its consent upon Tenant leaving a specified Alteration
at the Premises, in which case Tenant shall not remove such Alteration.
Tenant shall immediately repair any damage to the Premises caused by the
removal of the Alterations.
13. REPAIRS AND MAINTENANCE. Tenant shall, at its sole expense, maintain the
Premises in good condition and promptly make all repairs and replacements,
whether structural or non-structural necessary to keep the Premises safe
and in good condition, including all utilities and other systems serving
the Premises. Landlord shall maintain and repair the Building structure,
foundation, exterior walls, and roof, and the Common Areas, the cost of
which shall be included as an Operating Cost. Tenant shall not damage any
demising wall or disturb the structural integrity of the Premises and shall
promptly repair any damage or injury done to any such demising walls or
structural elements caused by Tenant or its employees, agents, contractors
or invitees. If Tenant fails to maintain or repair the Premises, Landlord
may enter the Premises and perform such repair or maintenance on behalf of
Tenant. In such case, Tenant shall be obligated to pay to Landlord
immediately upon receipt of demand for payment, as additional Rent, all
costs incurred by Landlord. Notwithstanding anything in this Section to the
contrary, Tenant shall not be responsible for any repairs to the Premises
made necessary by the acts of Landlord or its agents, employees,
contractors or invitees therein.
Upon expiration of the Lease term, whether by lapse of time or otherwise,
Tenant shall promptly and peacefully surrender the Premises, together with
all keys, to Landlord in as good condition as when received by Tenant from
Landlord or as thereafter improved, reasonable wear and tear and insured
and casualty excepted.
14. ACCESS AND RIGHT OF ENTRY. After reasonable notice from Landlord (except in
cases of emergency, where no notice is required), Tenant shall permit
Landlord and its agents, employees and contractors to enter the Premises at
all reasonable times to make repairs, alterations, improvements or
inspections. This Section shall not impose any repair or other obligation
upon Landlord not expressly stated elsewhere in this Lease. After
reasonable notice to Tenant, Landlord shall have the right to enter the
Premises for the purpose of showing the Premises to prospective purchasers
or lenders at any time, and to prospective tenants within 180 days prior to
the expiration or sooner termination of the Lease term.
15. DESTRUCTION OR CONDEMNATION.
A. DAMAGE AND REPAIR. If the Premises or the portion of the Property
necessary for Tenant's occupancy are partially damaged but not
rendered untenantable, by fire or other insured casualty, then
Landlord shall diligently restore the Premises and the portion of the
Property necessary for Tenant's occupancy and this Lease shall not
terminate; provided, however, Tenant may terminate the Lease if
Landlord is unable to restore the Premises within six (6) months of
the casualty event. The Premises or the portion of the Property
necessary for Tenant's occupancy shall not be deemed untenantable if
less than twenty-five percent (25%) of each of those areas are
damaged. Notwithstanding the foregoing, Landlord shall have no
obligation to restore the Premises or the portion of the Property
necessary for Tenant's occupancy if insurance proceeds are not
available to pay the entire costs of such restoration. If insurance
proceeds are available to Landlord but are not sufficient to pay the
entire costs of restoration, then Landlord may elect to terminate this
Lease and keep the insurance proceeds, by notifying Tenant within
sixty (60) days of the date of such casualty.
If the Premises, the portion of the Property necessary for Tenant's
occupancy, or 50% or more of the rentable area of the Property are
entirely destroyed, or partially damaged and rendered untenantable, by
fire or other casualty, Landlord may, at its option: (a) terminate
this Lease as provided herein, or (b) restore the Premises and the
portion of the Property necessary for Tenant's occupancy to their
previous condition; provided, however, if such casualty event occurs
during the last six (6) months of the Lease term (after considering
any option to extend the term timely exercised by Tenant) then either
Tenant or Landlord may elect to terminate the Lease. If, within sixty
(60) days after receipt by Landlord from Tenant of written notice that
Tenant deems the Premises or the portion of the Property necessary for
Tenant's occupancy untenantable, Landlord fails to notify Tenant of
its election to restore those areas, or if Landlord is unable to
restore those areas within six (6) months of the date of the casualty
event, then Tenant may elect to terminate the Lease.
If Landlord restores the Premises or the Property under this Section
15(a), Landlord shall proceed with reasonable diligence to complete
the work, and the base Rent shall be abated in the same proportion as
the untenantable portion of the Premises bears to the whole Premises,
provided that there shall be a rent abatement only if the damage or
destruction of the Premises or the Property did not result from, or
was not contributed to directly or indirectly by the act, fault or
neglect of Tenant, or Tenant's officers, contractors, licensees,
agents, servants, employees, guests, invitees or visitors. Provided,
Landlord complies with its obligations under this Section, no damages,
compensation or claim shall be payable by Landlord for inconvenience,
loss of business or annoyance directly, incidentally or
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consequentially arising from any repair or restoration of any portion
of the Premises or the Property. Landlord will not carry insurance of
any kind for the protection of Tenant or any improvements paid for by
Tenant or as provided in Exhibit C or on Tenant's furniture or on any
fixtures, equipment, improvements or appurtenances of Tenant under
this Lease, and Landlord shall not be obligated to repair any damage
thereto or replace the same unless the damage is caused by landlord's
negligence.
B. CONDEMNATION. If the Premises, the portion of the property necessary
for Tenant's occupancy, or fifty percent (50%) or more of the rentable
area of the Property are made untenantable by eminent domain, or
conveyed under a threat of condemnation, this Lease shall terminate at
the option of either Landlord or Tenant as of the earlier of the date
title vests in the condemning authority or the condemning authority
first has possession of the Premises or the portion of the Property
and all Rents and other payments shall be paid to that date. In case
of taking of a part of the Premises or the Property necessary for
Tenant's occupancy that does not render those areas untenantable, then
this Lease shall continue in full force and effect and the base Rent
shall be equitably reduced based on the proportion by which the floor
area of any structures is reduced, such reduction in Rent to be
effective as of the earlier of the date the condemning authority first
has possession of such portion or title vests in the condemning
authority. The Premises or the portion of the Property necessary for
Tenant's occupancy shall not be deemed untenantable if less than
twenty-five percent (25%) of each of those areas are condemned.
Landlord shall be entitled to the entire award from the condemning
authority attributable to the value of the Premises or the Property
and Tenant shall make no claim for the value of its leasehold. Tenant
shall be permitted to make a separate claim against the condemning
authority for moving expenses or damages resulting from interruption
in its business, provided that in no event shall Tenant's claim reduce
Landlord's award.
16. INSURANCE.
A. LIABILITY INSURANCE. During the Lease term, Tenant shall pay for and
maintain commercial general liability insurance with broad form
property damage and contractual liability endorsements. This policy
shall name Landlord as an additional insured, and shall insure
Tenant's activities and those of Tenant's employees, officers,
contractors, licensees, agents, servants, employees, guests, invitees
or visitors with respect to the Premises against loss, damage or
liability for personal injury or death or loss or damage to property
with a combined single limit of not less than $1,000,000, and a
deductible of not more than $5,000. The insurance will be
non-contributory with any liability insurance carried by Landlord.
B. TENANT'S INSURANCE. During the Lease term, Tenant shall pay for and
maintain replacement cost fire and extended coverage insurance, with
vandalism and malicious mischief, sprinkler leakage and earthquake
endorsements, in an amount sufficient to cover not less than 100% of
the full replacement costs, as the same may exist from time to time,
of all Tenant's personal property, fixtures, equipment and tenant
improvements.
C. MISCELLANEOUS. Insurance required under this Section shall be with
companies rated A-V or better in Best's Insurance Guide, and which are
authorized to transact business in the State of Washington. No
insurance policy shall be cancelled or reduced in coverage and each
such policy shall provide that it is not subject to cancellation or a
reduction in coverage except after thirty (30) days' prior written
notice to Landlord. Tenant shall deliver to Landlord upon commencement
of the Lease and from time to time thereafter, copies or certificates
of the insurance policies required by this Section. In no event shall
the limit of such policies be considered as limiting the liability of
Tenant under this Lease.
D. LANDLORD INSURANCE. Landlord shall carry standard form extended
coverage fire insurance on the building shell and core in the amount
of their full replacement value, and such other insurance of such
types and amounts as Landlord, in its discretion, shall deem
reasonably appropriate. The costs of any such insurance may be
included in the Operating Costs by a "blanket policy" insuring other
parties and/or locations in addition to the Building, in which case
the portion of the premiums therefor allocable to the Building and
Project shall be included in the Operating Costs. In addition to the
foregoing, in the event Tenant fails to provide or keep in force any
of the insurance required above, Landlord, in its discretion, may
provide such insurance, in which event, the costs thereof shall be
payable by Tenant to Landlord as additional rent on the first day of
the calendar month immediately following demand therefor from
Landlord.
E. WAIVER OF SUBROGATION. Landlord and Tenant hereby release each other
and any other tenant, their agents or employees, from responsibility
for, and waive their entire claim of recovery for any loss or damage
arising from any cause covered by insurance required to be carried by
each of them. Each party shall provide notice to the insurance carrier
or carriers of this mutual waiver of subrogation, and shall cause its
respective insurance carriers to waive all rights of subrogation
against the other. This waiver shall not apply to the extent of the
deductible amounts to any such policies or to the extent of
liabilities exceeding the limits of such policies.
17. INDEMNIFICATION. Tenant shall defend, indemnify, and hold Landlord harmless
against all liabilities, damages, costs, and expenses, including attorneys'
fees, arising from any negligent or wrongful act or omission of Tenant or
Tenant's officers, contractors, licensees, agents, servants, employees,
guests, invitees, or visitors on or around the Premises, or arising from
any breach of this Lease by Tenant. Tenant shall use legal counsel
acceptable to Landlord in defense of any action within Tenant's defense
obligation. Landlord shall defend, indemnify and hold Tenant harmless
against all liabilities, damages, costs, and expenses, including attorneys'
fees, arising from any negligent or wrongful act or omission of Landlord or
Landlord's officers, contractors, licensees, agents, servants, employees,
guests, invitees, or visitors on or around the Premises or arising from any
breach of this Lease by Landlord. Landlord shall use legal counsel
acceptable to Tenant in defense of any action within Landlord's defense
obligation. The provisions of this section 17 shall survive expiration or
termination of this Lease.
18. ASSIGNMENT AND SUBLETTING. Tenant shall not assign, sublet, mortgage,
encumber or otherwise transfer any interest in this Lease (collectively
referred to as a "Transfer") or any part of the Premises without first
obtaining Landlord's written consent, which shall not be unreasonably
withheld or delayed. No Transfer shall relieve Tenant of any liability
under this Lease notwithstanding Landlord's consent to such Transfer.
Consent to any Transfer shall not operate as a waiver of the necessity for
Landlord's consent to any subsequent Transfer.
If Tenant is a partnership, limited liability company, corporation, or
other entity, transfer of this Lease by merger, consolidation, redemption
or liquidation, or any change(s) in the ownership of, or power to vote,
which singularly or collectively represents a majority of the beneficial
interest in Tenant, shall constitute a Transfer under this Section.
5
LEASE AGREEMENT
(CONTINUED)
As a condition of Landlord's approval, if given, any potential assignee or
sublessee otherwise approved by Landlord shall assume all obligations of
Tenant under this Lease and shall be jointly and severally liable with
Tenant and any guarantor, if required, for the payment of Rent and
performance of all terms of this Lease. In connection with any Transfer,
Tenant shall provide Landlord with copies of all assignments, subleases and
assumption instruments.
19. LIENS. Tenant shall keep the Premises free from any liens created by or
through Tenant. Tenant shall indemnify and hold Landlord harmless from
liability from any such liens including, without limitation, liens arising
from any Alterations. If a lien is filed against the Premises by any person
claiming by, through or under Tenant, Tenant shall, upon request of
Landlord, at Tenant's expense, immediately furnish to Landlord a bond in
form and amount and issued by a surety satisfactory to Landlord,
indemnifying Landlord and Premises against all liabilities, costs and
expenses, including attorneys' fees, which Landlord could reasonably incur
as a result of such liens(s).
20. DEFAULT. The following occurrences shall be deemed an Event of Default by
Tenant:
A. FAILURE TO PAY. Tenant fails to pay and sum, including Rent, due under
this Lease following five (5) days written notice from Landlord of the
failure to pay.
B. VACATION/ABANDONMENT. Tenant vacates the Premises (defined as an
absence for at least fifteen (15) consecutive days without prior
notice to Landlord), or Tenant abandons the Premises (defined as an
absence of five (5) days or more while Tenant is in breach of some
other term of this Lease). Tenant's vacation or abandonment of the
Premises shall not be subject to any notice or right to cure.
C. INSOLVENCY. Tenant becomes insolvent, voluntarily or involuntarily
bankrupt, or a receiver, assignee or other liquidating officer is
appointed for Tenant's business, provided that in the event of any
involuntary bankruptcy or other insolvency proceeding, the existence
of such proceeding shall constitute an Event of Default only if such
proceeding is not dismissed or vacated within sixty (60) days after
its institution or commencement.
▇. ▇▇▇▇ OR EXECUTION. Tenant's interest in this Lease or the Premises, or
any part thereof, is taken by execution or other process of law
directed against Tenant, or is taken or subjected to any attachment by
any creditor of Tenant, if such attachment is not discharged within
fifteen (15) days after being levied.
E. OTHER NON-MONETARY DEFAULTS. Tenant breaches any agreement, term or
covenant of this Lease other than one requiring the payment of money
and not otherwise enumerated in this Section, and the breach continues
for a period of thirty (30) days after notice by Landlord to Tenant of
the breach.
F. FAILURE TO TAKE POSSESSION. Tenant fails to take possession of the
Premises on the Commencement Date.
21. REMEDIES. Landlord shall have the following remedies upon an Event of
Default. Landlord's rights and remedies under this Lease shall be
cumulative, and none shall exclude any other right or remedy allowed by
law.
A. TERMINATION OF LEASE. Landlord may terminate Tenant's interest under
the Lease, but no act by Landlord other than written notice from
Landlord to Tenant of termination shall terminate this Lease. The
Lease shall terminate on the date specified in the notice of
termination. Upon termination of this Lease, Tenant will remain liable
to Landlord for damages in an amount equal to the rent and other sums
that would have been owing by Tenant under this Lease for the balance
of the Lease term, less the net proceeds, if any, of any reletting of
the premises by Landlord subsequent to the termination, after
deducting all Landlord's Reletting Expenses (as defined below).
Landlord shall be entitled to either collect damages from Tenant
monthly on the days on which rent or other amounts would have been
payable under the Lease, or alternatively, Landlord may accelerate
Tenant's obligations under the Lease and recover from Tenant: (i)
unpaid rent which had been earned at the time of termination; (ii) the
amount by which the unpaid rent which would have been earned after
termination until the time of award exceeds the amount of rent loss
that Tenant proves could reasonably have been avoided; (iii) the
amount by which the unpaid rent for the balance of the term of the
Lease after the time of award exceeds the amount of rent loss that
Tenant proves could reasonably be avoided (discounting such amount by
the discount rate of the Federal Reserve Bank of San Francisco at the
time of the award, plus 1%); and (iv) any other amount necessary to
compensate Landlord for all the detriment proximately caused by
Tenant's failure to perform its obligations under the Lease, or which
in the ordinary course would be likely to result from the Event of
Default, including without limitation Reletting Expenses described in
Section 21b.
B. RE-ENTRY AND RELETTING. Landlord may continue this Lease in full force
and effect, and without demand or notice, re-enter and take possession
of the Premises or any part thereof, expel the Tenant from the
Premises and anyone claiming through or under the Tenant, and remove
the personal property of either. Landlord may relet the Premises, or
any part of them, in Landlord's or Tenant's name for the account of
Tenant, for such period of time and at such other terms and
conditions, as Landlord, in its discretion, may determine. Landlord
may collect and receive the rents for the Premises. Re-entry or taking
possession of the Premises by Landlord under this Section shall not be
construed as an election on Landlord's part to terminate this Lease,
unless a written notice of termination is given to Tenant. Landlord
reserves the right following any re-entry or reletting, or both, under
this Section to exercise its right to terminate the Lease. During the
Event of Default, Tenant will pay Landlord the rent and other sums
which would be payable under this Lease if repossession had not
occurred, plus the net proceeds, if any, after reletting the Premises,
after deducting Landlord's Reletting Expenses. "Reletting Expenses" is
defined to include all expenses incurred by Landlord in connection
with reletting the Premises, including without limitation, all
repossession costs, brokerage commissions, attorneys' fees, remodeling
and repair costs, costs for removing and storing Tenant's property and
equipment, and rent concessions granted by Landlord to any new Tenant,
prorated over the life of the new lease.
C. WAIVER OF REDEMPTION RIGHTS. Tenant, for itself, and on behalf of any
and all persons claiming through or under Tenant, including creditors
of all kinds, hereby waives and surrenders all rights and privileges
which they may have under any present or future law, to redeem the
Premises or to have a continuance of this Lease for the Lease term, as
it may have been extended.
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(CONTINUED)
D. NONPAYMENT OF ADDITIONAL RENT. All costs which Tenant agrees to pay to
Landlord pursuant to this Lease shall in the event of nonpayment be
treated as if they were payments of Rent, and Landlord shall have all
the rights herein provided for in case of nonpayment of Rent.
E. FAILURE TO REMOVE PROPERTY. If Tenant fails to remove any of its
property from the Premises at Landlord's request following an uncured
Event of Default, Landlord may, at its option, remove and store the
property at Tenant's expense and risk. If Tenant does not pay the
storage cost within five (5) days of Landlord's request, Landlord may,
at its option, have any or all of such property sold at public or
private sale (and Landlord may become a purchaser at such sale), in
such manner as Landlord deems proper, without notice to Tenant.
Landlord shall apply the proceeds of such sale: (i) to the expense of
such sale, including reasonable attorneys' fees actually incurred;
(ii) to the payment of the costs or charges for storing such property;
(iii) to the payment of any other sums of money which may then be or
thereafter become due Landlord from Tenant under any of the terms
hereof; and (iv) the balance, if any, to Tenant. Nothing in this
Section shall limit Landlord's right to sell Tenant's personal
property as permitted by law to foreclose Landlord's lien for unpaid
rent.
22. MORTGAGE SUBORDINATION AND ATTORNMENT. This Lease shall automatically be
subordinate to any mortgage or deed of trust created by Landlord which is
now existing or hereafter placed upon the Premises including any advances,
interest, modifications, renewals, replacements or extensions ("Landlord's
Mortgage"), provided the holder of any Landlord's Mortgage or any person(s)
acquiring the Premises at any sale or other proceeding under any such
Landlord's Mortgage shall elect to continue this Lease in full force and
effect. Tenant shall attorn to the holder of any Landlord's Mortgage or any
person(s) acquiring the Premises at any sale or other proceeding under any
Landlord's Mortgage provided such person(s) assume the obligations of
Landlord under this Lease. Tenant shall promptly and in no event later than
fifteen (15) days execute, acknowledge and deliver documents which the
holder of any Landlord's Mortgage may reasonably require as further
evidence of this subordination and attornment. Notwithstanding the
foregoing, Tenant's obligations under this Section are conditioned on the
holder of each of Landlord's Mortgage and each person acquiring the
Premises at any sale or other proceeding under any such Landlord's Mortgage
not disturbing Tenant's occupancy and other rights under this Lease, so
long as no uncured Event of Default exists.
23. NON-WAIVER. Landlord's waiver of any breach of any term contained in this
Lease shall not be deemed to be a waiver of the same term for subsequent
acts of Tenant. The acceptance by Landlord of Rent or other amounts due by
Tenant hereunder shall not be deemed to be a waiver of any breach by Tenant
preceding such acceptance.
24. HOLDOVER. If Tenant shall, without the written consent of Landlord, hold
over after the expiration or termination of the Term, such tenancy shall be
deemed to be on a month-to-month basis and may be terminated according to
Washington law. During such tenancy, Tenant agrees to pay to Landlord one
hundred twenty-five percent (125%) the rate of rental last payable under
this Lease, unless a different rate is agreed upon by Landlord. All other
terms of the Lease shall remain in effect.
25. NOTICES. All notices under this Lease shall be in writing and effective (i)
when delivered in person, (ii) three (3) days after being sent by
registered or certified mail to Landlord or Tenant, as the case may be, at
the Notice Addresses set forth in Section 1(h); or (iii) upon confirmed
transmission by facsimile to such persons at the facsimile numbers set
forth in Section 1(h) or such other addresses/facsimile numbers as may from
time to time be designated by such parties in writing.
26. COSTS AND ATTORNEYS' FEES. If Tenant or Landlord engage the services of an
attorney to collect monies due or to bring any action for any relief
against the other, declaratory or otherwise, arising out of this Lease,
including any suit by Landlord for the recovery of Rent or other payments,
or possession of the Premises, the losing party shall pay the prevailing
party a reasonable sum for attorneys' fees in such suit, at trial and on
appeal.
27. ESTOPPEL CERTIFICATES. Tenant shall, from time to time, upon written
request of Landlord, execute, acknowledge and deliver to Landlord or its
designee a written statement specifying the following, subject to any
modifications necessary to make such statements true and complete: (i) the
date the Lease term commenced and the date it expires; (ii) the amount of
minimum monthly Rent and the date to which such Rent has been paid; (iii)
that this Lease is in full force and effect and has not been assigned,
modified, supplemented or amended in any way; (iv) that this Lease
represents the entire agreement between the parties; (v) that all
conditions under this Lease to be performed by Landlord have been
satisfied; (vi) that there are no existing claims, defenses or offsets
which the Tenant has against the enforcement of this Lease by Landlord;
(vii) that no Rent has been paid more than one month in advance; and (viii)
that no security has been deposited with Landlord (or, if so, the amount
thereof). Any such statement delivered pursuant to this Section may be
relied upon by a prospective purchaser of Landlord's interest or assignee
of any mortgage or new mortgagee of Landlord's interest in the Premises. If
Tenant shall fail to respond within ten (10) days of receipt by Tenant of a
written request by Landlord as herein provided, Tenant shall be deemed to
have given such certificate as above provided without modification and
shall be deemed to have admitted the accuracy of any information supplied
by Landlord to a prospective purchaser or mortgagee.
28. TRANSFER OF LANDLORD'S INTEREST. This Lease shall be assignable by Landlord
without the consent of Tenant. In the event of any transfer or transfers of
Landlord's interest in the Premises, other than a transfer for security
purposes only, upon the assumption of this Lease by the transferee,
Landlord shall be automatically relieved of obligations and liabilities
accruing from and after the date of such transfer, except for any retained
security deposit or prepaid rent, and Tenant shall attorn to the
transferee.
29. RIGHT TO PERFORM. If Tenant shall fail to timely pay any sum or perform any
other act on its part to be performed hereunder, Landlord may make any such
payment or perform any such other act on Tenant's part to be made or
performed as provided in this Lease. Tenant shall, on demand, reimburse
Landlord for its expenses incurred in making such payment or performance.
Landlord shall (in addition to any other right or remedy of Landlord
provided by law) have the same rights and remedies in the event of the
nonpayment of sums due under this Section as in the case of default by
Tenant in the payment of Rent.
30. HAZARDOUS MATERIAL. Landlord represents and warrants to Tenant that, to the
best of Landlord's knowledge, there is no "Hazardous Material" (as defined
below) on, in or under the Premises as the Commencement Date except as
otherwise disclosed to Tenant in writing before the execution of this
Lease. If there is any Hazardous Material on, in or under the Premises as
of the Commencement Date which has been or thereafter becomes unlawfully
released through no fault of Tenant, then Landlord shall indemnify, defend
and hold Tenant harmless from any and all claims, judgments, damages,
penalties, fines, costs, liabilities or losses including without limitation
sums paid in settlement of
7
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(CONTINUED)
claims, attorneys' fees and expert fees, incurred or suffered by Tenant
either during or after the Lease term as the result of such contamination.
Tenant shall not cause or permit any Hazardous Material to be brought upon,
kept, or used in or about, or disposed of on the Premises by Tenant, its
agents, employees, contractors or invitees, except in strict compliance
with all applicable federal, state and local laws, regulations, codes and
ordinances. If Tenant breaches the obligations stated in the preceding
sentence, then Tenant shall indemnify, defend and hold Landlord harmless
from any and all claims, judgments, damages, penalties, fines, costs,
liabilities or losses including, without limitation, diminution in the
value of the Premises, damages for the loss or restriction on use of
rentable or usable space or of any amenity of the Premises, or elsewhere,
damages arising from any adverse impact on marketing of space at the
Premises, and sums paid in settlement of claims, attorneys' fees,
consultant fees and expert fees incurred or suffered by Landlord either
during or after the Lease term. These indemnifications by Landlord and
Tenant include, without limitation, costs incurred in connection with any
investigation of site conditions or any clean-up, remedial, removal or
restoration work, whether or not required by any federal, state or local
governmental agency or political subdivision, because of Hazardous Material
present in the Premises, or in soil or ground water on or under the
Premises. Tenant shall immediately notify Landlord of any inquiry,
investigation or notice that Tenant may receive form any third party
regarding the actual suspected presence of Hazardous Material on the
Premises.
Without limiting the foregoing, if the presence of any Hazardous Material
brought upon, kept or used in or about the Premises by Tenant, its agents,
employees, contractors or invitees, results in any unlawful release of
Hazardous Materials on the Premises or any other property, Tenant shall
promptly take all actions, at its sole expense, as are necessary to return
the Premises or any other property, to the condition existing prior to the
release of any such Hazardous Material; provided that Landlord's approval
of such actions shall first be obtained, which approval may be withheld at
Landlord's sole discretion.
As used herein, the term "Hazardous Material" means any hazardous,
dangerous, toxic or harmful substance, material or waste including
biomedical waste which is or becomes regulated by any local governmental
authority, the State of Washington or the United States Government, due to
its potential harm to the health, safety or welfare of humans or the
environment. The provisions of this Section 30 shall survive expiration or
termination of this Lease.
31. QUIET ENJOYMENT. So long as Tenant pays the Rent and performs all of its
obligations in this Lease, Tenant's possession of the Premises will not be
disturbed by Landlord or anyone claiming by, through or under Landlord, or
by the holders of any Landlord's Mortgage or any successor thereto.
32. GENERAL.
A. HEIRS AND ASSIGNS. This Lease shall apply to and be binding upon
Landlord and Tenant and their respective heirs, executors,
administrators, successors and assigns.
B. ENTIRE AGREEMENT. This Lease contains all of the covenants and
agreements between Landlord and Tenant relating to the Premises. No
prior or contemporaneous agreements or understanding pertaining to the
Lease shall be valid or of any force or effect and the covenants and
agreements of this Lease shall not be altered, modified or added to
except in writing signed by Landlord and Tenant.
C. SEVERABILITY. Any provision of this Lease which shall prove to be
invalid, void or illegal shall in no way affect, impair or invalidate
any other provision of this Lease.
D. FORCE MAJEURE. Time periods for either party's performance under any
provisions of this Lease (excluding payment of Rent) shall be extended
for periods of time during which the party's performance is prevented
due to circumstances beyond such party's control, including without
limitation, fires, floods, earthquakes, lockouts, strikes, embargoes,
governmental regulations, acts of God, public enemy, war or other
strife.
E. GOVERNING LAW. This Lease shall be governed by and construed in
accordance with the laws of the state of Washington.
F. MEMORANDUM OF LEASE. Except for the pages containing the Commission
Agreement, the parties signatures and attached Exhibits A and B, this
Lease shall not be recorded. However, Landlord and Tenant shall, at
the other's request, execute and record a memorandum of Lease in
recordable form that identifies Landlord and Tenant, the commencement
and expiration dates of the Lease, and the legal description of the
Premises as set forth on attached Exhibit B.
G. SUBMISSION OF LEASE FORM NOT AN OFFER. One party's submission of this
Lease to the other for review shall not constitute an offer to Lease
the Premises. This Lease shall not become effective and binding upon
Landlord and Tenant until it has been fully signed by both Landlord
and Tenant.
H. NO LIGHT, AIR OR VIEW EASEMENT. Tenant has not been granted an
easement or other right for light, air or view to or from the
Premises. Any diminution or shutting off of light, air or view by any
structure which may be erected on or adjacent to the Building shall in
no way affect this Lease or the obligations of Tenant hereunder or
impose any liability on Landlord.
I. AUTHORITY OF PARTIES. Any individual signing this Lease on behalf of
an entity represents and warrants to the other that such individual
has authority to do so and, upon such individual's execution, that
this Lease shall be binding upon and enforceable against the party on
behalf of whom such individual is signing.
33. EXHIBITS AND RIDERS. The following exhibits and riders are made a part of
this Lease:
Exhibit A: Legal Description
Exhibit B: Tenant Improvement Schedule
Exhibit C: Renewal Option and Early Access
8
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(CONTINUED)
CHECK THE BOX FOR ANY OF THE FOLLOWING THAT WILL APPLY. ANY RIDERS CHECKED
SHALL BE EFFECTIVE ONLY UPON BEING INITIALED BY THE PARTIES AND ATTACHED TO
THE LEASE. CAPITALIZED TERMS USED IN THE RIDERS SHALL HAVE THE MEANING
GIVEN TO THEM IN THE LEASE.
[ ] Rent Rider
[ ] Retail Use Rider
[ ] Arbitration Rider
[ ] Limitation Rider
[ ] Guaranty of Tenant's Lease Obligations Rider
[ ] Parking Rider
[ ] Option to Extend Rider
[ ] Rules and Regulations
34. AGENCY DISCLOSURE. At the signing of this Lease,
Landlord' Agent: ▇▇▇▇▇▇ ▇▇▇▇▇, Pacific Real Estate Partners
Represents The International Union of Operating Engineers Local 302
and Tenant's Licensee ▇▇▇▇ ▇▇▇▇, GVA ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
represents NW Biotherapeutics, a Delaware Corporation
If Tenant's Licensee and Landlord's Agent are different salespersons
affiliated with the same Broker, then both Tenant and Landlord confirm
their consent to that Broker acting as a dual agent. If Tenant's Licensee
and Landlord's Agent are the same salesperson representing both parties,
then both Landlord and Tenant confirm their consent to that salesperson and
his/her Broker acting as dual agents. If Tenant's Licensee, Landlord's
Agent, or their Broker are dual agents, Landlord and Tenant consent to
Tenant's Licensee, Landlord's Agent and their Broker being compensated
based on a percentage of the rent or as otherwise disclosed on an attached
addendum. Neither Tenant's Licensee, Landlord's Agent or their Broker are
receiving compensation form more than one party to this transaction unless
otherwise disclosed on an attached addendum, in which case Landlord and
Tenant consent to such compensation. Landlord and Tenant confirm receipt of
the pamphlet entitled "The Law of Real Estate Agency."
35. COMMISSION AGREEMENT. Landlord agrees to pay a commission to Landlord's
Broker (identified in the Agency Disclosure paragraph above ) as follows:
[ ] $_____________________
[X] 7.5% of the gross rent payable pursuant to the Lease.
[ ] $_____________________ per square foot of the Premises
[ ] Other:
Landlord's Broker [ ] shall [X] shall not (shall not if not filled in) be
entitled to a commission upon the extension by Tenant of the Lease term
pursuant to any right reserved to Tenant under the Lease calculated [ ] as
provided above or [ ] as follows ____________________ (if no box is
checked, as provided above). Landlord's Broker [ ] shall [X] shall not
(shall not if not filled in) be entitled to a commission upon any expansion
of Premises pursuant to any right reserved to Tenant under the Lease,
calculated [ ] as provided above or [ ] as follows ____________________ (if
no box is checked, as provided above).
Any commission shall be earned upon occupancy of the Premises by Tenant,
and paid one-half upon execution of the Lease and one-half upon occupancy
of the Premises by Tenant. Landlord's Broker shall pay to Tenant's Broker
(identified in the Agency Disclosure paragraph above) the amount stated in
a separate agreement between them or, if there is no agreement,
$____________________/____________________% (complete only one) of any
commission paid to Landlord's Broker, within five (5) days after receipt by
Landlord's Broker.
If any other lease or sale is entered into between Landlord and Tenant
pursuant to a right reserved to Tenant under the Lease, Landlord [ ] shall
[X] shall not (shall not if not filled in) pay an additional commission
according to any commission agreement or, in the absence of one, according
to the commission schedule of Landlord's Broker in effect as of the
execution of this Lease. Landlord's successor shall be obligated to pay any
unpaid commissions upon any transfer of this Lease and any such transfer
not release form liability to pay such commissions.
36. BROKER PROVISIONS.
LANDLORD'S AGENT, TENANT'S LICENSEE AND THEIR BROKERS HAVE MADE NO
REPRESENTATIONS OR WARRANTIES CONCERNING THE PREMISES, THE MEANING OF THE
TERMS AND CONDITIONS OF THIS LEASE, LANDLORD'S OR TENANT'S FINANCIAL
STANDING, ZONING, COMPLIANCE OF THE PREMISES WITH APPLICABLE LAWS, SERVICE
OR CAPACITY OF UTILITIES, OPERATING EXPENSES, OR HAZARDOUS MATERIALS.
LANDLORD AND TENANT ARE EACH ADVISED TO SEEK INDEPENDENT LEGAL ADVICE ON
THESE AND OTHER MATTERS ARISING UNDER THIS LEASE.
IN WITNESS WHEREOF this Lease has been executed the date and year first
written above.
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(CONTINUED)
------------------------------------- ----------------------------------------
LANDLORD: TENANT:
------------------------------------- ----------------------------------------
LANDLORD: TENANT:
------------------------------------- ----------------------------------------
BY: BY:
------------------------------------- ----------------------------------------
ITS: ITS:
10
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(CONTINUED)
STATE OF WASHINGTON )
)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 __________________________________ signed this
instrument, on oath stated that _____________________________________ was
authorized to execute the instrument and acknowledged it as the
_____________________________ of ________________________________ to be the free
and voluntary act of such party for the uses and purposes mentioned in the
instrument.
DATED: _________________, ___________
(Seal or stamp) ________________________________________
Printed Name: __________________________
NOTARY PUBLIC in and for the State of
Washington residing at: ________________
My commission expires: _________________
STATE OF WASHINGTON )
)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 __________________________________ signed this
instrument, on oath stated that _____________________________________ was
authorized to execute the instrument and acknowledged it as the
_____________________________ of ________________________________ to be the free
and voluntary act of such party for the uses and purposes mentioned in the
instrument.
DATED: ________________, ___________
(Seal or stamp) ________________________________________
Printed Name: __________________________
NOTARY PUBLIC in and for the State of
Washington residing at: ________________
My commission expires: _________________
11
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(CONTINUED)
EXHIBIT A
(Legal Description)
EXHIBIT A
Lot A of that certain ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇. ▇-▇▇-▇▇, as
recorded with the King County Department of Records and Elections, No.
▇▇▇▇▇▇▇▇▇▇, otherwise described as follows:
BEGINNING at the center line intersection of ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ of the plat of Quadrant Business Park - Bothell, City of Bothell,
as recorded in Volume 131 of Plats, at pages 87-91, Records of Xing County,
Washington;
THENCE North 00-02-04 East, 16.60 feet along the center line of 120th Avenue NE,
THENCE Northerly 392.06 feet along the arc of the ▇▇▇▇▇ ▇▇▇▇▇▇ center line to
the left, having a radius of 600.00 feet to the point of tangent of the curve;
THENCE South 52-41-42 West, 40 feet to the west margin of ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇.
THENCE North 37-18-18 West along the west margin of 120th Avenue NE, 11.05 feet
to the TRUE POINT OF BEGINNING.
THENCE North 37-18-18 West along the west margin of ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇-▇▇
feet;
THENCE South 64-25-04 West, 250.00 feet;
THENCE South 22-23-55 East, 250.00 feet;
THENCE North 68-20-36 East, 332-68 feet to the TRUE POINT OF BEGINNING.
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LEASE AGREEMENT
(CONTINUED)
EXHIBIT B
(Tenant Improvement Schedule)
1. Landlord agrees to remove the half wall from the office space.
2. Landlord agrees to clean the office space to meet a good office
environment.
EXHIBIT C
(Renewal Option and Early Access)
1. Tenant shall have the ability to renew their lease for one year with three
months prior written notice. Rates shall be at then market conditions.
2. Upon full execution of the lease and delivery of certificate of insurance,
Tenant shall have the right to access the space starting December 15, 2005.
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