▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ LEASE AGREEMENT
BETWEEN
401 ▇▇▇▇▇▇▇ ▇▇▇▇ LLC
AND
F5 NETWORKS, INC.
1. BASIC LEASE TERMS
Section 1 represents a summary of the basic terms of this Office Space
Lease for 401 ▇▇▇▇▇▇▇ ▇▇▇▇.
a. DATE OF LEASE: July 31, 1999
b. TENANT: F5 Networks, Inc.
ADDRESS OF LEASED PREMISES: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ADDRESS FOR BILLING AND NOTICES: Prior to Commencement Date:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇ ▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇, General Counsel
Same as above except the address
shall be the same as Premises after
commencement of the Lease.
c. LANDLORD: 401 ▇▇▇▇▇▇▇ ▇▇▇▇ L.L.C.
ADDRESS FOR NOTICES: c/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Company
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇ ▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
or such other place as
Landlord may from time to time
designate by notice to Tenant
d. PREMISES AREA: 83,097 rentable square feet,
Floors 1 through ▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇: 84,808 rentable square feet
TENANT'S PERCENTAGE OF BUILDING 97.98%
f. PROJECT AREA 297,682 rentable square feet
TENANT'S PERCENTAGE OF PROJECT: 27.91%
g. TERM OF LEASE: This Lease shall commence on July 1, 2000 or such
earlier or later date as is provided in Section 3 (the
"Commencement Date") and shall terminate on the last day
of the one hundredth and forty-fourth (144th) full
calendar month after the Commencement Date (the
"Expiration Date").
h. BASE MONTHLY RENT: $164,462.81
i. PARKING: Initial Monthly Charge of $100.00 per month for
each Parking Permit.
Number of parking permits allocated to Tenant: 158
spaces.
j. RENT ADJUSTMENT(S): MONTHS BASE MONTHLY RENT
------ -----------------
61 - 72 $173,118.75
73 - 84 $176,581.13
85 - 96 $180,043.50
97 - 108 $183,505.88
109 - 144 $186,968.25
k. ADDITIONAL RENT - ESTIMATED INITIAL
TENANT'S SHARE OF EXPENSES: $46,742.06 per month
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l. SECURITY DEPOSIT: $2,500,000 in the form of a Letter of Credit as further
described in Section 6 and Exhibit H.
m. NON-REFUNDABLE CLEANING FEE N/A
n. PREPAID RENT N/A
o. TENANT'S USE OF PREMISES: General Purpose Office with, Shipping/Light
Manufacturing Facility & Storage Space on the First
Floor
p. BROKERS: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Washington Partners, Inc.
TO BE PAID BY: Landlord
q. GUARANTOR(S): N/A
r. ADDITIONAL TERMS: Sections 29 to 42
s. EXHIBIT(S): Exhibit A - The Premises
Exhibit B - The Building and the Project
Exhibit C - Building Shell and Core Outline Specifications
Exhibit D - Signage Criteria
Exhibit E - Janitorial Specifications
Exhibit F- Tenant Work Letter
Exhibit G Option Space Performance Criterion
Exhibit H Form of Letter of Credit
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2. PREMISES/COMMON AREAS/PROJECT.
a. PREMISES. Landlord leases to Tenant the premises described in
Section 1 and in Exhibit A (the "Premises"), located in the
Building described on Exhibit B. The Building is part of a larger,
multi-building development shown on Exhibit B (the "Project", with
the buildings collectively referred to as the "Buildings"). Upon
completion of the Tenant Improvements to the Premises, Landlord
shall cause the rentable square footage of the Premises to be
measured by Landlord's architect using the BOMA American National
Standard Institute Publication, ANSI Z65.1-1996 standards (the
"Rentable Square Footage"), which measurement shall govern with
respect to the Premises Area of Section 1(d). Tenant shall have the
right to have a Washington-licensed surveyor approved by Landlord
and jointly responsible to Landlord and Tenant verify the Premises
Net Rentable Area determined by Landlord's Architect, if it does so
within twenty (20) days after receipt of the notice from Landlord's
Architect. If based on such verification Tenant disagrees with the
Net Rentable Area determined by Landlord's Architect it shall
advise Landlord and its Architect of the deviation within ten (10)
days thereafter or be deemed to have accepted Landlord's
Architect's determination. If Tenant gives a timely notification of
disagreement, then the parties shall jointly select a
Washington-licensed surveyor to review the calculations of
Landlord's architect and the Tenant selected surveyor and make the
determination of Premises Net Rentable Area, which determination
shall be final and binding on the parties. Landlord shall cause
each building within the Project to be similarly measured for the
purposes of Sections 1(e) and 1(f) upon completion of the interior
improvements of such building(s). Each building shall be deemed
added to the Project for the purposes of such computation upon the
completion of the Building Shell and Core improvements, as defined
in Exhibit C, to such building and the computations of Section 1,
if delayed pending final measurement of Rentable Square Footage,
shall be deemed retroactive to such date.
b. COMMON AREAS. As used in this Lease, "Common Areas" shall mean all
portions of the Project not leased or demised for lease to specific
tenants. During the Lease Term, Tenant and its licensees, invitees,
customers and employees shall have the non-exclusive right to use
the public portions of the Common Areas, including all parking
areas, landscaped areas, entrances, lobbies, elevators, stairs,
corridors, and public restrooms in common with Landlord, other
Project tenants and their respective licensees, invitees, customers
and employees. Landlord shall be entitled to create limited Common
Areas within specified Buildings for exclusive use of the tenants
within such Buildings. Landlord shall at all times have exclusive
control and management of the Common Areas and no diminution
thereof shall be deemed a constructive or actual eviction or
entitle Tenant to compensation or a reduction or abatement of rent.
Landlord in its discretion may increase, decrease or change the
number, locations and dimensions of any Common Areas and other
improvements shown on Exhibit B, and/or designate such areas
limited Common Areas assigned to particular buildings within the
Project.
c. PROJECT. Landlord reserves the right in its sole discretion to
modify or alter the configuration or number of buildings in the
Project, so long as such modification or alteration does not
materially modify or alter Tenant's Premises and provided only that
upon such modification or alteration, the Project Area as set forth
in Section 1(e) shall be adjusted to reflect such modification or
alteration using the BOMA American National Standard Institute
Publication, ANSI Z65.1-1996.
3. TERM. The Commencement Date listed in Section 1 of this Lease represents
an estimate of the actual Commencement Date. The actual Commencement
Date shall be the first to occur of the following events: (i) the date
Tenant has substantially commenced the use and occupancy of the Premises
or any portion thereof for purposes other than completion of the Tenant
Work (as defined in Exhibit F), or (ii) one hundred twenty (120) days
(the "Tenant Work Period") after the Delivery Date as defined in Exhibit
F. The scheduled Delivery Date is February 29, 2000. As used herein,
"Unexcused Delay" means the failure to meet an applicable deadline when
caused by delays other than Tenant Delay or Force Majeure. "Day(s) of
Unexcused Delay" means the number of days of delay past the applicable
deadline caused by Unexcused Delay (excluding the effect of Tenant Delay
or Force Majeure).
The Tenant Work Period shall be extended by the amount of any Unexcused
Delay. If on September 1, 2000, as a result of Unexcused Delay either
(w) the Tenant Work is not yet substantially complete or (x) Tenant
cannot occupy the Premises because the condition of the Building Shell
and Core prevents issuance of such building permit sign offs as are
necessary for beneficial occupancy of the Premises, then in addition to
any extension of the Tenant Work Period as specified above, Tenant shall
receive a credit against Base Rent that first becomes due under this
Lease, in an amount equal to one (1) day of Base Rent for each such Day
of Unexcused Delay. If, on November 1, 2000, as a result of Unexcused
Delay either (y) the Tenant Work is not yet substantially complete or
(z) Tenant cannot occupy the Premises because the condition of the
Building Shell and Core prevents issuance of such building permit sign
offs as are necessary for beneficial occupancy of the Premises, and
Landlord does not substantially complete the Building Shell and Core so
that (subject to the completion of the Tenant Work), building permit
sign offs can be issued allowing Tenant to use and occupy the Premises
for its intended purposes within thirty (30) days after written notice
from Tenant of Tenant's intention to terminate this Lease as provided in
this sentence, then Tenant may terminate this Lease by written notice
given to Landlord at any time after the end of such thirty (30) day
period and prior to the date the Building Shell and Core is
substantially complete. If the Commencement Date is later than the
estimated Commencement Date specified in Section 1 above, then, except
as otherwise provided in this Section 3, this Lease shall not be void or
voidable and Landlord shall not be liable to Tenant for such delay.
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Following the Commencement Date, Landlord shall confirm such date to
Tenant in writing. Any dispute between Landlord and Tenant with respect
to the terms and application of this Section 3 and Exhibits C and F
attached shall be subject to binding arbitration in accordance with
Section 39 of this Lease. All provisions of this Lease, other than those
relating to the commencement of the Lease Term, the payment of Base Rent
and Additional Rent, shall become effective on the date Tenant or its
contractor or employees are first present on the Premises for
construction, installation, move-in or other purposes.
4. RENT
a. BASE MONTHLY RENT. Tenant shall pay Landlord monthly base rent in
the initial amount in Section 1 which shall be payable monthly in
advance on the first day of each and every calendar month ("Base
Monthly Rent") provided, however, the first month's Base Monthly
Rent and Tenant's Share of Expenses, including any adjustments for
Rent Abatement as described in Section 30 below, is due and payable
upon the earlier occurrence of (a) February 1, 2000 or (b) the
Commencement Date of Tenant's Premises.
For purposes of Section 467 of the Internal Revenue Code, the
parties to this Lease hereby agree to allocate the stated Rents,
provided herein, to the periods which correspond to the actual Rent
payments as provided under the terms and conditions of this
agreement.
b. RENT ADJUSTMENT.
1) Base Monthly Rent shall be increased periodically to the amounts
and at the times set forth in Section 1(j).
c. EXPENSES. The purpose of this Section 4(c) is to ensure that Tenant
bears its proportionate share of all actual Expenses related to the
use, maintenance, ownership, repair or replacement, and insurance
of the Building in which the Premises is located and associated
Common Areas. Accordingly, beginning on the date Tenant takes
possession of the Premises, Tenant shall each month pay to Landlord
one-twelfth (1/12) of Tenant's Share of Expenses related to the
Building and Associated Common Areas. As used in this Lease,
"Tenant's Share" shall mean the Premises Area, as defined in
Section 1(d), divided by the Building Area, as defined in Section
1(e), and "Tenant's Share of Expenses" shall mean total Expenses
for the Building and associated Common Areas, multiplied by
Tenant's Share, provided that Landlord may specially allocate
individual expenses where and in the manner necessary, in
Landlord's discretion, to appropriately reflect the consumption of
the expense or service. For example where some but not all premises
in the Building have HVAC, Landlord may reallocate Building
Expenses for HVAC to all premises utilizing HVAC to be apportioned
on a per square foot basis, or could allocate to each premises
utilizing HVAC the cost of maintaining that space's individual
unit. In the event the average occupancy level of the Building or
the Project for any year is less than ninety five percent (95%),
the actual Expenses for the Building or the Project for such year
shall be proportionately adjusted to reflect those costs which
Landlord estimates would have been incurred, had the Building or
Project, as applicable, been ninety five percent (95%) occupied
during such year, such that Tenant's Share of Expenses more
accurately reflects Tenant's actual usage. The Building is part of
a larger, multi-building project described on Exhibit B hereto. In
the event any Expenses are billed on a multi-building basis,
Tenant's Share of such Expenses shall be charged based on the ratio
of the Premises Area, as defined in Section 1(d) divided by the
Project Area, defined in Section 1(f). The intent of the parties is
to make rental payable by Tenant and other tenants in the Project
absolutely net to Landlord assuming at least 95% occupancy, except
for items expressly excluded in Section 4(c)(1)(f).
1) EXPENSES DEFINED. The term "Expenses" shall mean all costs and
expenses of the ownership, operation, maintenance, repair or
replacement, and insurance of the Project (allocated on a
building-by-building basis, to the extent so provided above),
including without limitation, the following costs:
(a) All supplies, materials, labor, equipment, and utilities
used in or related to the operation and maintenance of
the Project,
(b) All maintenance, management, janitorial, legal,
accounting, insurance, and service agreement costs
related to the Project. If the Building is managed by an
affiliate of Landlord, building management fees in
excess of management fees charged by independent
property managers for comparable buildings in the
Building's geographic market area shall be excluded from
defined expenses.
(c) All maintenance, replacement and repair costs relating
to the areas within or around the Project, including,
without limitation, air conditioning systems, sidewalks,
landscaping, service areas, driveways, parking Areas
(including resurfacing and restriping parking areas),
walkways, building exteriors (including painting), signs
and directories, repairing and replacing roofs, walls,
etc. These costs may be included either based on actual
expenditures or the use of an accounting reserve based
on past cost experience for the Project.
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(d) Amortization (along with reasonable financing charges)
of capital betterments made to the Project which may be
required by any government authority or which will
improve the operating efficiency of the Project
(provided, however, that the amount of such amortization
for improvements not mandated by government authority
shall not exceed in any year the amount of costs
reasonably determined by Landlord in its sole discretion
to have been saved by the expenditure either through the
reduction or minimization of increases which would have
otherwise occurred).
(e) Real Property Taxes including all taxes, assessments
(general and special) and other impositions or charges
which may be taxed, charged, levied, assessed or imposed
upon all or any portion of or in relation to the Project
or any portion thereof, any leasehold estate in the
Premises or measured by Rent from the Premises,
including any increase caused by the transfer, sale or
encumbrance of the Project or any portion thereof. "Real
Property Taxes" shall also include any form of
assessment, levy, penalty, charge or tax (other than
estate, inheritance, net income, or franchise taxes)
imposed by any authority having a direct or indirect
power to tax or charge, including, without limitation,
any city, county, state federal or any improvement or
other district, whether such tax is (1) determined by
the value of the Project or the Rent or other sums
payable under this Lease; (2) upon or with respect to
any legal or equitable interest of Landlord in the
Project or any part thereof; (3) upon this transaction
or any document to which Tenant is a party creating a
transfer in any interest in the Project, (4) in lieu of
or as a direct substitute in whole or in part of or in
addition to any real property taxes on the Project, (5)
based on any parking spaces or parking facilities
provided in the Project, or (6) in consideration for
services, such as police protection, fire protection,
street, sidewalk and roadway maintenance, refuse removal
or other services that may be provided by any
governmental or quasi-governmental agency from time to
time which were formerly provided without charge or with
less charge to property owners or occupants.
(f) Landlord agrees that Expenses as defined in Section 4(c)
shall not include the following: (i) the cost of any
special services rendered to individual tenants for
which a separate charge is billed; (ii) costs of capital
betterments except as provided in subsection 4(c)(1)(d)
above; (iii) Legal fees, brokerage commissions,
advertising costs, or other related expenses incurred by
Landlord in an effort to generate rental income; (iv)
Repairs, alterations, additions, improvements or
replacements made to rectify or correct any defect in
the original design, materials or workmanship of
Building or common areas (but not including repairs,
alterations, additions, improvements or replacements
made as a result of ordinary wear and tear); (v) Damage
and repairs attributable to fire or other casualty for
which Landlord is reimbursed from insurance proceeds;
(vi) (a) Executive Salaries or (b) Salaries of service
personnel for performance of services except to the
extent incurred directly in connection with the
management, operation, repair or maintenance of the
Building; (viii) Landlord's general overhead expenses
not related to the Building, provided that Landlord
shall be allowed to include the value of any rent-free
or rent-reduced occupancy in the Building if such is
given to the managing entity in lieu of a higher
management fee; (ix) Legal fees, accountants' fees and
other expenses incurred in connection with disputes with
tenants or other occupants of the Building or associated
with the enforcement of the terms of any leases with
other tenants or otherwise incurred for any reason other
than for the general benefit of all tenants in the
Building; (x) Costs (including permit, license and
inspection fees) incurred in renovating or otherwise
improving, decorating, painting or altering (a) vacant
space (excluding common areas) in the Building, or (b)
space for tenants or other occupants in the Building, or
(c) costs incurred in supplying any improvement item
specifically for, or specific services to, other tenants
in the Building; (xi) Principal and/or interest payments
called for under any debt secured by a mortgage or deed
of trust on the Building; (e) Landlord shall not attempt
to collect in excess of one hundred percent (100%) of
Operating Expenses and shall not recover any item of
cost more than once; (xiii) Any bad debt loss, rent
loss, or reserves for bad debts or rent loss; (xiv) All
items and services for which Tenant or any other tenant
in the Building otherwise reimburses Landlord; (xv)
Electric power costs for which any tenant directly
contracts with the local public service company; (xvi)
Costs arising from Landlord's political or charitable
contributions; (xvii) Costs, other than those incurred
in ordinary maintenance, for the purchase and
installation of sculpture, paintings or other objects of
art; (xviii) Tax penalties incurred as a result of
Landlord's negligence, inability or unwillingness to
make payments when due; (xix) Costs incurred due to a
violation by Landlord or any other tenant of the
Building of the terms and conditions of any lease; (xx)
Costs and expenses incurred in complying with hazardous
waste and environmental laws where the
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lack of compliance is caused by hazardous waste brought
into the Project by Landlord, its employees, agents or
contractors or other tenants; (xxi) Costs or expenses
which would be capitalized under generally accepted
accounting principals, and which relate to the initial
completion of the Premises, load bearing walls and other
structural elements of the Building or the Project, or
during the initial Lease Term related to the replacement
of the heating and air conditioning and other Building
and Project systems; and (xxii) direct costs of managing
the Garage paid to third party garage operators such as
management fees, attendants, cashiers and maintenance of
ticket dispensing equipment.
2) ANNUAL ESTIMATE OF EXPENSES, TENANT'S SHARE. When Tenant takes
possession of the Premises, Landlord shall estimate Tenant's
share of Expenses for the remainder of the calendar year, and
at the commencement of each calendar year thereafter, Landlord
shall estimate Tenant's Share of Expenses for the coming year
by multiplying the appropriate estimated annual Building or
Project Expenses by Tenant's Share.
3) MONTHLY PAYMENT OF EXPENSES. Tenant shall pay to Landlord,
monthly in advance, as Additional Rent, one-twelfth (1/12) of
the Annual Estimate of Tenant's Share of Expenses beginning on
the date Tenant takes possession of the Premises. As soon as
practical following each calendar year, Landlord shall prepare
an accounting of actual Expenses incurred during the prior
calendar year and such accounting shall reflect Tenant's Share
of Expenses. If the Additional Rent paid by Tenant under this
Section 4(c)(3) during the preceding calendar year was less
than the actual amount of Tenant's Share of Expenses, Landlord
shall so notify Tenant and Tenant shall pay such amount to
Landlord within 30 days of receipt of such notice. Such amount
shall be deemed to have accrued during the prior calendar year
and shall be due and payable from Tenant even though the term
of this Lease has expired or this Lease has been terminated
prior to Tenant's receipt of this notice. Tenant shall have
thirty (30) days from receipt of such notice to contest the
amount due, failure to so notify Landlord shall represent
final determination of Tenant's Share of Expenses. If Tenant's
payments were greater than the actual amount, then such
overpayment shall be credited by Landlord to Tenant's Share of
Expenses due under this Section 4(c)(3). If such overpayment
is determined after termination of this Lease, then such
overpayment shall be paid by Landlord to Tenant within thirty
(30) days after the annual expense statement is completed with
deduction of any remaining sums owed by Tenant to Landlord.
4) RENT WITHOUT OFFSET AND LATE CHARGE. As used herein, "Rent"
shall mean all monetary sums due from Tenant to Landlord. All
Base Monthly Rent shall be paid by Tenant to Landlord without
prior notice or demand in advance on the first day of every
calendar month, at the address shown in Section 1, or such
other place as Landlord may designate in writing from time to
time. Whether or not so designated, all other sums due from
Tenant under this Lease shall constitute Additional Rent,
payable without prior notice or demand when specified in this
Lease, but if not specified, then within thirty (30) days of
demand, during which time the parties will work to resolve any
good faith disagreements on the amount due. All Rent shall be
paid without any deduction or offset whatsoever except as
otherwise specifically provided herein. All Rent shall be paid
in lawful currency of the United States of America. Proration
of Rent due for any partial month shall be calculated by
dividing the number of days in the month for which Rent is due
by the actual number of days in that month and multiplying by
the applicable monthly rate. Tenant acknowledges that late
payment by Tenant to Landlord of any Rent, Additional Rent or
other sums due under this Lease will cause Landlord to incur
costs not contemplated by this Lease, the exact amount of such
cost being extremely difficult and impracticable to ascertain.
Such costs include, without limitation, processing and
accounting charges and late charges that may be imposed on
Landlord by the terms of any encumbrance or note secured by
the Premises. Therefore, if any Rent or other sum due from
Tenant is not received within five (5) business days of the
date due, Tenant shall pay to Landlord an additional sum equal
to 5% of such overdue payment. Landlord and Tenant hereby
agree that such late charge represents a fair and reasonable
estimate of the costs that Landlord will incur by reason of
any such late payment and that the late charge is in addition
to any and all remedies available to the Landlord and that the
assessment and/or collection of the late charge shall not be
deemed a waiver of any other default. Additionally, all such
delinquent Rent or other sums, plus this late charge, which
are more than thirty (30) days past due, shall bear interest
at the rate of 15 percent per annum. If the interest rate
specified in this Lease is higher than the rate permitted by
law, the interest rate is hereby decreased to the maximum
legal interest rate permitted by law. Any payments of any kind
returned for insufficient funds will be subject to an
additional handling charge of $25.00, and thereafter, Landlord
may require Tenant to pay all future payments of Rent or other
sums due by money order or cashier's check.
5) REVIEW AND AUDIT RIGHT. Tenant shall have the right (no more
frequently than once per calendar year) to review Landlord's
books and records pertaining to Expenses for the prior year.
Tenant may cause an audit of Landlord's books and records
which will be conducted
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by an independent certified public accountant designated by
Tenant. If any such audit discloses Tenant overpaid its share
of Expenses for any calendar year, Landlord shall pay Tenant
the amount of the overpayment within thirty (30) days after
the results of the audit have been disclosed to both parties.
If any such audit discloses that Tenant underpaid its share of
Expenses during any calendar year, Tenant shall pay Landlord
the amount of the underpayment within thirty (30) days after
the results of the audit have been disclosed to both parties.
All costs and expenses of the audit shall be paid by Tenant;
however, if the audit shows Landlord overstated Tenant's share
of expenses for the subject calendar year by more than five
percent (5%) of the amount actually payable by Tenant,
Landlord shall reimburse Tenant for the reasonable costs and
expenses of the audit within thirty (30) days of receipt of
Tenant's notice of the amount due. Any review or audit of
Landlord's books and records pertaining to Expenses shall
occur at the office of the Building manager or at such other
location in the Seattle Metropolitan Area as Landlord or its
Building manager may designate and shall occur during the
normal business hours of the Building manager, unless
otherwise agreed by Landlord and Tenant. The results of the
audit and any information obtained by Tenant from the audit or
Tenant's review of Landlord's books and records shall be kept
confidential and not disclosed to any other person or entity,
including any other tenant of the Building or the Project,
except as required by court order or applicable law.
5. PREPAID RENT. Tenant shall, in addition to the payment of the first
month's Rent as set forth in Section 4(a), pay to Landlord the prepaid
Rent set forth in Section 1(n), and if Tenant is not in default of any
provisions of this Lease, such prepaid Rent shall be applied toward
Base Monthly Rent for the months set forth in Section 1(n). Landlord's
obligations with respect to the prepaid Rent are those of a debtor and
not of a trustee, and Landlord can commingle the prepaid Rent with
Landlord's general funds. Landlord shall not be required to pay Tenant
interest on the prepaid Rent. Landlord shall be entitled to immediately
endorse and cash Tenant's prepaid Rent; however, such endorsement and
cashing shall not constitute Landlord's acceptance of this Lease. In
the event Landlord does not accept this Lease, Landlord shall return
said prepaid Rent.
6. DEPOSIT. Upon execution of this Lease, Tenant shall deposit a security
deposit as set forth in Section 1(l) with Landlord in the form of an
irrevocable, unconditional letter of credit from an acceptable
financial institution. The form of the Letter of Credit and the terms
under which it shall be extinguished is provided in Exhibit H, Form of
Letter of Credit. If Tenant is in default, Landlord can use the Letter
of Credit or any portion of it to cure the default or to compensate
Landlord for any damages sustained by Landlord resulting from Tenant's
default. Upon demand, Tenant shall immediately restore the Letter of
Credit to its full amount. In no event will Tenant have the right to
apply any part of the security deposit to any Rent or other sums due
under this Lease. If Tenant is not in default at the expiration or
termination of this Lease, Landlord shall return the Letter of Credit
to Tenant. Landlord shall not be required to pay Tenant interest on the
security deposit.
7. USE OF PREMISES AND PROJECT FACILITIES. Tenant shall use the Premises
solely for the purposes set forth in Section 1 and for no other purpose
without obtaining the prior written consent of Landlord, which consent
shall not be unreasonably withheld, delayed or conditioned. Tenant
acknowledges that neither Landlord nor any agent of Landlord has made
any representation or warranty with respect to the Premises or with
respect to the suitability of the Premises or the Project for the
conduct of Tenant's business, nor has Landlord agreed to undertake any
modification, alteration or improvement to the Premises or the Project,
except as provided in writing in this Lease. Tenant acknowledges that
Landlord may from time to time, at its sole discretion, make such
modifications, alterations, deletions or improvements to the Project as
Landlord may deem necessary or desirable, without compensation or notice
to Tenant as long as such modifications, alterations, deletions or
improvements do not materially alter Tenant's use of its Premises.
Tenant shall promptly comply with all laws, ordinances, orders and
regulations affecting the Premises and the Project, including, without
limitation, any rules and regulations that may be attached to this Lease
and to any reasonable modifications to these rules and regulations as
Landlord may adopt from time to time. Tenant acknowledges that, except
for Landlord's obligations pursuant to Section 13, Tenant is solely
responsible for ensuring that the Premises comply with any and all
governmental regulations applicable to Tenant's conduct of business on
the Premises, and that Tenant is solely responsible for any alterations
or improvements that may be required by such regulations, now existing
or hereafter adopted. Tenant shall not do or permit anything to be done
in or about the Premises or bring or keep anything in the Premises that
will in any way increase the premiums paid by Landlord on its insurance
related to the Project or which will in any way increase the premiums
for fire or casualty insurance carried by other tenants in the Project.
Tenant will not perform any act or carry on any practices that may
injure the Premises or the Project; that may be a nuisance or menace to
other tenants in the Project; or that shall in any way interfere with
the quiet enjoyment of such other tenants. Tenant shall not use the
Premises for sleeping, washing clothes, cooking or the preparation,
manufacture or mixing of anything that might emit any objectionable
odor, noises, vibrations or lights onto such other tenants. If sound
insulation is required to muffle noise produced by Tenant on the
Premises, Tenant at its own cost shall provide all necessary insulation.
Tenant shall not do anything on the premises which will overload any
existing parking or service to the Premises. Pets and/or animals of any
type shall not be kept on the Premises.
8
8. HAZARDOUS SUBSTANCES; DISRUPTIVE ACTIVITIES
a. HAZARDOUS SUBSTANCES.
(1) PRESENCE AND USE OF HAZARDOUS SUBSTANCES. Tenant shall not,
without Landlord's prior written consent, keep on or around
the Premises, Common Areas or Building, for use, disposal,
treatment, generation, storage or sale, any substances
designated as, or containing components designated as
hazardous, dangerous, toxic or harmful, and/or is subject to
regulation, statute or ordinance (collectively referred to as
"Hazardous Substances"). Notwithstanding the preceding
sentence, Tenant may keep, use, store and dispose of, in, on
and from the Premises, materials and supplies otherwise
constituting Hazardous Substances which are customarily used
for the purposes set forth in Section 1, provided such
materials and supplies are used, handled and disposed of in
accordance with all applicable governmental rules,
regulations, laws and requirements, and in accordance with
prudent business practices. With respect to any such Hazardous
Substance, Tenant shall:
(i) Comply promptly, timely, and completely with all
governmental requirements for reporting, keeping, and
submitting manifests, and obtaining and keeping current
identification numbers;
(ii) Submit to Landlord true and correct copies of all
reports, manifests, and identification numbers at the
same time as they are required to be and/or are
submitted to the appropriate governmental authorities;
(iii) Within five (5) days of Landlord's request, submit
written reports to Landlord regarding Tenant's use,
storage, treatment, transportation, generation,
disposal or sale of Hazardous Substances and provide
evidence satisfactory to Landlord of Tenant's
compliance with the applicable government regulations;
(iv) Allow Landlord or Landlord's agent or representative to
come on the Premises at reasonable times, with at least
twenty four (24) hours prior notice to Tenant (except
in an emergency, when no notice is required), to check
Tenant's compliance with all applicable governmental
regulations regarding Hazardous Substances;
(v) Comply with minimum levels, standards or other
performance standards or requirements which may be set
forth or established for certain Hazardous Substances
(if minimum standards or levels are applicable to
Hazardous Substances present on the Premises, such
levels or standards shall be established by an on-site
inspection by the appropriate governmental authorities
and shall be set forth in an addendum to this Lease);
and
(vi) Comply with all applicable governmental rules,
regulations and requirements regarding the proper and
lawful use, sale, transportation, generation,
treatment, and disposal of Hazardous Substances.
(2) If Tenant violates any provisions of this section, then any
and all costs incurred by Landlord and associated with
Landlord's monitoring of Tenant's compliance with this Section
8, including Landlord's attorneys' fees and costs, shall be
Additional Rent and shall be due and payable to Landlord
immediately upon demand by Landlord.
b. CLEANUP COSTS, DEFAULT AND INDEMNIFICATION.
(1) Tenant shall be fully and completely liable to Landlord for
any and all cleanup costs, and any and all other charges,
fees, penalties (civil and criminal) imposed by any
governmental authority with respect to Tenant's use, disposal,
transportation, generation and/or sale of Hazardous
Substances, in or about the Premises, Common Areas, or
Building.
(2) Tenant shall indemnify, defend and save Landlord and
Landlord's lender, if any, harmless from any and all of the
costs, fees, penalties and charges assessed against or imposed
upon Landlord (as well as Landlord's and Landlord's lender's
attorneys' fees and costs) as a result of Tenant's use,
disposal, transportation, generation and/or sale of Hazardous
Substances.
(3) Upon Tenant's default under this Section 8, in addition to the
rights and remedies set forth elsewhere in this Lease,
Landlord shall be entitled to the following rights and
remedies:
(i) At Landlord's option, to terminate this Lease immediately;
and/or
9
(ii) To recover any and all damages associated with the
default, including, but not limited to cleanup costs
and charges, civil and criminal penalties and fees,
loss of business and sales by Landlord and other
tenants of the Building, any and all damages and claims
asserted by third parties and Landlord's attorneys'
fees and costs.
c. DISPOSAL OF WASTE
(1) REFUSE DISPOSAL. Tenant shall not keep any trash, garbage,
waste or other refuse on the Premises except in sanitary
containers and shall regularly and frequently remove same from
the Premises. Tenant shall keep all incinerators, containers
or other equipment used for storage or disposal of such
materials in a clean and sanitary condition.
(2) SEWAGE DISPOSAL. Tenant shall properly dispose of all sanitary
sewage and shall not use the sewage disposal system (a) for
the disposal of anything except sanitary sewage or (b) in
excess of the lesser amount (i) reasonably contemplated by the
uses permitted under this Lease or (ii) permitted by any
governmental entity. Tenant shall keep the sewage disposal
system free of all obstructions and in good operating
condition.
(3) DISPOSAL OF OTHER WASTE. Tenant shall properly dispose of all
other waste or other matter delivered to, stored upon, located
upon or within, used on, or removed from, the Premises in such
a manner that it does not, and will not, adversely affect the
(a) health or safety of persons, wherever located, whether on
the Premises or elsewhere (b) condition, use or enjoyment of
the Premises or any other real or personal property, wherever
located, whether on the Premises or anywhere else, or (c)
Premises or any of the improvements thereto or thereon
including buildings, foundations, pipes, utility lines,
landscaping or parking areas.
d. DISRUPTIVE ACTIVITIES. Tenant shall not:
(1) Produce, or permit to be produced, any intense glare, light or
heat except within an enclosed or screened area and then only
in such manner that the glare, light or heat shall not,
outside the Premises, be materially different from the light
or heat from other sources outside the Premises;
(2) Create, or permit to be created, any sound pressure level
which will interfere with the quiet enjoyment of any real
property outside the Premises, or which will create a nuisance
or violate any governmental law, rule, regulation or
requirement;
(3) Create, or permit to be created, any ground vibration that is
materially discernible outside the Premises;
(4) Transmit, receive or permit to be transmitted or received, any
electromagnetic, microwave or other radiation which is harmful
or hazardous to any person or property in, or about the
Project; or
(5) Create, or permit to be created, any noxious odor that is
disruptive to the business operations of any other tenant in
the Project.
9. SIGNAGE. All signing shall comply with rules and regulations set forth
by Landlord as may be modified from time to time. Tenant shall place no
window covering (e.g., shades, blinds, curtains, drapes, screens, or
tinting materials) other than those installed per Exhibit C, stickers,
signs, lettering, banners or advertising or display material on or near
exterior windows or doors if such materials are visible from the
exterior of the Premises, without Landlord's prior written consent.
Similarly, Tenant may not install any alarm boxes, foil protection tape
or other security equipment on the Premises without Landlord's prior
written consent. Any material violating this provision may be destroyed
by Landlord without compensation to Tenant. Allowed tenant signage is
provided for in Section 39, Tenant Signage, and Exhibit D, Signage
Criteria.
10. PERSONAL PROPERTY TAXES. Tenant shall pay before delinquency all taxes,
assessments, license fees and public charges levied, assessed or imposed
upon its business operations as well as upon all trade fixtures,
leasehold improvements, merchandise and other personal property in or
about the Premises.
11. BUILDING PARKING GARAGE.
▇. ▇▇▇▇▇ OF NON-EXCLUSIVE RIGHT. Landlord grants to Tenant and
Tenant's customers, suppliers, employees and invitees, a
non-exclusive license to use up to 1.9 parking spaces per 1,000
rentable square feet of the Premises. The estimated number of
parking spaces is set forth in Section 1(i). Landlord reserves the
right at any time to grant similar non-exclusive use to other
tenants, to promulgate rules and regulations relating to the use of
such parking areas, including reasonable restrictions on parking by
tenants and employees, to designate specific spaces for the use of
any tenant, to make changes in the parking layout from time to
time, and to establish reasonable time limits on parking.
10
b. LOCATION AND DESIGNATION. There shall exist within the Project a
garage and surface parking area (collectively the "Garage").
Landlord shall issue to Tenant parking stickers, tags, or access
cards (collectively referred to herein as a "Parking Permit") in a
number equal to the number of allocated parking spaces specified in
Section 11 (a) above. Each Parking Permit will authorize parking in
the Garage for one (1) car, twenty-four (24) hours a day, seven
days a week subject to modification as provided in this Section 11.
Landlord may designate, subject to change from time to time,
certain areas within the Garage within which each car may be
parked, and Tenant shall observe such designations. Tenant shall
observe all reasonable rules and regulations promulgated by
Landlord from time to time concerning the use of the Garage and
shall supply such additional information relating to persons
authorized to use the Garage as may be reasonably requested by
Landlord from time to time, including automobile license numbers
related to each Parking Permit. All such rules and regulations will
apply fairly and equally to all tenants.
c. OPERATIONS. Landlord may maintain, at it's sole discretion, within
the Garage or surface parking area, an area designated "visitor
parking" which may be made accessible on an exclusive basis to
visitors, clients and other invitees of Building tenants, including
Tenant, on an hourly charge basis. Upon the Commencement of this
Lease, the Garage shall be open to the general public during the
hours of 7:00 a.m. through 7:00 p.m., Monday through Friday,
excluding Building holidays. Landlord shall provide an access
system to the enclosed portion of the Garage for use by Tenant
during the periods the Garage is not open to the general public.
Hours during which the general public will have access to the
Garage shall be determined at Landlord's sole discretion and may be
adjusted from time to time.
d. CHARGES. The initial monthly charge for the Parking Permits to be
provided Tenant by Landlord shall be the amount set forth in
Section 1(i) of the Lease. Such rate shall be in effect upon the
Commencement Date of the Lease, subject to adjustment during each
year of the Lease term based upon comparable parking rates for
similar buildings in the Lower ▇▇▇▇▇ ▇▇▇▇ area (reflecting any
applicable federal, state and local taxes and levies), however, in
no event shall the rate set forth in Section 1(i) be increased for
Tenant's allocated Parking Permits during the initial twelve (12)
months of the Lease term and the rate during the second twelve (12)
months of the lease term shall not be increased more than 5% above
the rate set forth in Section 1(i). The above stated maximums on
the percentage increase in rates shall not apply to any of Tenant's
parking spaces associated with Tenant's expansion per Sections 34
or 35 of this Lease. Landlord shall maintain a parking validation
system for use by tenant customers, clients and invitees. Tenant's
monthly parking charge for all Parking Permits and the charges for
all validated parking, if any, shall be billed to Tenant and shall
be due as Additional Rent within ten (10) days after such billing.
All hourly parking shall be priced comparably to the hourly parking
rates charged by similar office buildings located in the area
(reflecting any applicable federal, state and local taxes and
levies).
e. HOV. Parking stalls required by the City of Seattle for Vanpool,
carpool and other high occupancy vehicle or transportation
management programs established under a required transportation
management plan for the Building will be allocated to each tenant
based upon the proportionate share of Parking Permits assigned that
tenant for the Building, and any such HOV Parking Permits shall be
counted against Tenant's total Permit allocation pursuant to
Section 11(a).
12. UTILITIES/SERVICES
a. UTILITIES/SERVICES. Landlord shall cause public utilities to
furnish electricity, gas, water and sewer utilized in operating all
normal facilities serving the Premises; and to furnish Tenant
during Tenant's occupancy of the Premises:
(1) Hot and cold water at those points of supply provided for
general use of Tenant in the Building; central heating and air
conditioning in season and at such temperatures and in such
amounts as are reasonably considered by Landlord to be
standard for comparable buildings in the Lower ▇▇▇▇▇ ▇▇▇▇
area. Tenant shall set operating hours for the Building,
subject to the reasonable approval of Landlord. For purposes
of this Lease in determining the estimated amount in Section
1(k), normal business hours for the Building, Common Areas and
the Garage of the Project are estimated to be 7:00 AM to 6:00
PM Monday through Friday and 7:00 AM to 1:00 PM Saturdays,
excluding holidays. Routine maintenance, painting and electric
lighting service for all public areas and special service
areas of the Building shall be provided as reasonably
requested by Tenant. During other than normal business hours
for the Building such services shall be provided upon request
of Tenant, and if reasonably available, Tenant shall bear the
entire cost thereof as Additional Rent. Tenant shall have
access to the Premises twenty four (24) hours per day, seven
(7) days per week, including holidays and weekends, subject to
Building security systems and procedures.
(2) Janitorial service on a five (5) day week basis in accordance
with the janitorial specifications attached hereto as Exhibit
E (which standards shall be subject to reasonable modification
by Landlord from time to time to reflect changes in the
11
industry). If Tenant requires janitorial service in excess of
such established standards, and Landlord provides such
service, Tenant shall pay any additional cost attributable
thereto as Additional Rent.
(3) Electrical facilities to provide sufficient capacity to serve
the electrical power needs of Landlord's equipment servicing
the Building and including up to 3.0 ▇▇▇▇▇ per square foot of
Tenant's Premises for convenience outlet loads and Tenant's
miscellaneous equipment loads. In the event Tenant requires
electrical service (e.g. the supply of power in a specific
voltage or amperage configuration) other than what is provided
by the Building to serve Tenant's equipment, and should the
installation of such equipment require additional air
conditioning capacity above that provided by the Building's
standard system, then the cost of the installation and
operation of the additional electrical service and air
conditioning equipment, if any, shall be paid by Tenant.
In the event Tenant desires any of the aforementioned services
in amounts in excess of those required to be provided by
Landlord pursuant to the terms of Section 12(a) above, Tenant
shall pay Landlord as Additional Rent hereunder the cost of
providing such additional quantities.
b. INTERRUPTION. Failure by Landlord to any extent to furnish any
service, or any cessation thereof, shall not render Landlord liable
in any respect for damages to either person or property, nor be
construed as an eviction of Tenant, nor work an abatement of rent,
nor relieve Tenant from fulfillment of any covenant or agreement
hereof. Notwithstanding the foregoing, however, if an interruption
of services for causes within Landlord's reasonable control
materially impairs Tenant's ability to effectively use the Premises
and if such interruption continues for more than three (3)
consecutive days or ten (10) days out of twenty (20) day period,
Tenant shall thereafter be entitled to ▇▇▇▇▇ rent as to that
portion of the Premises which cannot be used, until the service is
restored. Should any of the equipment or machinery utilized in
supplying the services described herein break down, or for any
cause cease to function properly, Landlord shall use reasonable
diligence to repair same promptly, but Tenant shall have no right
to terminate this Lease, and shall have no claim for rebate or
abatement of rent or damages, on account of any interruption in
service occasioned thereby or resulting therefrom. If any
interruption of services resulting from causes within the
reasonable control of Landlord continues for thirty (30)
consecutive days or more, Tenant may terminate this Lease by
written notice given to Landlord at any time prior to the date on
which the services are restored or the interference ceases to the
extent Tenant can reasonably use and occupy the Premises for its
intended purposes. With respect to an interruption of services
which results from causes outside the reasonable control of
Landlord, if such interruption of services continues for more than
thirty (30) consecutive days, unless the interruption is caused by
Tenant, or by repairs or alterations requested by Tenant or
necessary because of acts or omissions of Tenant (or its agents or
employees), the Base Rent and Additional Rent shall equitably ▇▇▇▇▇
in proportion to the extent of the interference with Tenant's use
of the Premises, commencing on the last day of such thirty (30) day
period until the services are restored or the interference ceases
to the extent Tenant can again reasonably use and occupy the
Premises for its intended purposes, and if such interruption of
services continues for more than one hundred eighty (180)
consecutive days, Tenant may terminate this Lease by written notice
given to Landlord at any time prior to the date on which the
services are restored or the interference ceases to the extent
Tenant can again reasonably use and occupy the Premises for its
intended purposes.
13. MAINTENANCE. Landlord shall maintain, in good condition, the structural
parts of the Premises, which shall include only the foundations, bearing
and exterior walls (excluding glass), subflooring and roof (excluding
skylights), the unexposed electrical, plumbing and sewerage systems,
including those portions of the systems lying outside the Premises,
gutters and downspouts on the Building and the heating, ventilating and
air conditioning system servicing the Premises; provided, however, the
cost of all such maintenance shall be considered "Expenses" for purposes
of Section 4(c). Except as provided above, Tenant shall maintain and
repair the Premises in good condition, including, without limitation,
maintaining and repairing all walls, storefronts, floors, ceilings,
interior and exterior doors, exterior and interior windows and fixtures
and interior plumbing as well as damage caused by Tenant, its agents,
employees or invitees. Upon expiration or termination of this Lease,
Tenant shall surrender the Premises to Landlord in the same condition as
existed at the commencement of the term, except for reasonable wear and
tear or damage caused by fire or other casualty for which Landlord has
received all funds necessary for restoration of the Premises from
insurance proceeds.
14. ALTERATIONS. Tenant shall not make any alterations to the Premises other
than Tenant's initial Tenant Improvements per Exhibit F, or to the
Project, including any changes to the existing landscaping, without
Landlord's prior written consent, which shall not be unreasonably
withheld, delayed or conditioned for alterations not affecting
structural elements or materially altering Building systems. If Landlord
gives its consent to such alterations, Landlord may post notices in
accordance with the laws of the state in which the premises are located.
Any alterations made shall remain on and be surrendered with the
Premises upon expiration or termination of this Lease, except that
Landlord may, on or before expiration of the term, elect to require
Tenant to remove any alterations which Tenant may have made to the
Premises. At the time Tenant submits plans for alterations to Landlord
for Landlord's approval, Tenant may request that Landlord elect whether
such alterations shall be removed at the termination of this Lease, and
if so requested, Landlord shall make such election simultaneous with its
approval of the alterations. If Landlord elects to require
12
removal of the alterations, then at its own cost Tenant shall restore
the Premises to the condition designated by Landlord in its election,
before the last day of the term or within 30 days after notice of its
election is given, whichever is later.
Should Landlord consent in writing to Tenant's alteration of the
Premises, Tenant shall contract with a contractor reasonably approved by
Landlord for the construction of such alterations, shall secure all
appropriate governmental approvals and permits, and shall complete such
alterations with due diligence in compliance with plans and
specifications reasonably approved by Landlord. All work performed shall
be done in workmanlike manner and with material (when not specifically
described in the plans and specifications) of the quality and appearance
customary in the trade for first-class construction of the type in which
the Premises are located. All such construction shall be performed in a
manner which will not interfere with the quiet enjoyment of other
tenants of the Project. Tenant shall pay all costs for such construction
and shall keep the Premises and the Project free and clear of all
mechanics' liens which may result from construction by Tenant. If
requested by Landlord, Tenant shall post a bond or other security
reasonably satisfactory to Landlord to protect against liens. Tenant
will pay directly or reimburse Landlord for any reasonable cost incurred
by Landlord in reviewing plans and/or monitoring construction.
15. RELEASE AND INDEMNITY.
a. INDEMNITY. Tenant shall indemnify, defend (using legal counsel
reasonably acceptable to Landlord) and save Landlord and its
property manager harmless from all claims, suits, losses, damages,
fines, penalties, liabilities and expenses (including Landlord's
personnel and overhead costs and attorneys fees and other costs
incurred in connection with claims, regardless of whether such
claims involve litigation, but excluding consequential damages such
as lost profits) resulting from any actual or alleged injury
(including death) of any person or from any actual or alleged loss
of or damage to, any property to the extent caused by (i) Tenant's
occupation, use or improvement of the Premises, or that of its
employees, agents or contractors, or (ii) any act or omission of
Tenant or any subtenant, licensee, assignee or concessionaire of
Tenant, or of any officer, agent, employee, guest or invitee of
Tenant, or of any such entity in or about the Premises. Tenant
agrees that the foregoing indemnity specifically covers actions
brought by its own employees. This indemnity with respect to acts
or omissions during the term of this Lease shall survive
termination or expiration of this Lease. The foregoing indemnity is
specifically and expressly intended to, constitute a waiver of
Tenant's immunity under Washington's Industrial Insurance Act, RCW
Title 51, to the extent necessary to provide Landlord with a full
and complete indemnity from claims made by Tenant and its
employees, to the extent provided herein. Tenant shall promptly
notify Landlord of casualties or accidents occurring in or about
the Premises. LANDLORD AND TENANT ACKNOWLEDGE THAT THE
INDEMNIFICATION PROVISIONS OF SECTION 8.b AND THIS SECTION 15 WERE
SPECIFICALLY NEGOTIATED AND AGREED UPON BY THEM.
b. LANDLORD INDEMNITY. Except as otherwise provided in this Section 15
or Section 16, Landlord shall indemnify, defend (using legal
counsel reasonably acceptable to Tenant) and save Tenant harmless
from all claims, suits, losses, fines, penalties, liabilities and
expenses (including Tenant's personnel and overhead costs and
attorneys' fees and other costs incurred in connection with claims,
regardless of whether such claims involve litigation, but excluding
consequential damages such as lost profits) resulting from any
actual or alleged injury (including death) of any person or from
any actual or alleged loss of or damage to, any property to the
extent caused by the intentional misconduct or negligence of
Landlord or of any employee or agent of Landlord in the Common
Areas. Landlord agrees that the foregoing indemnity specifically
covers actions brought by its own employees. This indemnity with
respect to actions or omissions during the term of this Lease shall
survive termination or expiration of this Lease. The foregoing
indemnity is specifically and expressly intended to constitute a
waiver of Landlord's immunity under Washington's Industrial
Insurance Act, RCW Title 51, to the extent necessary to provide
Tenant with a full and complete indemnity from claims made by
Landlord and its employees to the extent of their negligence.
LANDLORD AND TENANT ACKNOWLEDGE THAT THE INDEMNIFICATION PROVISIONS
OF SECTION 15 WERE SPECIFICALLY NEGOTIATED AND AGREED UPON BY THEM.
c. RELEASE. Tenant hereby fully and completely waives and releases all
claims against Landlord for any losses or other damages sustained
by Tenant or any person claiming through Tenant resulting from any
accident or occurrence in or upon the Premises, including but not
limited to: any defect in or failure of Project equipment; any
failure to make repairs; any defect, failure, surge in, or
interruption of Project facilities or services; any defect in or
failure of Common Areas; broken glass; water leakage; the collapse
of any Building component; or any act, omission or negligence of
co-tenants, licensees or any other persons or occupants of the
Building, provided only that the release contained in this Section
15.b shall not apply to claims for actual damage to persons or
property (excluding consequential damages such as lost profits)
resulting directly from Landlord's breach of its express
obligations under this Lease which Landlord has not cured within a
reasonable time after receipt of written notice of such breach from
Tenant or any of Landlord's negligent or willfull misconduct.
d. LIMITATION ON INDEMNITY. In compliance with RCW 4.24.115 as in
effect on the date of this Lease, all provisions of this Lease
pursuant to which Landlord or Tenant (the "Indemnitor") agrees to
indemnify the other (the "Indemnitee") against liability for
damages arising out of bodily injury to Persons or damage to
property relative to the construction, alteration, repair, addition
to, subtraction
13
from, improvement to, or maintenance of, any building, road, or
other structure, project, development, or improvement attached to
real estate, including the Premises, (i) shall not apply to
damages caused by or resulting from the sole negligence of the
Indemnitee, its agents or employees, and (ii) to the extent caused
by or resulting from the concurrent negligence of (a) the
Indemnitee or the Indemnitee's agents or employees, and (b) the
Indemnitor or the Indemnitor's agents or employees, shall apply
only to the extent of the Indemnitor's negligence; PROVIDED,
HOWEVER, the limitations on indemnity set forth in this Section
shall automatically and without further act by either Landlord or
Tenant be deemed amended so as to remove any of the restrictions
contained in this Section no longer required by then applicable
law.
e. DEFINITIONS. As used in any Section establishing indemnity or
release of Landlord, "Landlord" shall include Landlord, its
partners, officers, agents, employees and contractors, and
"Tenant" shall include Tenant and any person or entity claiming
through Tenant.
16. INSURANCE. Tenant, at its cost, shall maintain commercial general
liability and property damage insurance and products liability
insurance with a single combined liability limit of $2,000,000,
insuring against all liability of Tenant and its representatives,
employees, invitees, and agents arising out of or in connection with
Tenant's use or occupancy of the Premises. Landlord may, from time to
time, require modifications of the insurance coverages hereunder to
reflect insurance coverages commonly provided in similar projects in
the area. Commercial general liability insurance, products liability
insurance and property damage insurance shall insure performance by
Tenant of the indemnity provisions of Section 15. Landlord and its
management contractor shall be named as additional insured and the
policy shall contain cross-liability endorsements. On all its personal
property, at its cost, Tenant shall maintain a policy of standard fire
and extended coverage insurance with vandalism and malicious mischief
endorsements and "all risk" coverage on all Tenant's improvements and
alterations, including without limitation, all items of Tenant
responsibility described in Section 13 in or about the Premises, to the
extent of at least 90% of their full replacement value. The proceeds
from any such policy shall be used by Tenant for the replacement of
personal property and the restoration of Tenant's improvements or
alterations. All insurance required to be provided by Tenant under this
Lease: (a) shall be issued by Insurance companies authorized to do
business in the state in which the Premises are located with a
financial rating of at least an A IX status as rated in the most recent
edition of Best's Insurance Reports; (b) shall be issued as a primary
policy; shall be on an occurrence basis; and (d) shall contain an
endorsement requiring at least 30 days prior written notice of
cancellation to Landlord and Landlord's lender, before cancellation or
change in coverage, scope or amount of any policy. Tenant shall deliver
a certificate or copy of such policy together with evidence of payment
of all current premiums to Landlord within 30 days of execution of this
Lease. If Tenant fails at any time to maintain the insurance required
by this Lease, and fails to cure such default within five (5) business
days of written notice from Landlord then, in addition to all other
remedies available under this Lease and applicable law, Landlord may
purchase such insurance on Tenant's behalf and the cost of such
insurance shall be Additional Rent due within ten (10) days of written
invoice from Landlord to Tenant.
Landlord and Tenant release and relieve the other, and waive their
entire right of recovery for loss or damage to property located within
or constituting a part or all of the Building or the Project to the
extent that the loss or damage is covered by (a) the injured party's
insurance, or (b) the insurance the injured party is required to carry
under this Article 16, whichever is greater. This waiver applies
whether or not the loss is due to the negligent acts or omissions of
Landlord or Tenant, or their respective officers, directors, employees,
agents, contractors, or invitees. Each of Landlord and Tenant shall
have their respective property insurers endorse the applicable
insurance policies to reflect the foregoing waiver of claims, provided
however, that the endorsement shall not be required if the applicable
policy of insurance permits the named insured to waive rights of
subrogation on a blanket basis, in which case the blanket waiver shall
be acceptable.
17. DESTRUCTION. If during the term, more than 25% of the Premises or more
than 10% of the Building are destroyed from any cause, or rendered
inaccessible or unusable from any cause, Landlord may, in its sole
discretion, terminate this Lease by delivery of notice to Tenant within
30 days of such event without compensation to Tenant. If in Landlord's
estimation, the Premises cannot be restored within 120 days following
such destruction, the Landlord shall notify Tenant and Tenant may
terminate this Lease by delivery of notice to Landlord within 30 days
of receipt of Landlord's notice. If neither Landlord nor Tenant
terminates this Lease as provided above, then Landlord shall commence
to restore the Premises in compliance with then existing laws and shall
complete such restoration with due diligence. In such event, this Lease
shall remain in full force and effect, but there shall be an abatement
of Base Monthly Rent and Tenant's Share of Expenses between the date of
destruction and the date of completion of restoration, based on the
extent to which destruction interferes with Tenant's use of the
Premises.
18. CONDEMNATION.
a. TAKING. If all of the Premises are taken by Eminent Domain, this
Lease shall terminate as of the date Tenant is required to vacate
the Premises and all Base and Additional Rent shall be paid to
that date. The term "Eminent Domain" shall include the taking or
damaging of property by, through or under any governmental or
statutory authority, and any purchase or acquisition in lieu
thereof, whether the damaging or taking is by government or any
other person. If, in the reasonable judgment of Landlord, a taking
of any part of the Premises by Eminent Domain renders the
remainder thereof unusable for the business of Tenant (or the cost
of restoration of the Premises is not commercially
14
reasonable), the Lease may, at the option of either party, be
terminated by written notice given to the other party not more
than thirty (30) days after Landlord gives Tenant written notice
of the taking, and such termination shall be effective as of the
date when Tenant is required to vacate the portion of the Premises
so taken. If this Lease is so terminated, all Base and Additional
Rent shall be paid to the date of termination. Whenever any
portion of the Premises is taken by Eminent Domain and this Lease
is not terminated, Landlord shall at its expense proceed with all
reasonable dispatch to restore, to the extent of available
proceeds issued from the taking governmental authority and to the
extent it is reasonably prudent to do so, the remainder of the
Premises to the condition they were in immediately prior to such
taking, and Tenant shall at its expense proceed with all
reasonable dispatch to restore its personal property and all
improvements made by it to the Premises to the same condition they
were in immediately prior to such taking. The Base and Additional
Rent payable hereunder shall be reduced from the date Tenant is
required to partially vacate the Premises in the same proportion
that the Rentable Area taken bears to the total Rentable Area of
the Premises prior to taking.
b. AWARD. Landlord reserves all right to the entire damage award or
payment for any taking by Eminent Domain, and Tenant waives all
claim whatsoever against Landlord for damages for termination of
its leasehold interest in the Premises or for interference with
its business. Tenant hereby grants and assigns to Landlord any
right Tenant may now have or hereafter acquire to such damages and
agrees to execute and deliver such further instruments of
assignment as Landlord may from time to time request. Tenant
shall, however, have the right to claim from the condemning
authority and keep all compensation that may be recoverable by
Tenant on account of any loss incurred by Tenant in moving
Tenant's merchandise, furniture, trade fixtures and equipment,
provided, however, that Tenant may claim and keep such damages
only if they are awarded separately in the eminent domain
proceeding and not out of or as part of Landlord's damages.
19. ASSIGNMENT OR SUBLEASE. Tenant shall not assign or encumber its
interest in this Lease or the Premises or sublease all or any part of
the Premises or allow any other person or entity (except Tenant's
authorized representatives, employees, invitees, or guests) to occupy
or use all or any part of the Premises without first obtaining
Landlord's consent, which shall not be unreasonably withheld, delayed
or conditioned. In determining whether to consent to a proposed
assignment or subletting, Landlord may consider any commercially
reasonable basis for approving or disapproving the proposed subletting
or assignment, including without limitation any of the following: (i)
whether the clientele, personnel or foot traffic which will be
generated by the business of the proposed assignee or sublessee is
consistent in Landlord's reasonable opinion with the businesses of
other tenants of the Building or the Project, (ii) whether the proposed
assignee has a net worth and financial strength and credit record
reasonably satisfactory to Landlord, and (iii) whether the use of the
Premises by the proposed assignee or sublessee will violate or create
any potential violation of any laws or a breach or violation of any
other lease or agreement by which Landlord is bound. No assignment or
sublease shall release Tenant from the obligation to perform all
obligations under this Lease unless otherwise agreed in writing by
Landlord. Any assignment, encumbrance or sublease without Landlord's
written consent shall be voidable and at Landlord's election, shall
constitute a default. If Tenant is a partnership, a withdrawal or
change, voluntary, involuntary or by operation of law of any partner,
or the dissolution of the partnership, shall be deemed a voluntary
assignment. If Tenant consists of more than one person, a purported
assignment, voluntary or involuntary or by operation of law from one
person to the other shall be deemed a voluntary assignment. If Tenant
is a corporation, any dissolution, merger, consolidation or other
reorganization of Tenant, or sale or other transfer of a controlling
percentage of the capital stock of Tenant, or the sale of at least 25%
of the value of the assets of Tenant shall be deemed a voluntary
assignment. The phrase "controlling percentage" means ownership of and
right to vote stock possessing at least 25% of the total combined
voting power of all classes of Tenant's capital stock issued,
outstanding and entitled to vote for election of directors. The two
proceeding sentences shall not apply to corporations the stock of which
is traded through an exchange or over the counter. One half (1/2) of
any rent received by Tenant from its subtenants or assignees in excess
of the Rent payable by Tenant to Landlord under this Lease and of any
sums to be paid by an assignee to Tenant in which is attributable to
the leasehold interest, prepayment of rent or "buying down" rent (less
the costs and expenses incurred by Tenant in connection with any such
sublease or assignment) shall be paid to Landlord. If at the time of
the proposed assignment or subletting, the Project is more than 15%
vacant, then Tenant shall not charge less on the proposed assignment or
subletting than 95% of the rents being charged by Landlord for similar
spaces in the Project. For purposes of this Section 19, the term
"similar spaces in the Project" shall mean similar as to (i) location
of the floors(s) within the Project, (ii) views, (iii) types of tenant
improvements and (iv) use. If Tenant requests Landlord to consent to a
proposed assignment or subletting, Tenant shall pay to Landlord,
whether or not consent is ultimately given, $100 or Landlord's
reasonable out of pocket attorney's fees incurred in connection with
such request, whichever is greater.
Notwithstanding any other provision of this Section 19, Tenant may
sublet all or part of the Premises to its parent corporation, if any;
any subsidiary corporation of Tenant or its parent corporation; or any
corporation or other entity owned or controlled by Tenant, its parent
corporation of any subsidiary of Tenant (each an "Affiliate").
Furthermore, Tenant may assign this Lease to any Affiliates, or to any
entity resulting from a merger or consolidation with Tenant, provided
the assignee's financial condition (i.e., net worth and liquidity) is
comparable to that of Tenant immediately preceding the date of the
assignment.
No interest of Tenant in this Lease shall be assignable by involuntary
assignment through operation of law (including without limitation the
transfer of this Lease by testacy or intestacy). Each of the following
acts shall be considered an involuntary assignment: (a) if Tenant is or
becomes bankrupt or insolvent, makes an
15
assignment for the benefit of creditors, or institutes proceedings
under the Bankruptcy Act in which Tenant is the bankrupt party; or if
Tenant is a partnership or consists of more than one person or entity,
if any partner of the partnership or other person or entity is or
becomes bankrupt or insolvent, or makes an assignment for the benefit
of creditors; or (b) if a writ of attachment or execution is levied on
this Lease; or (c) if in any proceeding or action to which Tenant is a
party, a receiver is appointed with authority to take possession of the
Premises. An involuntary assignment shall constitute a default by
Tenant and Landlord shall have the right to elect to terminate this
Lease, in which case this Lease shall not be treated as an asset of
Tenant.
20. TENANT DEFAULT.
a. EVENTS OF DEFAULT. The occurrence of any of the following shall
constitute a default by Tenant: (i) a failure to pay Rent,
Additional Rent or other charge when due, provided that Landlord
shall not exercise any of its rights under this Section 20(a)(i)
until Landlord has given Tenant notice of such default and a cure
period of five (5) business days from receipt of such notice, and
Tenant has failed to pay such Rent, Additional Rent or other
charge within such cure period provided that, with respect to sums
due other than Rent and Additional Rent; (ii) abandonment and
vacation of the Premises (failure to occupy and operate the
Premises for ten consecutive days while in monetary default under
this Lease shall be conclusively deemed an abandonment and
vacation); (iii) failure to perform any other material provision
of this Lease, provided that Landlord shall not exercise any of
its rights under this Section 20(a)(iii) until Landlord has given
Tenant notice of such default and a cure period of thirty (30)
days from receipt of such notice, and Tenant has failed to cure
such default within such cure period, provided further that if
more than thirty (30) days are required to complete such
performance, the cure period shall not be deemed to have run so
long as Tenant commences to cure such default within the thirty
(30) day period and thereafter diligently pursues its completion;
or (iv) the making by Tenant of any general assignment or general
arrangement for the benefit of creditors or 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 and the same is dismissed within thirty (30)
days, or 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. The notices
required by this Section 20 are intended to satisfy any and all
notice requirements imposed by law on Landlord and are not in
addition to any such requirement.
b. LANDLORD'S REMEDIES. Landlord shall have the following remedies if
Tenant is in default. (These remedies are not exclusive; they are
cumulative and in addition to any remedies now or later allowed by
law): Landlord may terminate Tenant's right to possession of the
Premises at any time. No act by Landlord other than giving notice
to Tenant shall terminate this Lease. Acts of maintenance, efforts
to relet the Premises, or the appointment of a receiver on
Landlord's initiative to protect Landlord's interest under this
Lease shall not constitute a termination of Tenant's right to
possession. Upon termination of Tenant's right to possession,
Landlord has the right to recover from Tenant: (1) the worth of
the unpaid Rent that had been earned at the time of termination of
Tenant's right to possession; (2) the worth of the amount of the
unpaid Rent that would have been earned after the date of
termination of Tenant's right to possession; (3) any other amount,
including but not limited to, expenses incurred to relet the
Premises, court, attorney and collection costs, necessary to
compensate Landlord for all detriment caused by Tenant's default.
"The Worth," as used for Item (1) in this Paragraph 21 is to be
computed by allowing interest at the rate of 15 percent per annum.
If the interest rate specified in this Lease is higher than the
rate permitted by law, the interest rate is hereby decreased to
the maximum legal interest rate permitted by law. "The Worth" as
used for Item (2) in this Paragraph 21 is to be computed by
discounting the amount at the discount rate of the Federal Reserve
Bank of San Francisco at the time of termination of Tenant's right
of possession.
21. LANDLORD DEFAULT. Landlord shall not be in default unless Landlord
fails to perform its obligations within thirty (30) days after notice
by Tenant, specifying wherein Landlord has failed to perform; provided,
that if the nature of Landlord's obligation is such that more than
thirty (30) days are required for performance, Landlord shall not be in
default if Landlord commences performance within thirty (30) days of
Tenant's notice and thereafter diligently completes performance within
a reasonable time. Tenant's rights under this Lease shall be limited to
actions for damages and/or specific performance, and no default by
Landlord shall entitle Tenant to withhold or offset rent, terminate
this Lease or to engage in self-help remedies, provided only as
follows: If Landlord is in default under this Lease, and such default
materially adversely affects Tenant's ability to do business from the
Premises, and Landlord fails to cure such default within a commercially
reasonable time for emergencies and otherwise within thirty (30) days
after written notice from Tenant (provided that if such default cannot
be cured with 30 days, then if Landlord fails to commence to cure with
30 days and diligently pursue such cure to completion), then Tenant
shall, upon two (2) business days prior written notice to Landlord of
Tenant's intent to cure the default, be entitled to cure the default
and the reasonable cost of cure shall be reimbursed by Landlord to
Tenant with thirty (30) days of invoice therefor. If Landlord fails to
make such reimbursement, then any issues relating to such default and
cure shall, at either party's election, be resolved by a
single-arbitrator before the American Arbitration Association ("AAA")
under the Arbitration Rules of the AAA modified as follows: (i) the
total time from date of demand for arbitration to final award shall not
exceed 25 days; (ii) the arbitrator shall be chosen by the AAA without
submittal of lists and subject to challenge only for good cause shown;
(iii) all notices may be by telephone or other electronic communication
with later confirmation in writing; (iv) the time, date, and place of
the hearing shall be set by the arbitrator in his or her sole
discretion, provided that
16
there be at least 3 days prior notice of the hearing; (v) there shall
be no post-hearing briefs; (vi) there shall be no discovery except by
order of the arbitrator; and (vii) the arbitrator shall issue his or
her award within 7 days after the close of the hearing. The arbitration
shall be held in the county in which the Premises is located. The
decision of the arbitrator shall be final and binding on the parties
and judgment on the award rendered by the arbitrator may be entered in
any court of competent jurisdiction. The fees and expenses of the
arbitrator shall be paid half by Landlord and half by Tenant unless the
arbitrator decides otherwise in its discretion. The parties shall each
hold harmless and indemnify the arbitrator from any claims arising in
connection with the arbitration.
22. ENTRY ON PREMISES. Landlord and its authorized representatives shall
have the right to enter the Premises at all reasonable times, with
reasonable notice given to Tenant except in the case of an emergency,
for any of the following purposes: (a) to determine whether the
Premises are in good condition and whether Tenant is complying with its
obligations under this Lease; (b) to do any necessary maintenance and
to make any restoration to the Premises or the Project that Landlord
has the right or obligation to perform; (c) to post "for sale" signs at
any time during the term, to post "for rent" or "for lease" signs
during the last 90 days of the term, or during any period while Tenant
is in default; (d) to show the Premises to prospective brokers, agents,
buyers, tenants or persons interested in leasing or purchasing the
Premises, at any time during the term; or (e) to repair, maintain or
improve the Project and to erect scaffolding and protective barricades
around and about the Premises but not so as to prevent entry to the
Premises and to do any other act or thing necessary for the safety or
preservation of the Premises or the Project. Landlord shall not be
liable in any manner for any inconvenience, disturbance, loss of
business, nuisance or other damage arising out of Landlord's entry onto
the Premises as provided in this Section 22. Tenant shall not be
entitled to an abatement or reduction of Rent if Landlord exercises any
rights reserved in this Section 22. Landlord shall conduct his
activities on the Premises as provided herein in a commercially
reasonable manner so as to limit inconvenience, annoyance or
disturbance to Tenant to the maximum extent practicable and to execute
confidentiality agreements relating to entering areas Tenant keeps
secure for intellectual property reasons. For each of these purposes,
Landlord shall at all times have and retain a key with which to unlock
all the doors in, upon and about the Premises, excluding Tenant's
vaults and safes. Tenant shall not alter any lock or install a new or
additional lock or bolt on any door of the Premises without prior
written consent of Landlord. If Landlord gives its consent, Tenant
shall furnish Landlord with a key for any such lock.
23. SUBORDINATION. Without the necessity of any additional document being
executed by Tenant for the purpose of effecting a subordination, and at
the election of Landlord or any mortgagee or any beneficiary of a Deed
of Trust with a lien on the Project or any ground lessor with respect
to the Project, this Lease shall be subject and subordinate at all
times to (a) all ground leases or underlying leases which may now exist
or hereafter be executed affecting the Project, and (b) the lien of any
mortgage or deed of trust which may now exist or hereafter be executed
in any amount for which the Project, ground leases or underlying
leases, or Landlord's interest or estate in any of said items is
specified as security. This subordination shall be self operative,
provided that so long as Tenant is not in default hereunder beyond the
applicable Section 20 cure period, Tenant shall have continued
enjoyment of the Premises free from any disturbance or interruption by
reason of any foreclosure of Lender's deed of trust or mortgage. In the
event that any ground lease or underlying lease terminates for any
reason or any mortgage or Deed of Trust is foreclosed or a conveyance
in lieu of foreclosure is made for any reason, Tenant shall,
notwithstanding any subordination, attorn to and become the Tenant of
the successor in interest to Landlord, at the option of such successor
in interest. Tenant covenants and agrees to execute and deliver, upon
demand by Landlord and in the form requested by Landlord any additional
documents evidencing the priority or subordination of this Lease with
respect to any such ground lease or underlying leases or the lien of
any such mortgage or Deed of Trust, subject to the non-disturbance
provisions contained herein. If Tenant fails to deliver such
subordination document as required herein, then Tenant hereby
irrevocably appoints Landlord as attorney-in-fact of Tenant to execute,
deliver and record any such document in the name and on behalf of
Tenant.
Tenant, within ten days from notice from Landlord, shall execute and
deliver to Landlord, in recordable form, certificates stating that this
Lease is not in default, is unmodified and in full force and effect, or
in full force and effect as modified, and stating the modifications.
This certificate should also state the amount of current monthly Rent,
the dates to which Rent has been paid in advance, and the amount of any
security deposit and prepaid Rent. Failure to deliver this certificate
to Landlord within ten days shall be conclusive upon Tenant that this
Lease is in full force and effect and has not been modified except as
may be represented by Landlord.
24. NOTICE. Any notice, demand or request required hereunder shall be given
in writing to the party's facsimile number or address set forth in
Section 1 hereof by any of the following means: (a) personal service;
(b) electronic communication, whether by telex, telegram or facsimile;
(c) overnight courier; or (d) registered or certified, first class
mail, return receipt requested. Such addresses may be changed by notice
to the other parties given in the same manner as above provided. Any
notice, demand or request sent pursuant to either subsection (a) or (b)
hereof shall be deemed received upon such personal service or upon
dispatch by electronic means with electronic confirmation of receipt.
Any notice, demand or request sent pursuant to subsection (c) hereof
shall be deemed received on the business day immediately following
deposit with the overnight courier and, if sent pursuant to subsection
(d), shall be deemed received forty-eight (48) hours following deposit
in the U.S. mail.
25. WAIVER. No delay or omission in the exercise of any right or remedy by
Landlord shall impair such right or remedy or be construed as a waiver.
No act or conduct of Landlord, including without limitation, acceptance
of the keys to the Premises, shall constitute an acceptance of the
surrender of the Premises by Tenant before
17
the expiration of the term. Only written notice from Landlord to Tenant
shall constitute acceptance of the surrender of the Premises and
accomplish termination of the Lease. Landlord's consent to or approval
of any act by Tenant requiring Landlord's consent or approval shall not
be deemed to waive or render unnecessary Landlord's consent to or
approval of any subsequent act by Tenant. Any waiver by Landlord of any
default must be in writing and shall not be a waiver of any other
default concerning the same or any other provision of the Lease. TENANT
SPECIFICALLY ACKNOWLEDGES AND AGREES THAT, WHERE TENANT HAS RECEIVED A
NOTICE TO CURE DEFAULT (WHETHER RENT OR NON-RENT), NO ACCEPTANCE BY
LANDLORD OF RENT SHALL BE DEEMED A WAIVER OF SUCH NOTICE, AND,
INCLUDING BUT WITHOUT LIMITATION, NO ACCEPTANCE BY LANDLORD OF PARTIAL
RENT SHALL BE DEEMED TO WAIVE OR CURE ANY RENT DEFAULT. LANDLORD MAY,
IN ITS DISCRETION, AFTER RECEIPT OF PARTIAL PAYMENT OF RENT, REFUND
SAME AND CONTINUE ANY PENDING ACTION TO COLLECT THE FULL AMOUNT DUE, OR
MAY MODIFY ITS DEMAND TO THE UNPAID PORTION. IN EITHER EVENT THE
DEFAULT SHALL BE DEEMED UNCURED UNTIL THE FULL AMOUNT IS PAID IN GOOD
FUNDS.
26. SURRENDER OF PREMISES; HOLDING OVER. Upon expiration of the term,
Tenant shall surrender to Landlord the Premises and all Tenant
improvements and alterations in good condition, except for ordinary
wear and tear and alterations Tenant has the right or is obligated to
remove under the provisions of Section 14 herein. Tenant shall remove
all personal property including, without limitation, all data and phone
wires and other improvements which Landlord has required Tenant to
remove pursuant to Section 14 or Exhibit F of this Lease. Landlord can
elect to retain or dispose of in any manner Tenant's personal property
not removed from the Premises by Tenant prior to the expiration of the
term. Tenant waives all claims against Landlord for any damage to
Tenant resulting from Landlord's retention or disposition of Tenant's
personal property. Tenant shall be liable to Landlord for Landlord's
cost for storage, removal or disposal of Tenant's personal property.
If Tenant, with Landlord's consent, remains in possession of the
Premises after expiration or termination of the term, or after the date
in any notice given by Landlord to Tenant terminating this Lease, such
possession by Tenant shall be deemed to be a month-to-month tenancy
terminable as provided under Washington law, by either party. All
provisions of this Lease, except those pertaining to term and Rent,
shall apply to the month-to-month tenancy. During any holdover term,
Tenant shall pay Base Monthly Rent in an amount equal to 150% of Base
Monthly Rent for the last full calendar month during the regular term
plus 100% of Tenant's share of Expenses pursuant to Section 4(c)(3).
27. LIMITATION OF LANDLORD'S LIABILITY. In consideration of the benefits
accruing hereunder, Tenant agrees that, in the event of any actual or
alleged failure, breach or default of this Lease by Landlord,
Landlord's liability under this Lease shall be limited to, and Tenant
shall look only to Landlord's interest in the Project and the rents and
proceeds thereof.
28. MISCELLANEOUS PROVISIONS.
a. TIME OF ESSENCE. Time is of the essence of each provision
of this Lease.
b. AUTHORITY. If Tenant is a corporation, Tenant will deliver to
Landlord, contemporaneously with this Lease, an authorizing
resolution by Tenant's Board of Directors, authorizing the
person(s) executing this Lease to do so, or other evidence of such
person(s) authority as is reasonably satisfactory to Landlord.
c. SUCCESSORS. This Lease shall be binding on and inure to the
benefit of the parties and their successors, except as provided in
Section 19 herein.
d. LANDLORD'S CONSENT. Except as otherwise specifically provided
herein, any consent required by Landlord under this Lease must be
granted in writing and may be withheld by Landlord in its sole and
absolute discretion unless otherwise provided herein.
e. COMMISSIONS. Each party represents that it has not had dealings
with any real estate broker, finder or other person with respect
to this Lease in any manner, except for the broker identified in
Section 1(p), who shall be compensated by the party identified in
Section 1(p). Landlord and Tenant recognize that it is possible
that they may hereafter make additional agreements regarding
further extension or renewal of this Lease or a new lease or
leases for all or one or more parts of the Premises or other space
in the Project for a term or terms commencing after the
Commencement Date of this Lease. Landlord and Tenant recognize
that it is also possible that they may hereafter modify this Lease
to add additional space or to substitute space as part of the
Premises. If any such additional agreements, new leases or
modifications to this Lease are made (except for the exercise of
Tenant's Option to Lease the Building Three Option Space), unless
otherwise agreed in writing by Landlord, Landlord shall not have
any obligation to pay any compensation to any real estate broker
or to any other third person engaged by Tenant to render services
to Tenant in connection with negotiating such matters, regardless
of whether under the circumstances such person is or is not
regarded by the law as an agent of Landlord.
f. OTHER CHARGES. If either party commences any litigation against
the other party or files an appeal of a decision arising out of or
in connection with the Lease, the prevailing party shall be
entitled to recover from the other party reasonable attorney's
fees and costs of suit. If Landlord employs a
18
collection agency to recover delinquent charges, Tenant agrees to
pay all collection agency and attorneys' fees charged to Landlord
in addition to Rent, late charges, interest and other sums payable
under this Lease. Tenant shall pay a charge of $75 to Landlord for
preparation of a demand for delinquent Rent.
g. FORCE MAJEURE. Neither party shall be deemed in default hereof nor
liable for damages arising from its failure to perform its duties
or obligations hereunder if such is due to causes beyond its
reasonable control, including, but not limited to, acts of God,
acts of civil or military authorities, fires, floods, windstorms,
earthquakes, strikes or labor disturbances, civil commotion,
delays in transportation, governmental delays or war, provided
nothing in this subparagraph shall limit or otherwise modify or
waive Tenant's obligation to pay Base Rent and Additional Rent as
and when due pursuant to the terms of this Lease, or Landlord's
obligation to timely make any payments which Landlord is required
to make to Tenant pursuant to this Lease.
h. RULES AND REGULATIONS. Tenant shall faithfully observe and comply
with such commercially reasonable, non-discriminatory "Rules and
Regulations" as Landlord may from time to time adopt by written
notice. Landlord shall not be responsible to Tenant for the
violation or non-performance by any other tenant or occupant of
the building or Project of said tenant or occupant's lease or of
any of said Rules and Regulations.
i. LANDLORD'S SUCCESSORS. In the event of a sale or conveyance by
Landlord of the Project, the same shall operate to release
Landlord from any liability under this Lease from and after the
date of the sale or conveyance, and in such event Landlord's
successor in interest shall be solely responsible for all
obligations of Landlord under this Lease.
j. INTERPRETATION. This Lease shall be construed and interpreted in
accordance with the laws of the state in which the Premises are
located. This Lease constitutes the entire agreement between the
parties with respect to the Premises and the Project, except for
such guarantees or modifications as may be executed in writing by
the parties from time to time. When required by the context of
this Lease, the singular shall include the plural, and the
masculine shall include the feminine and/or neuter. "Party" shall
mean Landlord or Tenant. If more than one person or entity
constitutes Landlord or Tenant, the obligations imposed upon that
party shall be joint and several. The enforceability, invalidity
or illegality of any provision shall not render the other
provisions unenforceable, invalid or illegal.
k. CLEAN AIR ACT. Tenant acknowledges that Landlord has not made any
portion of the Premises or the Building accessible for smoking in
compliance with WAC ▇▇▇-▇▇-▇▇▇▇▇. If Tenant wishes to make any
portion of the Premises accessible for smoking, Tenant shall make
all improvements necessary to comply with all applicable
governmental rules and regulations. Tenant acknowledges that the
indemnity contained in Section 15 of the Lease includes, but is
not limited to claims based on the presence of tobacco smoke as a
result of the activities of Tenant, its employees, agents, or
guests.
29. OPTION TO EXTEND. So long as Tenant is not in material default under
the terms of the Lease, Tenant shall have the right to extend the term
of the Lease for two (2) additional terms of five (5) years each (the
"Extension Terms"). Tenant agrees to notify Landlord in writing of
Tenant's intent to renew at twelve (12) months prior to the termination
of the then current lease term. The rental rate during the Extension
Terms shall be equal to the then Fair Market Rental Rate (adjusted for
lease concessions) for comparable space located in Lower ▇▇▇▇▇ ▇▇▇▇,
Seattle, Washington.
Within thirty (30) days following Tenant's notice to Landlord of
Tenant's desire to extend the Lease, Landlord shall notify Tenant of
the proposed Extended Term Base Rent, which shall be equal to the then
Fair Market Rental Rate of the Premises. Fair Market Rental Rate shall
be defined as the annual Base Rent (projected from the date of the
commencement of the payment of annual rental to which it applies) which
Tenant would expect to pay and Landlord would expect to receive under
leases of space of comparable size and quality to the Premises and as
provided for in and on terms and conditions comparable to, this Lease
covering premises similar to the Premises. Tenant shall have thirty
(30) days following receipt of Landlord's notice of the proposed
Extended Term Base Rent, in which to accept such determination; or to
agree with Landlord on a stipulated Fair Market Rental Rate.
If Tenant notifies Landlord, within the aforesaid thirty (30) day
period, that Tenant disputes the Prevailing Market Rate quoted by
Landlord, the parties shall, during the following thirty (30) days,
negotiate in good faith to determine the Annual Base Rent for the
renewal Term. If within said thirty-day period the parties are unable
to agree on the Annual Base Rent, then within ten (10) days thereafter,
each party shall select a qualified appraiser experienced in appraising
commercial rental properties in the vicinity of the Building, who shall
submit appraisals for the Premises within thirty (30) days of their
appointment. If the difference between the appraisals is five percent
(5%) or less, the Prevailing Market Rate shall be determined to be the
average of the two appraisals. If the difference is greater than five
percent (5%), then the two appraisers shall select a third qualified
appraiser who shall submit an appraisal within the thirty (30) days
following the submission of the first appraisals. The Prevailing Market
Rate shall then be the average of the two (2) closest appraisals. The
fees of each appraiser shall be paid by the party appointing the
appraiser and the fees of the third appraiser, if any, shall be shared
equally by the parties.
19
The option shall be void if, at the time of exercise of such option,
Tenant is not in possession of the Premises or is in default under this
Lease or if Tenant fails to deliver the requisite notice thereof within
the time period specified above. The option granted herein shall not be
severed from this Lease, separately sold, assigned, or transferred.
30. RENT ABATEMENT. Notwithstanding anything to the contrary contained
herein, Tenant shall not be liable for the payment of Annual Base Rent
or Tenant's Share of Operating Costs for that 22,699 square feet of
Rental Area of the Premises identified as Floor Two of Building Two
(Rental Abatement Space), or other full floor in Building Two that
Tenant may select instead of Floor Two), for the period commencing with
the Lease Commencement Date and ending on the earlier of (a) the
commencement of month thirteen (13) of the initial lease term or (b)
the date that beneficial occupancy of Floor Two of Building Two)
commences. Should Tenant occupy less than the full floor prior to the
commencement of month thirteen (13), then the Annual Base Rent and
Tenant's Share of Operating Costs shall be charged for that portion of
the floor being occupied. Tenant covenants and agrees to notify
Landlord immediately at such time as Tenant commences occupancy of the
Rental Abatement Space. Upon commencement of the thirteenth (13th)
month of the lease term the full rent as provided for in Section 1
shall be due and payable no matter how much of the Rental Abatement
Space is occupied.
Tenant shall provide Landlord six (6) months prior written notice on
the occupancy date desired in order to allow for the completion of
tenant improvements of the Rental Abatement Space.
31. TENANT IMPROVEMENT ALLOWANCE. Landlord shall provide Tenant with an
allowance (the "Tenant Improvement Allowance") of up to Thirty Dollars
($30.00) per Rentable Square Foot of the Premises initially leased. The
Tenant Improvement Allowance may be used only for actual out-of-pocket
costs of labor and materials (including Washington State Sales Tax),
and for all professional design services necessary for the design and
permitting of the Tenant Work, provided by qualified third party
contractors approved by Landlord for construction of the Tenant Work,
which approval will not be unreasonably withheld, delayed or
conditioned. The Tenant Work and method of payment is set forth in
Exhibit F hereto.
32. ARCHITECTURAL AND ENGINEERING SERVICES. Landlord shall provide Tenant
with an allowance for schematic space plans performed by an approved
space planner up to a maximum amount of $.12 per rentable square foot
of the Premises. This design allowance shall be paid by Landlord within
twenty (20) days after invoice by Tenant with reasonable documentation
showing costs actually incurred.
33. OPTION SPACE. Tenant shall have the option to lease one full floor, up
to a maximum of two contiguous full floors, of Building Three
("Building Three Option Space") by providing written notice to Landlord
at least thirteen (13) months in advance of the desired delivery date
of said Building Three Option Space along with the amount of space to
be leased. The Building Three Option Space shall be Floor One and Floor
Two of Building Three. The last date on which written notice can be
given by Tenant to lease this Building Three Option Space is July 1,
2001. If Tenant gives written notice on the last available date, the
Building Three Option Space would not be delivered for occupancy until
August 1, 2002. Landlord shall determine the configuration (the full
floor to be taken if less than two full floors are required and the
location on the floor of any space that is more than one full floor but
less than two full floors) of the Building Three Option Space with
input from Tenant, once written notice is given by Tenant.
Landlord reserves the right to either:
a. Proceed with construction of Building Three as early as August 1,
1999 for delivery on or about October 1, 2000; or
▇. ▇▇▇▇▇ the commencement of construction of Building Three until
Landlord is in receipt of Tenant's written notice to lease space
in Building Three.
Landlord reserves the right to enter into leases with third party
tenants on Floor Three and Floor Four of Building Three at any time,
subject to Tenant's Right of First Refusal per Section 35 below.
Should Landlord elect to commence construction of Building Three prior
to Tenant providing written notice of its intent to lease the Building
Three Option Space, Landlord shall hold the Building Three Option Space
off the market for Tenant until July 1, 2001, which is the last date on
which Tenant can exercise its option to lease the Building Three Option
Space.
Tenant's option to lease all of the Building Three Option Space is
subject to Tenant meeting certain criterion as described in Exhibit G,
Option Space Performance Criterion. As further described in Exhibit G,
Tenant's option to lease the Building Three Option Space shall be
reduced to one (1) floor (either the first or second floor of Building
Three at Landlord's sole discretion) if the criterion is not met.
The Rental Rate for the Option Space shall be the current rental rate
that Tenant is then paying Landlord under the initial lease term and
the Landlord Provided Tenant Improvement Allowance for Building Three
shall be the same as provided for Building Two) under the initial lease
term. The lease expiration date for the Option Space shall be
coterminous with the initial lease term for Building Two.
20
34. RIGHT OF FIRST REFUSAL. So long as Tenant is not in material default
under the terms of the lease, Tenant shall have the Right of First
Refusal (ROFR) to:
a. Lease the third and fourth floors of Building Three should
Landlord exercise its rights to enter into leases with third party
tenants prior to the time tenant exercises its option to lease its
Building Three Option Space; and
b. Lease any and all contiguous space when it becomes available (ROFR
Space) throughout the initial term of this Lease and any
subsequent Extension Term.
If Landlord receives a bona fide written offer from a third party to
lease all or part of such ROFR Space, Landlord shall first notify
Tenant in writing that such ROFR Space is available to Tenant for
lease. Such Landlord notice shall include the material terms and
conditions contained in said third party offer (Term, Rent, Tenant
Improvement Allowance, etc). Tenant shall have ten (10) business days,
from receipt of Landlord's notice, to respond in writing with its
intent to lease or not to lease the ROFR Space under substantially the
same terms and conditions as contained in Landlord's notice.
If Tenant notifies Landlord of its intent to lease the ROFR Space, then
Landlord and Tenant shall enter into a written agreement modifying and
supplementing this Lease and specifying that such ROFR Space is a part
of the Premises under this Lease and containing other appropriate terms
and provisions relating to the addition of the ROFR Space to this Lease.
In the event Tenant does not exercise in writing its intent to lease
said ROFR Space within ten (10) business days of Landlord's notice to
Tenant, then Landlord shall thereafter be free to rent such ROFR Space
to any third party, under substantially the same terms and conditions
as contained in Landlord's notice, free of Tenant's right to lease the
ROFR Space. Tenant shall be free during any ongoing period in which the
ROFR Space remains unleased to request that Landlord re-open
discussions with Tenant, which Landlord shall do, subject to any
ongoing discussions that Landlord may then or thereafter engage in with
other prospective tenants and Landlord's right to lease the ROFR Space
under substantially the same terms and conditions as contained in
Landlord's notice.
35. RIGHT TO TERMINATE. So long as Tenant is not in material default under
the terms of this Lease, Tenant shall have a one time Right to
Terminate the Lease effective at the end of the eighty-fourth (84th)
month of the initial lease term subject to the conditions contained in
this Section. In order to exercise this Right to Terminate, Tenant
shall provide Landlord with written notice (`the Notice") by the end of
the 72nd month of the Initial Lease Term (at least twelve (12) months'
notice). If Tenant exercises this Right to Terminate, it shall be
obligated to pay all amounts due under the Lease until the earlier of
the end of the eighty-fourth (84th) month of the Initial Lease Term or
the effective date of any third party lease for the Premises, at which
point Tenant's obligations under the Lease will cease except to the
extent that there is any (i) difference between the monthly base rent
paid by the third party tenant, and the Base Monthly Rent due under the
Lease; and (ii) any rent or other sums owed by Tenant to Landlord from
the period prior to the effective date of the Termination. In no event
shall Tenant have any obligations under the Lease after the end of the
eighty-fourth month, provided Tenant has complied with the terms of
this Section and has no outstanding defaults under the terms of this
Lease. Tenant shall, within thirty (30) days of Landlord's receipt of
Tenant's notice to exercise this Right to Terminate, pay Landlord's
unamortized costs (based upon a twelve (12) year amortization period
and an interest rate of eight percent (8%) per annum) including, but
not limited to, the Tenant Improvement Allowance, Schematic Space Plan
Allowance and real estate commissions in connection with the initial
lease of the Premises to the Tenant. This Right to Terminate only
applies to the Premises in Building Two.
Tenant may exercise its Right to Terminate under any of the following
conditions:
a. CONTRACTION OF THE PREMISES. If Tenant wishes to occupy a smaller
premises, Tenant shall submit a written request to Landlord,
within thirty (30) days of the Notice, to have the size of the
Premises reduced to the size specified by Tenant. Landlord will
notify Tenant of its decision whether to grant Tenant's request
within sixty (60) days of receipt of such request. If Landlord
elects to reduce the size of the Premises, Tenant will be required
to pay Landlord's unamortized costs, as described above, within
thirty (30) days of Landlord's notice that it will allow the size
of the Premises to be reduced, provided that the amount of such
unamortized costs shall be prorated based on the size of the
reduced Premises. If Landlord declines Tenant's request to reduce
the Premises, then Tenant may exercise its Right to Terminate as
described above.
b. CESSATION OF BUSINESS. Tenant or any successor entity ceases
having its main administrative offices in the Seattle-Bellevue
Metropolitan area.
Tenant and Landlord agree that this Right to Terminate is not to be
used to facilitate the move of Tenant from ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ to another
building in the Seattle-Bellevue Metropolitan area prior to the end of
the initial Lease term except as stated in this Section.
21
36. EARLY POSSESSION. Tenant shall have the non-exclusive right to possess
the initial leased premises thirty (30) days prior to Lease
Commencement for the purpose of the installation of Tenant's furniture,
fixtures and equipment. Tenant shall not be charged base monthly rent
or operating expense charges during said Early Possession period.
Tenant shall coordinate its move-in activities with the contractor's
working on the site so as not to impede the final completion of the
Shell & Core Improvements, including punch list type activities. Tenant
shall be responsible for the removal and disposal of Tenant's furniture
and fixture vendor's cartons and trash.
37. TENANT SIGNAGE. Tenant shall have the right, at Tenant's expense, to
install dominant building signage on the Building as long as it leases
in excess of fifty percent (50%) of the rentable area of the Building.
Tenant's signage shall be subject to all governmental codes and
Landlord's prior written approval, which approval will not be
unreasonably withheld, delayed or conditioned for signage consistent
with the Landlord's architectural principles for the Project. Landlord
shall have the right to withhold its approval of any sign(s) which in
its reasonable judgment are not harmonious with the design standard of
the Building. A signage exhibit, providing more detail to size and
location, is further detailed in Exhibit D. Tenant shall have the
following signage opportunities:
a. Install one monument sign adjacent to the entry, or in the
landscaped area adjacent to the Building.
b. Install two exclusive, back lighted, pin-mounted signs on the top
parapet of the Building; one sign per wall, on the South, West or
East elevations (i.e. 2 of those three walls).
38. FIBER OPTICS. Tenant shall have the right to install satellite dishes,
fiber optics and related equipment for Tenants sole use at Tenant's
sole cost, expense and liability, subject to Landlord's approval of the
location and method of installation, which shall not be unreasonably
withheld or delayed for installations that do not interfere with other
electronic installations on the Building. Tenant's rights pursuant to
this Section shall include the right to make reasonable replacements,
upgrades and additions subject to the terms of this Section.
39. USE OF THE ROOF FOR BUSINESS PURPOSES. Tenant shall have the right to
enter on the roof of the Building from time to time, in accordance with
the provisions of this Section and with the prior approval of Landlord,
for the purpose of installing and maintaining, at Tenant's sole cost
and expense, equipment in connection with Tenant's use of the Premises
(the "Tenant's Equipment") at locations, designated by Landlord. Tenant
shall submit drawings, specifications, and installation data for
Tenant's Equipment to Landlord for its approval prior to installation.
Installation of Tenant's Equipment shall be accomplished under the
direct supervision of Landlord and in accordance with reasonable rules
and regulations prescribed by Landlord. Tenant's Equipment shall be
grounded in accordance with Underwriters Laboratories, Inc.
requirements.
Tenant shall make no penetration of the Building's roof during
installation or removal of Tenant's Equipment without the prior written
consent of Landlord. Tenant shall be responsible for the cost of
repairing all damages to Landlord's property caused by the
installation, operation, repair, or removal of Tenant's Equipment,
except to the extent caused by Landlord, its contractors, or employees.
Furthermore, in the event Landlord determines that the Building roof
must be repaired or resealed as a direct or indirect result of the
installation, maintenance, repair, or removal of Tenant's Equipment,
except to the extent caused by Landlord, its contractors, or employees,
all such repairing and/or resealing shall be performed by Landlord's
designated contractor at Tenant's sole cost and expense.
Upon termination of this Lease, Tenant, at its sole cost, shall remove
Tenant's Equipment from the roof of the Building, subject to the
provisions of this Section. Removal of Tenant's Equipment shall be done
in a manner satisfactory to Landlord.
If access to the Building roof is required by Tenant at times other
than normal business hours, Landlord reserves the right to charge
Tenant any actual costs incurred by Landlord for overtime wages to
Landlord's employees or contractors.
Tenant shall obtain and maintain all necessary FCC licenses, if any,
and all other governmental approvals, licenses, and permits required to
operate Tenant's Equipment, which operation shall not interfere with
the quiet enjoyment of the tenants within the Building.
Tenant agrees that Landlord hereafter shall have the right to install
and to grant others the right to install transmitting equipment,
satellite dishes, antennae, and similar equipment on the roof of the
Building, so long as neither the installation nor operation of such
equipment interferes with the operation of Tenant's Equipment.
Tenant agrees that transmissions from Tenant's Equipment shall not
cause interference with transmissions of other persons currently
operating communications equipment in the Business Community. Upon
written notification from Landlord of such interference, Tenant shall
immediately stop operation of Tenant's Equipment and not resume
operation until such interference is cured. Any future agreement
granting another tenant of the Building or any other person the right
to make rooftop installations shall contain a covenant by such other
tenant or person that its installation and operation of rooftop
equipment will not
22
interfere with the operation of Tenant's Equipment, and that if such
interference occurs, such other tenant or other user shall cease
installation or operation of its equipment until such interference is
cured.
40. FOOD SERVICE SPACE. Landlord has committed to Tenant to lease up to
2,000 square feet of space in the Southeast corner of the first floor
of Building Two to a third party food service tenant. Landlord has not
commenced negotiations with any food service vendors and, therefore,
the exact amount of space to be leased for this use is not finalized.
Tenant and Landlord shall work together to finalize this layout and
Tenant agrees to lease the space up to the finalized demising line of
the food service space. Tenant may, at any time up to the execution of
Landlord's lease for food service space, exercise its ROFR to lease
said space.
41. TENANT PARKING. Notwithstanding the provisions of Section 11.a., four
(4) parking spaces located under the footprint of Building Two and
reasonably close to the Building Two elevator may be reserved by Tenant
to be designated as F5 Network spaces.
42. EMERGENCY POWER GENERATOR. The Premises shall include an electrical
generator pad located by Landlord within the underground parking garage
(the "Generator Pad"). The Generator Pad shall be constructed by Tenant
in accordance with plans approved in advance by Landlord, which
approval will not be unreasonably withheld, delayed or conditioned, and
which plans shall include fencing and such curbing as is necessary to
contain any fuel spill. Tenant may install on the Generator Pad a
backup generator and fuel tank (collectively the "Generator"), the
make, model and design of which shall be subject to Landlord's prior
approval, which approval will not be unreasonably withheld, delayed or
conditioned. The design and operation of the Generator and Generator
Pad shall be such as to avoid material interference with other tenants
(whether due to vibration, noise, fumes, or otherwise) resulting from
operation of the Generator. The Generator shall be used only for
periodic testing and in the event Tenant's primary electrical service
is interrupted for any reason. All testing shall take place at times
reasonably selected to minimize interference with other tenants. The
Generator shall be used only for backup power, and may not be used as a
primary power source, nor may it be used by any occupant of any other
premises. The Generator Pad and the Generator shall be subject to all
terms and conditions of this Lease, including but not limited to
Sections 8, 15, and 16, provided only that the square footage of the
Generator Pad shall not be utilized in calculating the Premises
Rentable Area for the purpose of calculating Base Rent or allocating
Expenses between the Premises and any larger parcel. Upon expiration or
earlier termination of this Lease, Tenant shall remove all improvements
and equipment from the Generator Pad and shall restore same to a clean,
paved condition, and shall provide such studies or other information as
is necessary to demonstrate to Landlord's reasonable satisfaction that
there has been no environmental contamination on the Generator Pad as a
result of the storage and operation of the generator and fuel tank
thereon.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the
day and year first above written.
Landlord: 401 ▇▇▇▇▇▇▇ ▇▇▇▇ L.L.C.
BY: CHERLIN L.L.C.,
ITS: Manager and Member
By:
--------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Managing Member
BY: KMC-ONE, L.L.C.
ITS: Member
By
---------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Company
Its: Managing Member
Tenant: F5 NETWORKS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Its:
-------------------------------
By:
-------------------------------
Its:
-------------------------------
23
STATE OF WASHINGTON )
)ss.
COUNTY OF KING )
I certify that I know or have satisfactory evidence that ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ are the persons who appeared before me, and
said persons acknowledged that they signed this instrument, on oath stated
that they were authorized to execute the instrument and acknowledged it as
the Managing Member on behalf of CHERLIN LLC and KMC-ONE LLC and Member of
401 ▇▇▇▇▇▇▇ ▇▇▇▇ LLC to be the free and voluntary act of such party for the
uses and purposes mentioned in the instrument.
Dated:
--------------------
--------------------------------------
(Signature)
--------------------------------------
(Print 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 ___________
and ___________ are the persons who appeared before me, and said persons
acknowledged that they signed this instrument, on oath stated that they were
authorized to execute the instrument and acknowledged it as the ___________
and ___________ of ___________ to be the free and voluntary act of such party
for the uses and purposes mentioned in the instrument.
Dated:
--------------------
--------------------------------------
(Signature)
--------------------------------------
(Print Name)
Notary Public, in and for the State
of Washington, residing at
-----------
My Commission Expires
----------------
24
EXHIBIT A
THE PREMISES
[FLOORPLAN]
[FLOORPLAN]
EXHIBIT B
(continued)
LEGAL DESCRIPTION OF THE PROJECT
PARCEL A:
▇▇▇▇ ▇ ▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ of Seattle Tidelands, in King County,
Washington, as shown on the official maps on file in the Office of the
Commissioner of Public Lands at Olympia, Washington; except that portion thereof
lying within the railroad right of way.
PARCEL B:
▇▇▇▇ ▇, ▇, ▇ ▇▇▇ ▇, ▇▇▇▇▇ 156, and ▇▇▇▇ ▇ ▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ of
Seattle Tidelands, in King County, Washington, as shown on the official maps on
file in the Office of the Commissioner of Public Lands at Olympia, Washington;
except that portion thereof lying within the railroad right of way.
TOGETHER WITH all that portion of Portland Street lying between Block 156 and
Block 157, vacated by Ordinance Number 57725 of the City of Seattle; except that
portion of said vacated street as conveyed to Northern Pacific Railroad Company
for a right of way by deed recorded under Recording Number 3777400, lying
Southwesterly of the following described line: Beginning at a point in the
Southeasterly line of ▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, filed with the
Board of State Land Commissioners at Olympia on March 15, 1895, a distance of
1.75 feet Northeasterly from the Southmost corner of said Lot 2; thence
Northwesterly to a point in the Southeasterly line ▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, filed with the Board of State Land Commissioners at Olympia on March
15, 1895, a distance of 2.57 feet Northeasterly from the Southmost corner of
said Block 156.
PARCEL C:
▇▇▇▇ ▇, ▇, ▇, ▇ ▇▇▇ ▇, ▇▇▇▇▇ 158, Supplemental Plat of Seattle Tidelands, in
King County, Washington, as shown on the official maps on file in the Office of
the Commissioner of Public Lands at Olympia, Washington; except that portion
thereof lying within railroad right of way.
Together with that portion of West ▇▇▇▇▇▇▇▇ Street vacated by Ordinance Number
119174, of the City of Seattle and recorded under Recording Number 9811210440.
PARCEL D:
The vacated portion of West Republican Street lying between ▇▇▇ ▇ ▇▇ ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇ TIDE LANDS, and ▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and between
▇▇▇▇▇▇▇ Avenue West and Railroad Avenue West, except the Northern Pacific
Railroad Company's right-of-way.
EXHIBIT C
BUILDING 2 & 3 OFFICE
TENANT BUILDING SHELL AND CORE OUTLINE SPECIFICATIONS
The Building Outline Specifications which follow are intended to establish
the scope and quality of finishes, materials and systems to be furnished by
Landlord for the construction of the basic Building Shell and Core, as well
as the parking structure and landscaped surface parking areas (together
referred therein as the "Shell and Core"). The Building Outline
Specifications are intended to govern the development of the building
drawings through the completion of the final building working drawings and
specifications ("The Contract Documents"). Capitalized terms used and not
defined shall have the meanings given them in the Lease.
Landlord is committed to developing a long-term investment quality product,
which has lasting quality and landmark stature and will be considered in all
respects a first class office building development. This Outline
Specification may be amended, through mutual consent of the parties, during
the completion of the design development and construction document phases of
the design of the buildings. The cost of all maintenance following initial
installation shall be as provided under the Lease.
FOUNDATION SYSTEM
1. The augercast pile foundation system shall be designed based upon good
engineering practice, soils bearing analysis from a geotechnical
engineer and structural load calculations. Typical floor live loads for
all office floors shall be 80 pounds per square foot, plus an allowance
of 20 pounds per square foot for partitions. See Superstructure System
for exceptions.
2. The foundation system will be constructed with moisture protection and
foundation drains designed to provide a dry condition in all occupied
areas including the storage and equipment spaces.
3. The garage floor will contain floor drains with sand/oil interceptors
as required by code.
SITE WORK AND LANDSCAPING
1. All landscaping and site work shall comply with city ordinances, as
well as the Site Plan and Landscaping Plan approved by the City of
Seattle Department of Construction and Land Use.
2. Pedestrian plazas will provide a campus setting for the buildings. The
plazas will include features developed by the design team and approved
by the City.
3. Parking will be contained in a structured parking facility under the
entire length of the site and in surface landscaped parking areas.
4. Site lighting shall be consistent with other parts of the Project.
Buildings will have site fixtures to provide supplemental pedestrian
area lighting.
5. Each building will be provided with a service loading area and a trash
disposal area. All trash areas shall have capacity for disposal of
recycling materials.
SUPERSTRUCTURE SYSTEM
1. The garage framing will be composed of cast-in-place concrete columns
supporting long span concrete girders at 18 to 20 foot space which in
turn support one way post-tensioned slabs. The office framing will be
constructed of reinforced concrete utilizing an approximate 9.5 inch
post-tensioned flat slab. The office floors shall be designed for 80
pounds per square foot live load plus 20 pounds per square foot for
partition load, and 36 pounds per square foot for mechanical and
equipment loads at interior bays and 16 pounds per square foot at
perimeter bays.
2. Floor-to-floor heights to be a minimum of 14' - 6", maximum 15' - 0".
3. Stairs in stair towers will be equal or superior to concrete filled
steel pan stairs.
ROOF SYSTEM
1. Roofs shall be warranted by the specified manufacturer for a minimum of
ten (10) years and a maximum of fifteen (15) years.
EXTERIOR WALL SYSTEM
1. The primary Building spandrel and column cap material shall be a
combination of precast concrete and panelized structural brick veneer.
Exterior vision glass will be a one inch (1") insulated glass system
(typical size 5' 0" wide by 6' 0" high). An additional 2' - 0" of vision
glass height is available on Floors 1 and 4. The vision glass shall be
low reflective, tinted and will have a low e-coating, or equal, to
enhance
its insulating qualities. Vision glass will be supported in aluminum
frames with a Kynar- type coated finish. The overall U-value for the
entire facade shall be designed to satisfy the Washington State Energy
Code.
2. Storefronts and Building "monumental" entries will be of a lasting
quality glazing system with framed glass doors with stainless steel or
chrome trim, frame and hardware. Push/pull entry hardware will be
stainless steel or chrome. Hinges and hardware will be compatible with
the Americans with Disabilities Act criteria.
INTERIOR FINISHES
1. GARAGE ELEVATOR LOBBIES
a. Floor: Level loop carpeting.
▇. ▇▇▇▇▇: Split-faced block or other
serviceable material.
c. Elevator Fronts: Metal, factory finished baked
enamel.
d. Ceiling: Suspended acoustical ceiling.
e. Lighting: Building standard 2 x 4 Fluorescent
fixtures.
2. FIRST FLOOR ENTRY AND ELEVATOR LOBBIES
a. Floor: Custom inset carpet with honed or
flamed stone, quartzite, or other
12" x 12" hard surface border
material.
▇. ▇▇▇▇▇: 50% wood veneer with reveals and 50%
painted GWB. 4" wood base
throughout.
c. Elevator Fronts: Stainless steel.
d. Ceiling: Painted GWB.
e. Lighting: Recessed compact fluorescent down
lights and wall washers.
f. Entry Doors: Framed glass doors set
in storefront glazing with stainless
steel or chrome trim, all as
specified above.
g. Stair Doors: Painted metal doors with painted
hollow metal frames.
3. TENANT FLOOR ELEVATOR LOBBIES
a. Floors: Concrete sealed and ready for Tenant
finish.
▇. ▇▇▇▇▇: GWB with reveals (primed and sanded,
ready for Tenant paint).
c. Ceiling: GWB Facia and Soffit with acoustical
ceiling insert and recessed compact
fluorescent down lights (primed and
sanded, ready for Tenant paint).
d. Elevator Fronts/
Entries: Metal, factory finished baked enamel.
4. RESTROOMS
a. Floors: Ceramic tile field with one color
accent tile.
b. Base: Ceramic tile cove base field with
one color accent tile.
▇. ▇▇▇▇▇: Ceramic tile full height on all wet
walls with field and two (2) colors
accent tile. Vinyl wall covering as
specified by Owner elsewhere. Full
height and width mirrors over vanity
tops with light cove.
d. Ceiling: Suspended acoustical ceiling tile.
e. Lighting: Valance fluorescent lighting over
stalls and vanity, building standard
lights in center of room.
2
f. Vanity Tops: Granite, with 4" granite backsplash.
g. Toilet Partitions: Ceiling hung, with baked enamel
finish.
h. Plumbing Fixtures: Wall hung vitreous china water
closets (water saver type) equal to
Kohler, American Standard or Eljer.
Topset mounted vitreous china
lavatories equal to Kohler, American
Standard or Eljer.
i. Toilet Accessories: Fully recessed accessories in satin
finish stainless steel equal to
Bobrick. Lav top mounted soap
dispensers with 4" spout and liquid
soap containers below counter.
5. GARAGE
a. Floor: Concrete slab, finished with paint
striping applied where applicable.
▇. ▇▇▇▇▇: Perimeter walls with gunnite finish.
Core walls with painted concrete
masonry units, cast-in-place
concrete and GWB.
c. Ceiling: Cast-in-place post tensioned
concrete.
d. Lighting: 24 hour lighting using energy
efficient fixtures with antenna
guards. Lighting levels shall be 1.5
fc or greater.
e. Graphics: Complete garage graphics including
overhead signage, wall graphics and
directional arrows.
6. GENERAL
Gypsum Wall Board ("GWB"): Typical interior partitions 5/8" GWB on metal
studs. GWB ceilings on metal suspension system. Type X as required.
Moisture resistant at wet and ceramic tile areas. GWB in Building
lobbies and miscellaneous service rooms.
ELEVATOR SYSTEM
The Building will be served by two (2) geared passenger elevators and one (1)
oversized, 5,000 pound capacity hydraulic freight elevator. The passenger
elevators shall extend to all floors of the Building including the garage. The
freight elevator shall extend to all office floors and be located adjacent to
the first floor loading dock. At Tenant's option, the freight elevator can be
moved and converted to a traction "swing" elevator with a higher ceiling to
handle the movement of freight. The oversized "swing car" will be finished like
the passenger elevators and may be used solely by passengers during peak demand
periods, and both passengers and freight at other times.
1. The system will include the complete and workmanlike installation of
elevators, with duplex selective collective operation.
2. The system response time, as measured by registration of hall calls,
will not exceed 30 seconds during any up-peak demand with all cars
in-group service.
3. The elevators will be equipped with proximity card readers that
interface directly with the Building card access system. The Building
card access system will provide the flexibility to program access or
denial of access to each card reader based upon one or a combination of
variables, such as days of the year, month or week, time of day, or an
individual card. The Building security system will be capable of
printing out a record of each attempted or actual access at any card
reader in the Buildings. See "Security System" specifications below.
4. The elevator cabs will be customized utilizing wood or fabric wall
panels, stone tile and/or carpet flooring. Architectural metal fronts,
ceiling, and lighting furnished by Cab supplier.
One (1) car control station will be provided in each standard cab. One
(1) car control station will be provided in the "swing car" cab.
Elevators shall conform to all ADA requirements. Pads will be provided
for one (1) elevator in the Building (the "swing car").
Standard cab inside height will be eight feet (8'). "Swing car" inside
height will be approximately nine feet, six inches (9' - 6").
MECHANICAL SYSTEM
The system will be designed and installed to meet all current codes.
3
1. PERFORMANCE CRITERIA:
a. Summer outside temperature at 85 degrees, system maintains 74
egrees inside.
b. Winter outside temperature at 17 degrees, system maintains 72
degrees inside.
c. Occupant load based on 150 square feet per person, with people
loads calculated 450 btuh/person, combined sensible and latent.
d. Ventilation air designed at 20 CFM per person.
e. Cost effective heat reclaim technologies to be applied as required
by code.
f. Provision for "off-loading" capabilities of equipment such as
pumps, compressors and fans to permit economics and flexibility in
after hours operation.
g. Rooftop equipment will be installed with refrigerants to meet
current CFC requirements.
h. Toilet exhaust and other "dirty air" exhausted directly out of
Building at roof. These shafts will be sized to accommodate
exhausting of electrical and communication rooms.
i. Mechanical noise levels shall be kept at or below NC40.
j. The basic system shall be designed with capacity to cool
miscellaneous equipment loads of 3.0 ▇▇▇▇▇ per square foot.
2. HVAC SYSTEM
a. GARAGE:
Ventilation only to provide exhaust per current codes.
b. BUILDING:
Rooftop mounted, packaged DX (Direct Expansion) VAV HVAC
system. Roof curbs, vibration isolation, and sound attenuators
shall be provided. The Building's roof top equipment will have
capacity for handling Tenant miscellaneous equipment as
specified above. The equipment will employ DX units with
multiple refrigeration circuits that will allow off-hour use
in selected areas and still have the advantage of economizer
cooling. System will provide for a full hundred percent (100%)
outside air economizer when atmospheric conditions are
appropriate. Building HVAC will be monitored and controlled by
a Direct Digital Control (DDC) energy management and
environmental controls system featuring individual zone
control and after-hours flexibility. Individual zone terminal
boxes will be "pressure independent," series fan powered
perimeter terminal boxes capable of multi-staged heating and
cooling, with cooling only terminal boxes for interior zones.
The terminal boxes, control wiring and temperature sensors
will be furnished and installed as part of Tenant work.
c. HVAC SYSTEM OPERATING HOURS:
The computerized environmental control system for the
equipment will permit an override of the operating schedule to
serve an individual zone or a predefined group of zones, by
pushing a button on the thermostatic sensor. Weekends,
holidays or scheduled "non-business hours" periods can be
accommodated with the activation of the Building system to
provide service to reasonably sized sub areas, for a nominal
extra cost.
PLUMBING
Plumbing work shall include design installation of a complete plumbing system
for buildings including all equipment and systems. All materials installed shall
be new and of commercial quality with the same brand or manufacturer used for
all similar material or equipment. Color of all fixtures shall be white, unless
otherwise specified. Enamelware shall be acid resisting throughout. The
following is a partial list of required systems and services:
a. Toilet room fixtures as required by all codes, including ADA.
b. All roof and overflow drains per code. Provide floor drains
with trap primers in all toilet rooms.
c. Back-flow Preventer (BFP) and Pressure Reducing Valve (PRV).
d. Drinking fountains shall be furnished as Electric Water Cooler
(EWC) and per ADA
4
requirements.
e. All waste and vent piping systems.
f. All plumbing/piping systems are to be stubbed outside the
building and include final connections/coordination to
city/local utilities.
g. Access doors and access panels in finished walls, floors, or
ceilings are required and shall be unobtrusive.
h. Storm water piping from roof drains.
i. Condensate drainage system connected to all mechanical
equipment condensate drain pans, connected in turn to the
building piping system.
5
ELECTRICAL SYSTEM FOR THE BUILDING SHELL
The system will be designed and installed to meet all applicable current codes.
1. MAIN BUILDING SHELL ELECTRICAL SERVICE DESCRIPTION:
Incoming power will be provided to the Building by the local utility
("Utility") via a transformer installed and maintained by the Utility.
Power will then travel from the transformer vault to the Building's
main service switchgear which will have multi-level ground-fault
protection and be sized to provide levels of service, circuit and
devices as outlined below at a service voltage of 480 volts.
The main Building service configuration will be a wye, three-phase,
four-wire service. In addition to utility metering, digital owner
meters for maximum demand, voltage and amperes will be provided at main
service switchgear.
A riser busway, or other reliable feeder system, will carry full
service capacity through each floor's electrical room from the main
switchgear in each Building. Lighting and small mechanical system motor
loads will be served from high voltage (480v/277v) panels located on
each floor in Building electrical rooms throughout the Building at
Landlord's expense. Large mechanical loads will be fed from the main
service switchgear.
Low voltage (208v/120v) loads will be served through Building Shell &
Core distribution dry type transformers and two (2) electrical circuit
panel boards, with 42 circuits each, located on each floor at
Landlord's expense.
2. ELECTRICAL POWER CAPACITY:
Landlord shall provide main (480V/277V) Building electrical service
capacity (amperage) to satisfy Tenant's reasonable electrical
requirements. The main building electrical service capacity is designed
to provide at least 18 ▇▇▇▇▇ per square foot of useable area plus an
additional three (3) ▇▇▇▇▇ per square foot to accommodate Tenant's
electrical needs.
All electrical work necessary to install Tenant's (280V/120V)
electrical outlets, and connect them to the main building electrical
service and Building Shell & Core circuit panels shall be provided for
under Tenant Work.
3. LIGHTING:
a. Lighting unit power density in Building common and office
areas will comply with current energy code using energy
efficient lighting lamp and ballast technology. Offices are
currently allowed 1.2 ▇▇▇▇▇ per ▇▇▇▇▇ square foot of area.
b. LIGHTING FIXTURES:
All interior lighting will be fluorescent fixtures of high
quality and various architectural types (e.g. recessed, wall
sconces, troffer style, etc.). Exterior lighting will be HID
(High Intensity Discharge) type. Electronic or energy
efficient ballasts will be utilized in all fixtures.
Tenant shall provide its own lighting fixtures in the office
areas, through its Tenant Work Allowance.
4. COMMUNICATIONS AND DATA CONSIDERATIONS
a. Stacked dedicated, data/telephone closets and sleeve access
between floors (planned floor penetrations) and to the roof
for data and communication lines.
b. Provide access only for electrical service to the roof for
power to Tenant's communication devices.
c. Separate "isolated ground" wire for sensitive electrical, data
and communications devices. Access available at all floors.
Building grounding system will not exceed five (5) ohms to
ground.
d. Access to perimeter wall areas for electrical, phone and data
outlets, to be furnished and installed by Tenant, shall be
coordinated in accordance with the Shell and Core construction
schedule.
e. Generic alarm monitoring of mechanical equipment capability in
the event of power or equipment failure. Critical equipment
will be furnished with contacts and a modem to relay trouble
alarms to a PC purchased by Tenant and located on the
premises.
6
5. EMERGENCY POWER
Emergency generator system and installation shall be a Tenant furnished
and installed item. Shell and Core emergency lighting and other fire
life safety code related systems shall be powered by code approved
emergency power supply.
SECURITY SYSTEM
1. All perimeter building and garage access points will be protected and
monitored 24- hours per day, seven days per week by a UL approved
monitoring station.
2. A proximity card key access system capable of printing out each use of
the system for each exterior entrance to each Building, each garage
gate and each elevator cab. The basic system shall include one printer
and shall be expandable at Tenant's cost to provide office space access
control as a part of Tenant's tenant improvements.
FIRE PROTECTION AND LIFE SAFETY SYSTEMS
1. Fire sprinkler system will be individually valved and alarmed on each
floor.
2. The system shall be equipped with monitoring devices for 24-hours per
day, seven days per week monitoring by a UL approved central monitoring
station for smoke, waterflow and valve tampering. The monitoring
service shall be an operating cost.
3. Fire rated doors, smoke detectors, heat detectors, alarm systems, fire
extinguishers, fire hose cabinets, standpipes and other such devices
will be provided as required by code for Building Shell and Core and
common areas. A central fire alarm system capable of supporting an ADA
approved system throughout the Building will be provided. Expansion or
modification of such systems within Tenant areas will be a part of
Tenant's Improvement costs.
BUILDING STANDARD OFFICE AREA FINISHES INCLUDED WITH THE BUILDING SHELL
The following improvement work shall be provided by Landlord as part of its
Shell and Core work.
1. Electrical (480V/277V) service distributed to each floor set within
the building core with two (2) 42 circuit 120V/208V panels and
transformer provided. Branch circuit wiring to be accomplished under
Tenant work. (see Electrical System specification above).
2. Aluminum window ▇▇▇▇▇, aluminum sill extensions and aluminum window
head. Perimeter GWB (including perimeter columns) tacked to steel stud
framing. Interior columns are sheathed with GWB tacked to steel stud
framing.
3. Sprinkler heads, installed in shell and core work in accordance with
governing code for unoccupied space.
4. Base HVAC system installed and operating, including main duct
distribution on each floor up to, but not including, the series type
terminal fan units and thermostats. The terminal boxes, thermostats,
flex duct and diffusers shall be part of Tenant work.
5. Common area fire alarms, smoke detectors and exit lights installed per
code and in compliance with the ADA.
6. First Floor lobby, building restroom facilities, and exterior spaces
shall be finished in accordance with governing codes and ordinances as
a part of the Building Shell and Core.
7. Shell and Core floor shall be flat and level in accordance with the
industry standards for the type and location of the installation.
8. Levelor 1" blinds purchased and installed by Landlord with the cost of
same ($0.25 per square foot of NRA) charged against the Tenant's
improvement allowance.
7
EXHIBIT D
SIGNAGE CRITERIA
This Exhibit D is a supplement to Section 36 of the certain lease (the "Lease")
between 401 ▇▇▇▇▇▇▇ ▇▇▇▇ LLC (the "Landlord") and F5 Networks, Inc. (the
"Tenant"). This Exhibit further clarifies the criteria for the signage provided
for in Section 36 of the Lease. As stated in the Lease Tenant shall have two
signage opportunites. The criteria for these signs is more specifically
delineated as follows:
1. MONUMENT SIGN (SIGN "A")
Tenant shall be allowed to place one monument sign adjacent to the
building entry, or in the landscaped area adjacent to the Building.
Approved locations for Sign A are as shown on the attached site plan.
Sign A shall be an non-illuminated freestanding sign, up to 48" wide by
48" high as shown on the attached drawing. The parties to the Lease
shall mutually agree upon the final configuration and materials of Sign
A.
2. BUILDING MOUNTED SIGNS (SIGN "B").
Tenant shall be allowed the exclusive right to place two building
mounted signs on the top parapet of the Building. Three possible
locations are available for these two signs: one on the east elevation,
one on the south elevation and one on the west elevation. These
possible locations for the two approved signs (Sign B) are as shown on
the attached elevation plans.
These signs shall be pin mounted and may be back lighted. The sign
letters may be as large as 30" high and they shall be centered in the
top three foot band of the parapet, The parties to the Lease shall
mutually agree upon the size of any logo, configuration and materials
of Sign B.
[BUILDING DESIGN]
EXHIBIT E
SPECIFICATIONS FOR CLEANING SERVICES
The Buildings will be serviced five (5) days per week in the following areas:
Corridors, Elevators, Entry, Hallways, Lobby, Lunch Rooms, Coffee Stations,
Office Cubicles, Office Suites, Parking, Restrooms and Stairways.
SERVICE SPECIFICATIONS
A. SERVICE AREA
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
B. GENERAL AREAS
1. DAILY SERVICES
a. Empty and clean all waste receptacles, replacing trash liners
as needed to prevent odors, spills or any offensive
appearance. Wash and sanitize waste receptacles, as necessary.
Trash to be removed to dumpster or compactor provided on site
by Client.
b. Dust ledges and other horizontal surfaces within reach.
c. Dust counters, spot wash where required.
d. Dust horizontal surfaces of desks, chairs, tables, file
cabinets and other office furniture. If glass, use glass
cleaner.
e. Vacuum all carpeted traffic areas in offices, lobbies and
corridors and entrance mats.
f. Spot clean minor carpet stains. Report any large/major carpet
stains to Building Management via logbook.
g. Dust mop all resilient and composition floors with treated
dust mops. Damp mop to remove spills and water stains as
required.
h. Clean, sanitize and polish all drinking fountains.
i. Remove all finger marks and smudges from all vertical surfaces
(i.e., doors, frames, light switches, relites and partitions).
j. Remove all lint and physical dirt from fabric upholstered
chairs, couches, etc.
k. Vacuum or brush all conference room chairs and reposition
under conference tables, be careful not to damage table/chair
edges.
l. Spot clean all glass partitions, relites, all doors, including
suite entrance doors and adjacent glass \panels.
m. Return all chairs and waste baskets to proper position for
next day's use. n. Clean all coffee stations:
1. Wash and wipe counter tops and cabinetry.
2. Sweep and damp mop floors.
3. Clean sinks if cleared of tenant items.
4. Spot clean walls with water only.
5. Remove trash, replacing trash liners nightly. Wipe
exterior of garbage cans. Sanitize interior of garbage
can as needed to prevent odors and offensive appearance.
6. Load all cups/mugs into dishwasher. Put in soap and run
dishwasher. When clean, put cups/mugs away in cabinets.
o. Clean lunch rooms:
1. Vacuum all carpeted areas, sweep all hard surface floors
and damp mop. Wash and wipe serving area counter tops and
cabinet fronts.
2. Collect all trash and remove from the premises, place in
dumpster or compactor provided on site by Client.
p. Do not move items on desks or credenzas while cleaning. Do not
unplug computers, typewriters, copy machines or other
electrical equipment.
q. Discard only the contents in waste containers. NO OTHER ITEMS
ARE TO BE DISCARDED UNLESS MARKED AS TRASH. Remove to trash
compactor or dumpster on site, provided by Client.
r. If recycle program is in effect, remove recycle materials to
containers provided by Client.
s. Do not assist the entry of anyone other than the Contractor's
employees into occupant space or other Building property. All
Contractors must have AT&T Wireless photo I.D. badge visible
at all times.
t. Report in the control log and to Building Management any
broken fixtures or other items needing Management attention.
u. Maintain neat and orderly janitor supply closets. All
chemicals must have MSDS information in janitor closet.
v. Replace burned out lights, accessible with a six foot step
ladder, on a nightly basis. Lamps to be provided by Client.
w. Building doors are to be remained locked at all times during
cleaning so as to preclude unauthorized entry.
x. Clean elevator cab surfaces and vacuum door tracks.
Exhibit E - Page 1
2. WEEKLY SERVICES
a. Dust high surfaces (i.e. tops of picture frames, partition
tops, moldings, cabinets, wall hangings and other wall
accessories).
b. Wet mop all resilient and composition floor surfaces.
c. Clean and polish doors, conference tables, executive office
desks and credenza tops that are cleared.
d. Wipe clean and polish all metal hardware throughout the area.
e. Vacuum and edge all carpeted areas not vacuumed
daily.
f Vacuum all upholstered furniture in office area.
g. Damp wipe all telephones in common areas with an approved
germicide cleaner. Do not spray solution directly on phone
equipment.
3. MONTHLY SERVICES
a. Dust baseboards.
b. Vacuum or dust air diffusers.
c. Dust venetian blinds.
d. Clean and buff all resilient and composition floors.
e. Shampoo and extract elevator and elevator lobby carpets.
f. Clean and dust interior of fire extinguisher cabinets.
4. QUARTERLY CLEANING SERVICE
a. Dust overhead lighting fixtures.
b. Dust ventilator ducts and vents, vacuum surrounding ceiling
areas.
c. Wash exposed surfaces of filing cabinets.
d. Clean and sweep telephone, electrical and janitorial closets.
e. Vacuum all carpets with pile lifter to restore pile to its
original upright position.
5. BI-ANNUAL CLEANING SERVICE
a. Strip old finish from all tile, clean grout (acid wash if
Property Manager deems necessary) and V.C.T. floors and
refinish, per manufacturer's specifications.
b. Wipe down inside of overhead lighting fixtures lens cover.
C. LOBBY, ENTRY AND HALLWAYS
1. DAILY SERVICES
a. Empty all waste containers, wash and reline as needed. Remove
trash to dumpster or compactor provided on site by Client.
b. Spot clean exterior surface of waste containers.
c. Empty and clean all ashtrays and cigarette urns.
d. Screen and/or replace sand in cigarette urns. Sand provided by
Client.
e. Clean, sanitize and polish water fountains.
f. Dust all plant pots.
g. Dust all horizontal surfaces within reach.
h. Vacuum carpeted floor surfaces.
i. Spot clean minor carpet stains. Report any large/major carpet
stains to Building Management via logbook.
j. Dust mop hard floor surfaces.
k. Wet mop hard floor surfaces as necessary.
l. Remove gum, tar and other foreign substances from floor
surfaces.
m. Spot clean all marks on walls.
n. Clean door thresholds and vacuum entrance walk-off mats.
o. Police all interior public areas and planters for debris.
p. Replace burned out lights, accessible with a six-foot step
ladder, on a nightly basis. Lamps to be provided by Client.
q. Spot clean all bright work, including but not limited to door
hardware, kick plates, and hand rails.
r. Dust and spot clean to remove smudges the building directory
and building signage throughout the buildings.
s. Maintain all natural stone floor surfaces to retain original
appearance at installation.
2. WEEKLY SERVICES
a. Dust baseboards.
b. Hose down exterior entrances and walkways.
3. MONTHLY SERVICES
a. Wash all waste containers.
b. Vacuum air diffusers.
Exhibit E - Page 2
c. Edge all carpeted surfaces.
d. Dust high partitions, ledges and moldings.
4. QUARTERLY SERVICES
a. Completely wash partitions/walls
b. Spot buff (to remove marks, etc.) and refinish restroom tile
floors.
c. Vacuum all carpets with pile lifter to restore pile to its
original upright position.
5. ANNUAL SERVICES
a. Dust high partitions, ledges and molding.
D. ELEVATORS
1. DAILY SERVICES
a. Vacuum and edge all carpeted floor surfaces.
b. Spot clean carpet stains. Report any large/major carpet stains
to Building Management via logbook.
c. Clean and vacuum elevator tracks on every floor.
d. Clean both sides of elevator doors.
e. Spot clean vertical surfaces.
f. Dust all horizontal surfaces.
g. Remove gum, tar and other foreign substances from floor.
h. Clean and polish all metal work.
i. Spot clean elevator call buttons.
2. MONTHLY SERVICES
a. Dust ceiling fans and vents.
E. STAIRWAYS
1. DAILY SERVICES
a. Gather all waste and place for disposal in dumpster or
compactor provided on site by Client.
b. Spot mop spillage.
c. Remove gum, tar and other foreign substances from floor.
2. WEEKLY SERVICES
a. Dust horizontal surfaces within reach.
b. Dust handrails.
c. Sweep stairs.
3. MONTHLY SERVICES
a. Spot clean wall surfaces within reach.
F. RESTROOMS
1. DAILY SERVICES
a. Check and refill towel, soap, toilet paper, seat covers and
sanitary napkin dispensers. Consumable supplies provided by
Client.
b. Sweep or dust mop floor surfaces.
c. Wet mop floor surfaces with disinfectant solution.
d. Dust horizontal surfaces within reach.
e. Empty and clean all waste containers and place for disposal in
dumpster or compactor provided on site by Client.
f. Empty and clean all sanitary napkin containers.
g. Clean and polish all soap, towel, toilet paper and seat cover
dispensers.
h. Clean and polish all mirrors, bright metal, other fixtures,
frames and shelves.
i. Clean and polish all wash basins.
j. Clean and sanitize partitions, counters, toilets, toilet
seats, wash basins and urinals.
k. Clean and polish chrome fixtures.
l. Spot clean walls around sinks, towel dispensers, urinals,
partitions and door frames.
m. Remove gum, tar and other foreign substances from floor
surfaces.
n. Report any fixture not working properly to Building Management
via logbook.
2. MONTHLY SERVICES
a. Dust or vacuum air diffusers.
Exhibit E - Page 3
b. Wash walls, partitions and doors.
c. Dust or vacuum light fixtures.
3. QUARTERLY SERVICES
a. Machine scrub ceramic tile floors. Replace finish per manufacture
specifications.
G. BUILDINGS EXTERIOR
1. WEEKLY SERVICES
a. Police all exterior perimeter sidewalks, complete to gutter.
Remove all trash and debris, including cigarette butts.
b. Sweep sidewalks, benches and gutters adjacent to buildings to
remove cigarette butts and litter.
c. Spot clean all exterior glass at building entrances.
d. Spot clean and dust all architectural elements such as ledges,
mirrors and handrails adjacent to entrances of buildings.
2. QUARTERLY SERVICES
a. Steam clean, machine scrub or pressure wash exterior sidewalks
and plaza areas associated with the Buildings.
H. SERVICE ENTRANCES, TRASH AREAS AND LOADING DOCK
1. DAILY SERVICES
a. Place all miscellaneous trash and debris, except construction
material in the appropriate trash receptacle.
b. Clean up any construction debris and place in a designated
area. Notify Client's agent the morning following the work the
type of said debris and the time associated with the cleaning.
Keep record of the time and material used for this work for
back charges to the offending contractor(s). Submit a separate
invoice within the week in which the work took place outlining
the scope of work performed and associated costs. Failure to
report this work per the above guidelines will eliminate
payment by Client for said work.
c. Sweep entire area with sweeping compound to eliminate
resettling of dust.
d. Wet mop any spills or stains.
2. WEEKLY SERVICES
a. Hose down entire loading dock and service entrance. Deodorize
and disinfect area, as required.
I. CARPET CLEANING
1. QUARTERLY SERVICES
a. Shampoo entry floor lobby, public hallway and garage level
elevator lobby carpets on first, second and third floors,
including garage level.
b. Shampoo all elevator cab carpets.
J. PARKING GARAGE
1. DAILY SERVICES
a. Vacuum all hard surfaced floors associated with elevator
lobbies, then wet mop with clear water and mop dry.
b. Gather all waste and place for disposal in dumpster or
compactor provided on site by Client.
c. Police stairwells and remove debris, gum, tar and other
foreign substances from the stairs and stair landings. Spot
mop spillage.
2. WEEKLY SERVICES
a. Dust horizontal surfaces associated with elevator lobbies and
stairwells.
b. Dust handrails.
c. Sweep all stairs and landings.
3. QUARTERLY SERVICES
a. Spot clean wall surfaces in elevator lobbies and stairwells
within reach.
Exhibit E - Page 4
EXHIBIT F
TENANT WORK LETTER
F5 Networks, Inc. (hereinafter called "Tenant") and ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ LLC
(hereinafter called "Landlord") are executing simultaneously with this Tenant
Improvement Work Letter ("the Work Letter") a written Lease ("the Lease") for
space in the building known as ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇. As further consideration to entering into the Lease, Landlord
and Tenant mutually agree to the following terms and conditions.
I. LANDLORD WORK AT LANDLORD EXPENSE
Landlord shall complete the Building Shell and Core in substantial
accordance with Exhibit C, Building Shell and Core Outline
Specifications (the "Landlord Work"). As used in this Lease, the
"Delivery Date" shall be the date the Premises are sufficiently complete
to allow Tenant to commence construction of Tenant's improvement work
(the "Tenant Work") when Landlord has substantially completed (excepting
punch list items and items that do not materially interfere with the
construction of the Tenant Work) the following items of its Landlord
Work, provided that in the event the Delivery Date is delayed due to
Tenant Delay, then the Delivery Date shall be the date on which the
Delivery Date would have occurred but for the Tenant Delay:
A. Building fully enclosed and water tight, including the roof and
permanent exterior walls.
B. Power and lighting electrical service available as described in
Exhibit C for distribution by the Tenant.
C. There shall be satisfactory evidence that:
1. The balance of the Landlord Work can be completed prior to the
Commencement Date; and
2. The Tenant's contractor has an opportunity to proceed
efficiently with the Tenant Building Improvements, subject to
a requirement of reasonable coordination and cooperation with
Landlord's Shell and Core contractor.
Tenant may begin the Tenant Work ahead of the above items being
completed at Tenant's election provided that 1) Tenant acknowledges such
action shall establish the Delivery Date, and 2) the Tenant's decision
to begin the Tenant Work shall not interfere with the Substantial
Completion of the Premises.
Except as set forth above and as defined in Exhibit C, all work,
improvements, finishes and/or equipment required by Tenant and/or
specified in the approved Tenant Plans for the Premises shall be
considered the Tenant Work.
II. LANDLORD WORK AT TENANT EXPENSE
Upon request by Tenant, Landlord will have certain Building Shell and
Core work that exceeds the scope of the Landlord Work, as defined
above, completed during the normal course of construction of the
Building Shell and Core. This work shall hereinafter be referred to as
"Shell and Core Tenant Upgrades." Once the scope of the Shell and Core
Tenant Upgrades are known, Landlord shall provide Tenant with a budget
for these Upgrades. All Shell and Core Tenant Upgrades, including the
cost for same, shall be authorized in writing by Tenant and approved in
writing by Landlord on the same basis as the approval of Tenant's Plans
(see III.A.4 below). All Shell and Core Tenant Upgrades shall be
performed by Landlord's contractor under Landlord's supervision.
III. THE TENANT WORK
A. TENANT'S PLANS. Tenant shall employ an architect/space planner
("Tenant's Architect") as its architect to provide information to
Landlord as necessary for the completion of Shell and Core Tenant
Upgrades and to prepare architectural drawings and specifications
for all layout and improvements to the Premises not included in the
Landlord Work. Tenant shall also employ all necessary engineers
(the "Tenant's Engineers") to prepare technical working drawings
and specifications for all the Tenant Work, including structural
alterations, mechanical and electrical work. All such drawings and
specifications are referred to herein as "Tenant's Plans" and shall
include the "Preliminary Plans", "M & E Working Drawings" and
"Issued for Construction Documents" all of which are hereinafter
defined. Tenant's Plans shall be in form and detail sufficient to
secure all required governmental approvals and shall be completed
on Auto-Cad (Version 14 or higher).
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Tenant's Architect and Tenant's Engineers shall be mutually
acceptable to Landlord and Tenant. ▇▇▇▇▇▇▇▇ Engineers and the
▇▇▇▇▇▇▇▇▇ Company are hereby approved as Tenant's Engineers for
mechanical and electrical engineering work. Other architects and
engineers required in the course of Tenant's Plans will be as
mutually approved.
1. PRELIMINARY PLANS. The "Preliminary Plans" shall be a
schematic plan (1/8" scale) for the Premises showing interior
partitions, a preliminary reflected ceiling plan, and rough
locations and approximate quantities for, any plumbing
fixtures and phone, data and electrical outlets. Locations for
special structural and loading requirements in excess of those
provided for in Exhibit C will be provided to Landlord prior
to October 1, 1999. The cost of increasing the floor loads
beyond those identified in Exhibit C, shall be a Shell and
Core Tenant Upgrade.
2. MECHANICAL AND ELECTRICAL ENGINEERED WORKING DRAWINGS AND
SPECIFICATIONS ("M & E WORKING DRAWINGS"). The Tenant Plans
shall be engineered to provide for complete mechanical and
electrical operating systems. Tenant shall contract with
Tenant Engineers and cause them to prepare M & E Working
Drawings showing complete plans for electrical and mechanical
systems including but not limited to, life safety, automation,
plumbing, and air cooling, ventilating, heating and
temperature controls. Tenant shall use Landlord's engineers
for this work: ▇▇▇▇▇▇▇▇▇ & Co. (mechanical) and ▇▇▇▇▇▇▇▇
Engineers (electrical).
3. ISSUED FOR CONSTRUCTION DOCUMENTS. The "Issued for
Construction Documents" shall consist of all drawings (1/8"
scale) and specifications necessary to construct all Tenant
Work in form and detail sufficient to secure all required
governmental approvals and to demonstrate conformity with the
Landlord's standards and quality. Tenant's Architect and
Tenant's Engineers are responsible for having all mechanical,
electrical, life safety and Tenant Work required structural
drawings complete.
4. APPROVAL BY LANDLORD. Tenant's Plans shall be subject to
Landlord's approval, which approval shall not be unreasonably
withheld or delayed. Landlord shall be entitled to withhold
approval if the proposed plans and specifications (i)
interfere with the structural integrity of the Buildings, (ii)
overload the utility systems of the Buildings, (iii) violate
any applicable laws or regulations, (iv) materially affect the
architectural integrity of the Buildings, or (v) affect the
future marketability of the Buildings. If Landlord disapproves
of any of Tenant's Plans, Landlord shall advise Tenant in
reasonable detail of required revisions and the reasons
therefor. After being so advised by Landlord, Tenant shall
promptly submit a redesign, incorporating the revisions
required by Landlord, for Landlord's approval. If Tenant has
reason to dispute any Landlord disapproval, then the parties
shall meet within 5 days and attempt to resolve the dispute.
If the Parties are unable to resolve their differences as to
Tenant's Preliminary Plans within 5 days after meeting, then
either party may initiate an arbitration procedure by
notifying the other Party of the need to submit their
disagreements to binding and final arbitration by a mutually
acceptable arbitrator with at least ten (10) years commercial
office design experience. If the parties are unable to agree
on the arbitrator within a period of ten (10) days of notice,
then either party may request resolution by a single
arbitrator before the American Arbitration Association, as set
forth at the end of Lease Section 21.
5. SUBMISSION BY TENANT. Tenant shall submit Tenant's Plans to
Landlord on or before the following dates:
October 1, 1999: Structural floor load requirements.
January 1, 2000: All remaining Tenant Plans.
6. PERMITS. Tenant shall be responsible for the cost and
scheduling of the submission of Tenant's Plans, in a timely
manner, for plan check by the City of Seattle and the
obtaining of a building permit for the Tenant Work.
B. TENANT IMPROVEMENT CONSTRUCTION
1. Tenant shall be responsible for the construction of the Tenant
Work in accordance with approved Tenant Plans.
2. Tenant shall, upon completion of Tenant's Plans, directly
contract for the Tenant Work itself and request proposals from
Landlord's general contractor, as well as other qualified
tenant work general contractors working under the same
building trade work rules as
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Landlord's general contractor. The qualified list of such
contractors shall be mutually approved by Tenant and Landlord.
When a contract is executed between the selected contractor
and Tenant, said contractor shall be referred to as "Tenant's
Contractor." Tenant agrees to cooperate with Landlord and
Tenant's Contractor in the completion of the Tenant Work by
responding to Landlord's and Tenant's Contractor's requests
for information in a timely fashion and Landlord agrees to
respond similarly to Tenant and Tenant's Contractor.
3. Tenant shall submit to Landlord a preliminary cost estimate
for the Tenant Work and shall provide to Landlord a final
pricing for the Tenant Work when received from Tenant's
Contractor but not later than fifteen (15) days prior to the
commencement of the Tenant Work.
4. Tenant's construction contract with Tenant's Contractor shall
be a guaranteed maximum price contract (the "Tenant
Improvement Construction Contract") and shall contain a
construction schedule (the "Tenant Improvement Construction
Schedule") for construction of the Tenant Work. The guaranteed
maximum price specified in the Construction Contract shall
include all costs and fees for construction of the Tenant Work
with the exception of any required governmental permit fees,
professional fees and Washington State Sales Tax. To the
extent Tenant obtains any construction warranties from the
general contractor and/or any of the subcontractors performing
any of the Tenant Improvement work, it shall assign such
warranties to Landlord, to the extent assignable, and, in the
event such warranties are not assignable, Tenant agrees to
enforce such warranties on Landlord's behalf.
C. SCHEDULE
1. Provided that Tenant meets the scheduled deadlines for
preparation and approval of Tenant's Plans, the Delivery Date,
subject to any Tenant Delay or Force Majure delay, shall be
February 29, 2000.
D. LANDLORD'S ALLOWANCE FOR TENANT WORK
1. Landlord shall provide to Tenant a total "Tenant Improvement
Allowance" as provided in Section 31 of the Lease. The Tenant
Improvement Allowance shall be applied first toward the costs
relating to Shell and Core Tenant Upgrades, including
applicable Washington State Sales Tax, then toward the
construction of the Tenant Work shown on the final approved
Tenant's Plans, including applicable Washington State Sales
Tax. The maximum allowance for Shell and Core Tenant Upgrades
and Tenant Work shall not exceed $30.00 (Thirty dollars) per
Rentable Square Foot.
2. The Landlord shall pay the cost of the Tenant Work, up to the
maximum allowance, directly to the Tenant as more fully
described in Section IV below.
E. TENANT DELAY
1. The term "Tenant Delay" shall include, but shall not be
limited to, any delay in the occurrence of the Delivery Date
or completion of Landlord's Work resulting from:
a) Tenant's failure to perform any of its obligations with
respect to the schedule dates contained herein or in the
Lease, which actually results in a delay of the Delivery
Date; or
b) Any Tenant materials, finishes or installations called
for on the Tenant Plans which are not readily available
and, as a result, adversely affect the schedule;
c) Any modification by Tenant to the Tenant's Plans that
adversely affects the schedule; or
d) Any Act by Tenant or its agents and contractors in
installing any tenant fixtures or equipment that
unreasonably delays the issuance of the Certificate of
Occupancy or temporary Certificate of Occupancy for the
Premises; or
e) Any delay as a result of Section IV.B. Administration of
Work, Changes, Additions or Alternations.
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Landlord shall make commercially reasonable efforts to mitigate
the effect of any event that would otherwise cause Tenant Delay,
provided that Landlord shall not be required to expend additional funds
to mitigate Tenant Delay unless Tenant agrees in writing to reimburse
Landlord for such costs.
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F. LANDLORD DELAY
The term "Landlord Delay" shall mean those construction events within
the reasonable control of Landlord (i.e. excluding Tenant Delay, force
majeure and actions for which Landlord is not responsible under this
Exhibit F) to the extent such event causes:
a) a material and unexpected interference with Tenant's
construction of the Tenant Work and resulting delay in
substantial completion of the Tenant Work, or
b) a delay in substantial completion of the Building Shell
and Core beyond the reference dates specified in Section
3 and this Exhibit F.
Tenant shall make commercially reasonable efforts to mitigate the
effect of any event that would otherwise cause Landlord Delay, provided
that Tenant shall not be required to expend additional funds to
mitigate Landlord Delay unless Landlord agrees in writing to reimburse
Tenant for such costs.
G. COOPERATION
The parties agree to use best efforts to cause each of their
respective consultants, architects, engineers and contractors to
cooperate with one another so that the Landlord Work and Tenant
Work are promptly, diligently and efficiently constructed.
H. PUNCH LIST
Within twenty (20) days after Completion of the Building Shell and
Core, Tenant shall supply to Landlord a written punch list setting
forth readily apparent additional corrective non-warranty work to
the Building Shell and Core which Tenant believes is required to be
performed pursuant to the requirements of Exhibit C. Once Landlord
has been provided with a punch list in accordance with the
foregoing, and agrees with the content of the punch list, Landlord
shall within thirty (30) days of receipt of the punchlist take such
measures as are necessary to correct such defective work.
IV. ADMINISTRATION OF WORK
A. LANDLORD REIMBURSEMENT
1. Landlord shall at the direction of Tenant either reimburse
Tenant or directly pay Tenant's Contractor (up to the maximum
amount of the Tenant Allowance remaining after reductions for
Shell and Core Tenant Upgrades) for the Tenant Work on a
monthly basis, within twenty (20) days after the receipt of a
draw request from Tenant's contractor, accompanied by a signed
Application and Certificate for Payment (in AIA format) from
Tenant's Architect confirming that the work covered by such
draw request has been completed to its satisfaction and
setting forth, inter alia, the percentage of the Tenant Work
completed to date. This payment request shall also be
accompanied by partial conditional lien releases from Tenant's
Contractor covering the Tenant Work performed and/or materials
and labor supplied through the date of each application for
payment and full conditional lien releases from each
subcontractor and supplier which has at that stage completed
its work and confirmation from Tenant that its general
contractor is not in default and that the percentage of work
completed on the draw request is accurate. The reimbursement
shall be calculated on a percentage of completion basis less a
retention as called for under the Tenant Improvement
Construction Contract, but not less than five percent (5%).
After completion of one hundred percent (100%) of the Tenant
Work, Landlord shall either reimburse Tenant or directly pay
Tenant's Contractor for the then unreimbursed balance of the
allowance for the Tenant Work minus any mutually agreed
holdback for uncompleted punch list items, within thirty (30)
days following receipt of a schedule reflecting such costs,
together with paid invoices supporting such costs, and
satisfaction of all of the following conditions:
a) Receipt by Landlord of a set of "as built" drawings for
the Tenant Work and a copy of all warranties in effect
with respect to such Tenant Work;
b) Receipt by Landlord of a certificate from the Tenant's
architect confirming that all Tenant Work have been
performed in accordance with the approved plans and
specifications, governing codes and ordinances and all
punch list items, except mutually agreed items have been
corrected;
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c) Receipt by Landlord of reasonable evidence of payment by
Tenant of all other costs, including extras and change
orders, to its construction contract;
d) The receipt of lien releases from the general contractor
and all other persons who performed work on or supplied
materials for use in or otherwise have lien rights with
respect to the Tenant Work;
e) Landlord's on-site review of the Tenant Work and its
reasonable approval thereof; and
f) Issuance of a Certificate of Occupancy for the Premises
by the City or satisfactory evidence that said
Certificate of Occupancy will be issued for the Premises
within the said 30 day period;
No payment shall be made while Tenant is in default under the
Lease. If any payment is not made when due, interest shall
accrue thereon at the rate provided in Section 20.b. of the
Lease, but Tenant may not offset unpaid amounts against sums
otherwise due Landlord under this Lease, absent a final
judgment thereon.
2. If any lien is filed with respect to the Premises during the
course of construction of the Tenant Work, Tenant shall notify
Landlord in writing describing the cause of the lien and, if
lien is for reason other than nonpayment by Landlord, the
Tenant shall remove or otherwise satisfy the lien.
3. If Tenant elects to have Landlord directly pay Tenant's
Contractor per Section IV.A.1 of this Exhibit F, then Tenant
shall provide Landlord evidence satisfactory that Tenant has
funds sufficient to fund all amounts above the Tenant
Allowance.
B. CHANGES, ADDITIONS OR ALTERATIONS
1. TENANT REQUESTED CHANGES. If Tenant shall request any change,
addition or alteration in any of the work shown in the
Tenant's Plans after Landlord's approval thereof (whether the
result of governmental requirement or otherwise), Tenant shall
promptly give Landlord a written description of the changes
requested and submit to Landlord plans and specifications
describing such change. Provided the plans and specifications
are complete, Landlord shall expeditiously (but in no event
longer than within five (5) days after receipt of the complete
plans and specifications) review such plans and specifications
and provide to Tenant written approval of proposed changes.
Landlord's approval shall be governed by III.A.4. above.
Notwithstanding the foregoing, the costs of any Change Order
relating to the Tenant Work shall be applied against the
Tenant Work Allowance to the extent of any remaining balance
thereof. Notwithstanding anything herein to the contrary,
Landlord shall have no obligation to agree to or complete any
Change Order if and to the extent any delay resulting or
possibly resulting from the same jeopardizes the Delivery Date
of the Premises, unless Tenant accepts total responsibility
for such delay and reasonably compensates Landlord for such
delay.
2. CHANGES DURING CONSTRUCTION (SHELL AND CORE TENANT UPGRADES
AND TENANT WORK). Revisions to the Shell and Core Plans or
Tenant Plans, if any, are to be accommodated by Field Change
Orders. A "Field Change Order" is a document which outlines
the scope of a requested change in the Work as defined by the
Shell and Core Plans and Tenant Plans and bears the signature
of Tenant and Landlord representatives approving such change
in scope. All such plans, specifications, and Field Change
Orders shall be approved by Landlord and Tenant prior to being
executed or acted upon by the Landlord's or Tenant's
Contractors. Landlord and Tenant shall be given 24 hours to
respond without causing a Landlord or Tenant Delay unless
otherwise specified in said Field Change Order. In the event
the Field Change Order increases the cost of the Shell and
Core or Tenant Work beyond the maximum Tenant Work Allowance,
Tenant shall pay for the work per the terms of this Exhibit
and the Lease. As for Tenant Work, Tenant shall pay its
Contractor per the terms of the construction contract between
the Tenant and its Contractor.
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EXHIBIT G
OPTION SPACE PERFORMANCE CRITERION
Per Section 33 of the Lease, Tenant has the Option to Expand its Premises into
the Building Three Option Space as defined in said Section 33.
This Exhibit establishes criterion under which Tenant's Building Three Option
Space shall be reduced from a maximum of two full floors to one full floor.
Tenant's Building Three Option Space shall be reduced to one (1) full floor
(either the first or second floor of Building Three at Landlord's sole
discretion) if either one of the following two conditions exist:
1) If at August 1, 2000, Tenant does not have cash coverage or the
ability to finance current operating expenses plus twelve (12)
months of payments due under the Lease.
2) If by December 31, 2000, the number of full time employees working
within the Premises is less than 240.
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EXHIBIT H
FORM OF LETTER OF CREDIT
As provided in Section 6 of the Lease, an irrevocable, unconditional Letter of
Credit (the "Letter of Credit") in the amount of $2,500,000 shall be delivered
to Landlord within ten (10) days following the execution of the Lease. The
Letter of Credit will be in form satisfactory to Landlord (see attached draft),
will be a clean sight draft in the required amount in favor of "401 ▇▇▇▇▇▇▇ ▇▇▇▇
LLC", irrevocable and expiring no less than sixty (60) days after the Lease
expiration date, will be issued by a bank approved by Landlord and will be
unconditionally available to Landlord by Landlord's drafts, at sight.
The Letter of Credit can be an annually renewable Letter of Credit provided that
if the term of Letter of Credit is not extended for at least one year or a
replacement Letter of Credit from a new financial institution, both acceptable
to Landlord, is not issued at least thirty (30) days prior to any expiry date,
then Landlord shall have authority to draw down this Letter of Credit and use
the proceeds as the security deposit per Section 6 of the Lease in lieu of a
Letter of Credit.
The Letter of Credit shall be reduced per the following schedule and conditions:
1) Upon commencement of the sixty-first (61st) month of the lease, the
Letter of Credit shall be reduced to $1,500,000 if all the following
conditions exist as of the commencement of the sixty-first (61st) month.
a) Tenant is not then in default under the terms of the lease and
Tenant has cured all previous defaults, if any, with the Letter of
Credit having been restored to its full amount required previous to
this reduction.
b) Tenant is not then in default under any of its Corporate Banking
Loans or Lines of Credit requirements.
c) Tenant's total market cap as determined by the price of its common
stock traded on the NASDAQ or other similar public market is
greater than $100,000,000.
d) Tenant has experienced four consecutive quarters of positive
earnings during the preceding twelve (12) months, as reported in
its annual or quarterly reports to Shareholders.
2) Upon the early termination of the Lease, only per terms of Section 35 of
the Lease, Right to Terminate, the Letter of Credit shall be
extinguished and returned to Tenant, less any Rent, Additional Rent or
Other Sums due under the Lease.
3) Upon commencement of the ninety-seventh (97th) month of the Lease, the
Letter of Credit shall be reduced to $1,000,000 if all the following
conditions exist as of the commencement of the ninety-seventh (97th)
month.
a) Tenant is not then in default under the terms of the lease and
Tenant has cured all previous defaults, if any, with the Letter of
Credit having been restored to its full amount required previous to
this reduction.
b) Tenant is not then in default under any of its Corporate Banking
Loans or Lines of Credit requirements.
c) Tenant's total market cap as determined by the price of its common
stock traded on the NASDAQ or other similar public market is
greater than $100,000,000.
d) Tenant has experienced four consecutive quarters of positive
earnings during the preceding twelve (12) months, as reported in
its annual or quarterly reports to Shareholders.
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4) Upon expiration of the initial lease term or the commencement of the
first renewal term under this Lease, the Letter of Credit shall be
extinguished and returned to Tenant, less any Rent, Additional Rent or
Other Sums due under the Lease.
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