EXHIBIT 10.7
WORLD TRADE CENTER
EAST OFFICE BUILDING
LEASE AGREEMENT
BETWEEN
WRC TRADE CENTER LLC
LANDLORD
AND
VISIO CORPORATION
TENANT
LEASE AGREEMENT
WORLD TRADE CENTER
EAST OFFICE BUILDING
THIS LEASE made this 9th day of January, 1998 between WRC TRADE CENTER
LLC, a Washington limited liability company ("Landlord"), and VISIO CORPORATION,
a Washington corporation ("Tenant").
As parties hereto, Landlord and Tenant agree:
1. LEASE DATA AND EXHIBITS. The following terms as used herein shall
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have the meanings provided in this Section l, unless otherwise specifically
modified by provisions of this Lease:
(a) Building: Known as World Trade Center, East Office Building, or
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such other name as Landlord and Tenant may, pursuant to Section 37(k) below,
designate from time to time, situated on a portion of the real property more
particularly described in Section 2 hereof, with an address of xxx ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. The Building will be constructed above a five-story
parking garage (the "Garage") that is presently being constructed on the Land
and that will be owned by the Port of Seattle. In order to construct the
Building, Landlord will purchase a fee simple interest in the air rights above
the Garage (together with all other rights acquired under the Purchase Agreement
defined below, the "Air Rights"). Although Landlord does not presently own the
Air Rights, Landlord has the right to acquire them pursuant to that certain Air
Rights Purchase and Sale Agreement with the Port of Seattle dated July 14, 1997
(the "Purchase Agreement"). Landlord represents to Tenant that the Purchase
Agreement is the only agreement between Landlord or any of its affiliates and
the Port of Seattle with respect to the Air Rights, and that to Landlord's
knowledge there are no defaults under the Purchase Agreement and it is in full
force and effect. Landlord hereby covenants to fully comply with its
obligations under the Purchase Agreement and to purchase the Air rights, all as
necessary for Landlord to fulfill its obligations hereunder. Notwithstanding
the fact that Landlord does not presently own the Air Rights, Landlord shall be
bound hereunder as though it did presently own them, and upon Landlord's
acquisition of the Air Rights this Lease shall become an encumbrance on the Air
Rights.
(b) Premises: Consisting of the area on Floors one, two, three,
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four, five and six (1,2,3,4,5 and 6) of the Building, as outlined on the floor
plans attached hereto as Exhibit A-1, including tenant improvements, if any, as
described in Exhibit B. The Premises shall be occupied in phases, as described
in Exhibit C. See Exhibit C, Item 1.
(c) Tenant's Pro Rata Share: Landlord and Tenant agree that, for
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purposes of this Lease, the rentable area of the Premises is deemed to be
approximately 183,927 net rentable square feet and Tenant's Pro Rata Share of
the Building is deemed to be 98.48%. See Exhibit C, Item 1. The balance of the
Building will be occupied by a single retail tenant whose space will contain
approximately 2,830 net rentable square feet.
(d) Basic Plans Delivery Date: February 18, 1998.
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(e) Final Plans Delivery Date: May 1, 1998.
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(f) Commencement Date: January 1, 1999, or such later date as
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provided in Section 3 hereof, provided, however that Tenant shall have access
rent-free to the Premises prior to January 1, 1999 for the installation of
furniture and equipment set up and partial phased occupancy, the mutually-
satisfactory schedule of which is to be determined by Landlord and Tenant. The
term "Commencement Date" is more fully defined in Section 3(c).
(g) Expiration Date: Midnight on the day immediately preceding the
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tenth (10th) anniversary of the Commencement Date.
(h) Rent: Commencing on the Commencement Date, Rent is payable
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monthly on or before the first day of each month. Rent for each month of the
Lease term shall be one-twelfth (1/12) of the annual rent calculated by
multiplying the applicable rental rate times the number of rentable square feet
then included within the Premises. See Exhibit C, Item 2.
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(i) Security Deposit: Intentionally omitted.
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(j) Base Year: Intentionally omitted.
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(k) Agency Disclosure: At the signing of this Lease Agreement, the
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Landlord's Leasing Agent, ▇▇▇▇▇▇ Runstad & Company, represented ( X )
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Landlord (__) Tenant or (__) both Landlord and Tenant. The listed Tenant's
agent, ▇▇ ▇▇▇▇▇▇, of Washington Partners (formerly with CB Commercial Real
Estate), represented (__) Landlord, ( X ) Tenant or (__) both Landlord and
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Tenant. Each party signing this document confirms that the prior oral and/or
written disclosure of agency was provided to him/her in this transaction. (As
required by WAC 308-124D-040).
(l) Parking: Tenant shall have the right to purchase up to 228
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permits to park automobiles in the Garage on an unassigned self-park basis at
the prevailing monthly market rates established by the Port of Seattle from time
to time.
(m) Notice Addresses:
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Landlord: WRC TRADE CENTER LLC
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇
Tenant: Prior to Commencement Date:
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Visio Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
After Commencement Date:
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Visio Corporation
[Address of Premises]
Attention: General Counsel
(n) PAYMENT ADDRESS: WRC TRADE CENTER LLC
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▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(o) EXHIBITS: THE FOLLOWING EXHIBITS OR RIDERS ARE MADE A PART OF
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THIS LEASE:
Exhibit A- Legal Description of Land
Exhibit B- Tenant Improvements
Exhibit B-1 Plans and Specifications for Building
Exhibit C- Addendum to Lease
Exhibit D- Base Building Specifications
Exhibit E- Subordination, Attornment and Non-Disturbance
Agreement Form
Exhibit F- Janitorial Specifications
Exhibit G Signage
Exhibit H Shell and Core Costs
Exhibit I Satellite Dish Fees
Exhibit J Multitenant Lobby Floor Plan
Exhibit K Storage Space
2. PREMISES: Landlord does hereby lease to Tenant, and Tenant does
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hereby lease from Landlord, upon the terms and conditions herein set forth, the
Premises described in Section l(b)
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hereof as shown on the Plans referenced in Exhibit B-1 attached hereto and
incorporated herein, together with rights of ingress and egress over common
areas in the Building and, pursuant to easements granted to Landlord, access
through the Garage located on the land ("Land") more particularly described on
Exhibit A attached hereto. This Lease shall be amended to replace Exhibit A with
the legal description of the Air Rights as soon as that legal description has
been determined.
"Net rentable square feet" and "rentable area" as used herein shall mean
"Rentable Area" as defined in BOMA American National Standard Z65.1-1996.
3. CONSTRUCTION; COMMENCEMENT AND EXPIRATION DATES:
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(a) Completion of Construction: Landlord will at its sole cost and
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expense proceed in good faith with all due diligence to:
(i) Complete plans and specifications for the Building,
(ii) Secure the necessary permits from appropriate governmental
authorities to begin construction of the Building, and
(iii) Construct the Building shell and core areas, including all
shell and core mechanical installations, substantially in
accordance with this Lease and the Exhibits hereto. Such
shell and core work is hereinafter referred to as
"Landlord's Work."
Tenant improvements with respect to the Initial Premises ("Initial
Tenant Improvements") shall be constructed pursuant to Tenant's plans for the
Premises approved by Landlord to the extent and in the manner set forth in
Exhibit B, and the Initial Tenant Improvements and any subsequent tenant
improvements are herein called "Tenant Improvements." Landlord shall enter into
the contract with the Initial Tenant Improvement contractor, who shall be
selected in accordance with the provisions of Exhibit B. Tenant is aware that
its selection of an Initial Tenant Improvements contractor other than the
contractor engaged by Landlord to construct the shell and core of the Building
could cause delays in completion of the Initial Tenant Improvements.
(b) Payment for Tenant Improvements: Tenant shall receive from
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Landlord an allowance ("Allowance") of Thirty Five Dollars ($35.00) per square
foot of net rentable area in the Premises as a credit against the Tenant
Improvement work to be performed or paid as follows:
(i) If the Initial Premises (as defined below) includes partial
floors and Tenant wishes to finish the service areas (such as the computer room
and mail room) so as to be able to service the Building when it is fully
occupied, and provided such service areas are not on Floor 2 of the Building,
Landlord will cause such service areas to be fully finished by the Commencement
Date, and Landlord shall pay the full share of the Allowance allocable to such
service areas. Rent and Additional Rent on such service areas shall be as set
forth in Section 2(d) of Exhibit C attached hereto.
(ii) The Allowance may be applied to all costs of design,
architectural, engineering and construction fees; provided the Allowance
allocable to a phase of the Premises upon which construction has not begun shall
not be paid until commencement of Tenant Improvements construction on such
phase. The Allowance shall be paid by Landlord upon receipt of invoices for work
actually performed or materials supplied.
(iii) Any allocable portion of the Allowance not used with
respect to a portion of the Premises shall be paid to Tenant upon demand or
applied to the next phase of the Tenant Improvements.
(iv) All costs of designing and constructing the Tenant
Improvements in excess of the Allowance shall be borne solely by Tenant. If the
budgeted cost of designing or constructing the Tenant Improvements exceeds the
Allowance, all payments for the Tenant Improvements shall be shared by Landlord
and Tenant in proportion to their estimated sharing of the total costs of the
Tenant Improvements. Landlord may adjust that sharing ratio from time to time if
the cost of completing the Tenant Improvements has increased pursuant to change
orders approved by Landlord and Tenant. Such amounts shall be paid by Landlord
and Tenant on a monthly basis no later than the date required under the
construction contract for the Tenant Improvements.
(c) Commencement Date: Landlord and Tenant shall use their best
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efforts to complete the Building and the Initial Tenant Improvements in
accordance with Exhibit B hereto on
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the date specified in Section l(f) or as soon thereafter as practicable. The
"Commencement Date" shall mean the date that the initial portion of the Premises
described in Exhibit C, Section 2 (the "Initial Premises") are substantially
completed and made available for Tenant's occupancy. It is presently estimated
that the term of this Lease shall commence on January 1, 1999.
The determination of the Commencement Date with respect to the
Initial Premises shall depend on which contractor is selected to construct the
Initial Tenant Improvements. If Tenant selects ▇▇▇▇▇▇ Construction, Inc.
("▇▇▇▇▇▇"), the contractor engaged to construct the shell and core of the
Building, Landlord shall cause the Commencement Date to occur by January 1,
1999. If ▇▇▇▇▇▇ is the low bidder for construction of the Initial Tenant
Improvements, in accordance with the terms of Exhibit B, but Tenant chooses
another contractor, the Commencement Date shall be deemed to occur on the date
that it otherwise would have occurred had ▇▇▇▇▇▇ been chosen to construct the
Initial Tenant Improvements. If ▇▇▇▇▇▇ is not the low bidder and Tenant selects
the contractor that is the low bidder, Landlord shall cause the Commencement
Date to occur by March 1, 1999. All of the foregoing dates are subject to the
delay provisions contained in Section 3(d) below. The contractor so selected to
construct the Tenant Improvements shall be hereinafter referred to as the
"Tenant Improvement Contractor."
The Commencement Date with respect to the Initial Premises shall
be deemed to occur on (A) the later of (I) the completion date specified in the
notice ("30 Day Notice") delivered to Tenant at least thirty (30) days prior to
the date that the Initial Premises will be completed for occupancy or (II) the
date the entirety of the Initial Premises is in fact delivered to Tenant with
all of Landlord's Work and the Initial Tenant Improvements substantially
completed, or (B) such earlier date as Landlord would have been able to so
deliver the entire Premises to Tenant but for Tenant Delay (defined below).
Subject to Tenant Delay or other causes beyond Landlord's control, Landlord
shall use its best efforts to deliver the Premises to Tenant no later than the
completion date specified in the 30 Day Notice. Notwithstanding the foregoing,
the Commencement Date shall be deemed to have occurred with respect to the
Initial Premises on the date Tenant first occupies the Initial Premises for
normal business operations, if such date is earlier than the dates described
above, but in no event earlier than January 1, 1999.
The Commencement Date shall not be deemed to occur until the
following conditions shall have been satisfied by Landlord:
(i) The utility and other systems servicing the Building and
necessary for the operation of the Building or Tenant's occupancy and full
enjoyment of the Initial Premises (such as elevators, plumbing, heating,
ventilating, air conditioning, electrical and security systems) shall be
completed and in good order and operating condition except for (A) details of
construction, decoration and mechanical adjustments which do not materially
interfere with Tenant's use of the Initial Premises, and (B) any part thereof
the non-completion of which shall be due to Tenant Delay;
(ii) Landlord (A) shall have obtained a temporary Certificate
of Occupancy for the Initial Premises, or (B) would have been entitled to the
issuance of a temporary Certificate of Occupancy for the Initial Premises, but
for Tenant Delay;
(iii) The lobby of the Building and the entrances and public
portions (including the Garage, but excluding all retail space), stairways,
corridors and elevators (including freight elevators) of the Building, shall
have been finished (except for details of construction, decoration and
mechanical adjustments which do not materially detract from the appearance of
such areas or materially interfere with their use for normal purposes) and shall
be in a clean and orderly condition affording reasonable access to all portions
of the Initial Premises, or would be in such condition but for Tenant Delay; and
(iv) The exterior of the Building (including the installation of
glass therein) shall have been completed except for (A) minor portions thereof
which in the aggregate do not materially affect Tenant's use of the Premises,
(B) all retail space, and (C) any part thereof the non-completion of which shall
be due to Tenant Delay.
As used herein, the term "Tenant Delay" shall mean, as to any
delay experienced by Landlord in its work on the Building or the Tenant
Improvements, (a) any interference or delay caused by occurrences within the
reasonable control of Tenant; (b) any delay caused by Tenant's failure or
refusal to furnish plans, or approve or disapprove plans for the Tenant
Improvements, within the periods set out in Exhibit B; (c) any delay
attributable to changes in or additions to Landlord's plans requested by Tenant;
or (d) any other delay in acts of Tenant required under Exhibit B, provided that
the foregoing clauses (a) through (d) shall apply only to the extent that
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such delay impedes or otherwise adversely affects Landlord's work or schedule
for preparing the Premises for occupancy. Landlord shall notify Tenant as soon
as reasonably possible when Landlord becomes aware of an event constituting
Tenant Delay.
As used herein, the term "Landlord Delay" shall mean, as to any
delay experienced by Tenant in its work on Tenant Improvements, (a) any
interference or delay caused by occurrences within the reasonable control of
Landlord, or (b) any delay caused by Landlord's failure or refusal to either
approve or disapprove Tenant's plan for Tenant Improvements, or to furnish
plans, as and within the time periods specified in Exhibit B hereto, or (c) any
delay attributable to changes in or additions to Tenant's plans requested by
Landlord or on account of interference by Landlord or its contractors, employees
or agents, or (d) any delay in Landlord or Landlord's contractor giving
approvals, consents, prices or quotes, or taking other action with respect to
Tenant's improvements, all as required or contemplated under Exhibit B; provided
that the foregoing clauses (a) through (d) shall apply only to the extent that
such delay impedes or otherwise adversely affects Tenant's work or schedule for
preparing the Premises for occupancy. Tenant shall notify Landlord as soon as
reasonably possible when Tenant becomes aware of an event constituting Landlord
Delay.
The occurrence of the Commencement Date prior to the completion in
full of all work required to be performed by Landlord as provided herein shall
not relieve Landlord of its obligation thereafter to complete the same with due
dispatch and in a workmanlike manner. Without waiving any rights of Tenant,
Landlord, Tenant, and Landlord's and Tenant's architects shall prepare within
thirty (30) days after the Commencement Date or as soon thereafter as
practicable a "punch-list" which shall consist of the items that have not been,
but should have been, finished or furnished by Landlord in the Premises. Upon
presentation of such punch-list to Landlord, Landlord shall, with all due
diligence, proceed to complete and furnish all punch-list items. If such items
relate to shell and core work, they shall be completed at Landlord's sole cost
and expense. If such items relate to Tenant Improvements, they shall be paid in
the same manner that the costs of Tenant Improvements are paid. If within thirty
(30) days after presentation of the punch-list, Landlord shall not have
commenced, and be proceeding with due diligence, to complete and furnish such
items, or if Landlord thereafter fails to prosecute its work to completion with
due diligence, Tenant may deliver written notice of such failure to Landlord,
and if Landlord does not commence and proceed with due diligence to complete
such work within ten (10) days after Landlord's receipt of such notice, Tenant
may complete such items and, to the extent Landlord is responsible for such
costs as set forth above, Landlord will reimburse Tenant upon demand for the
reasonable costs incurred by Tenant for such work. If such costs are properly
chargeable to Landlord and are not paid within ten (10) days after demand, such
costs shall be credited to and deducted from Tenant's next monthly installments
of Rent and Additional Rent payable hereunder as an offset against such amounts
owing by Tenant. Any such punch-list items which do not materially interfere
with Tenant's enjoyment of the portion of the Premises involved shall not delay
the Commencement Date with respect thereto.
Landlord shall promptly correct all defects in Landlord's Work and
Tenant Improvement work performed by the Tenant Improvement Contractor, and all
failures of such work to conform to the plans and specifications for such work
which have been agreed upon by Landlord and Tenant, which defects or non-
conformities are discovered before or within one year after the date upon which
Tenant first occupies the applicable portion of the Premises. Landlord shall
bear all costs of correcting Landlord's Work and, to the extent caused by the
act or omission of Landlord, Tenant Improvement work performed by the Tenant
Improvement Contractor. Landlord and Tenant shall each give the other prompt
written notice after discovering the existence of any such defects or non-
conformities in Landlord's work and Tenant Improvement work performed by the
Tenant Improvement Contractor.
(d) Delays: In the event, due to delays from any cause other than
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Tenant Delay, the Initial Premises are not available for occupancy by Tenant and
the Commencement Date shall not have occurred within five (5) months following
the date specified in Section 1(f) (provided, however, that such five (5) month
period shall be extended for no more than an additional four (4) months for
delays due to causes beyond the reasonable control of Landlord, or longer if
such delays are due to Tenant Delay), then:
(i) Landlord shall use its reasonable best efforts to provide or
secure for Tenant alternative space or expansion space as required by Tenant,
such space to be within the downtown Seattle area and reasonably acceptable to
Tenant, and Landlord shall pay to the landlord of such alternative or expansion
space (whether such space is provided or secured by Landlord or through Tenant's
own efforts) the differential in base rent and additional rent required over the
amount of base rent and additional rent that Tenant would have otherwise paid in
the Premises had such delay not occurred;
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(ii) Landlord shall pay, and shall indemnify, defend and hold
Tenant harmless from and against, any holdover rent premiums or other rent
differential (excluding nominal base rent and any consequential damages payable
to Tenant's current landlords) accruing from and after the date Landlord is
obligated to deliver the completed Initial Premises to Tenant, subject to the
extensions described above; and
(iii) Landlord shall pay all third party costs of a second move,
if required by Tenant, which costs shall include without limitation cabling and
utility installation costs in any alternative or expansion space into which
Tenant moves pending completion of the Premises.
The five (5) and four (4) month extension periods referred to in this
Section 3(d) above shall be cumulative with, and not in addition to, the five
(5) and (4) month extension periods referred to in Section 4(a) below. For
example, a three (3) month delay in commencing construction will reduce the
extension period available to Landlord for substantial completion on the Initial
Premises to two (2) months (assuming both delays were due to causes within
Landlord's control).
(e) Confirmation of Commencement Date: In the event the
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Commencement Date is established as a later or earlier date than the date
provided in Section l(f) hereof, Landlord and Tenant shall confirm the same in
writing.
(f) Expiration Date: This Lease shall expire on the date specified
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in Section l(g).
4. TERMINATION; CONDITIONS PRECEDENT:
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(a) Landlord anticipates that commencement of construction (as defined
in Section 4(b)) on the Building shall occur on or before May 5, 1998. If
Landlord has not commenced construction of the Building by the date five (5)
months after such date (provided, however, that such five (5)-month period shall
be extended for no more than an additional four (4) months for delays due to
causes beyond the reasonable control of Landlord, or longer if such delays are
due to Tenant Delay), then, in such event, at its option, either Landlord or
Tenant may, by notice in writing to the other within thirty (30) days
thereafter, terminate this Lease without liability to the other, except as
hereinafter provided. Termination under this Section 4(a) shall be the sole
remedy at law or equity of Landlord and Tenant, except that, in the event of
such termination, Landlord shall reimburse Tenant for Tenant's documented third
party out-of-pocket expenses incurred in connection with designing the Tenant
Improvements (including engineering, architectural, programming, legal and
project management) but excluding any such costs incurred prior to October 1,
1997 (the date of execution of the Letter of Intent with respect to this Lease).
(b) For the purposes of this Lease, "commencement of construction,"
"commenced construction," construction has commenced," "commencement of
construction has occurred" and "commencing construction" shall mean Landlord has
acquired the Air Rights and has commenced work pursuant to a building permit for
work defined in the construction documents for the Building. Landlord
represents to Tenant that Landlord has obtained the Master Use Permit from the
City of Seattle for construction of the Building.
5. RENT AND ADDITIONAL RENT: Tenant shall pay Landlord without notice
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the Rent stated in Section l(h) hereof and Additional Rent as provided in
Section 9 and Section 10 and any other payments due under this Lease without
deduction or offset (except as otherwise set forth in this Lease) in lawful
money of the United States in advance on or before the first day of each month
at Landlord's Payment Address set forth in Section 1(n) hereof, or to such other
party or at such other place as Landlord may hereafter from time to time
designate in writing. Rent and Additional Rent for any partial month at the
beginning or end of the Lease term shall be prorated in proportion to the number
of days in such month. All amounts which Tenant assumes or agrees to pay to
Landlord pursuant to this Lease other than Rent shall be deemed Additional Rent
hereunder and, in the event of nonpayment thereof, Landlord shall have all
remedies provided for in the case of nonpayment of Rent.
6. SECURITY DEPOSIT: Intentionally omitted.
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7. PARKING: Use of parking in the Garage by Tenant shall be subject to
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such reasonable rules and regulations as the Port of Seattle or its parking
operator, or the City of Seattle, Washington may publish from time to time.
Tenant shall provide Landlord with thirty (30) days prior written notice of the
number of parking permits required by Tenant from time to time, up to the
maximum number specified in Section 1(l) and of any changes in those
requirements. Short-term hourly parking shall be offered on a space available
basis during Normal Business Hours (as defined
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in Section 9(b)), except Saturdays, Sundays or legal holidays, for Tenant's
clients and customers. Landlord has confirmed with the Port of Seattle that the
Port will install a card key system in the Garage and Building, at Landlord's
cost, which will allow Tenant's employees who are not monthly parkers to have
access to the Garage and Building seven days per week, 24 hours per day at
market rates.
8. USES: The Premises are to be used only for general office purposes,
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software research, development and testing, training, travel arrangements,
internet broadcasting and other uses incident thereto, including but not limited
to the operation of a day care, cafeteria, and physical fitness facility
("Permitted Uses"), and for no other business or purpose without the prior
written consent of Landlord, which consent may be withheld if Landlord, in its
reasonable discretion, determines that any proposed use is inconsistent with or
detrimental to the maintenance and operation of the Building as a first-class
office building or is inconsistent with any restriction on use of the Premises,
the Building, or the Land contained in any lease, mortgage, or other instrument
or agreement by which the Landlord is bound or to which any of such property is
subject. In consideration of the possibility that the Building may at some
point in the future become a multi-tenanted building, Landlord's approval, not
to be unreasonably withheld, shall be required in locating and, if applicable,
relocating, the day care center, cafeteria, and physical fitness center so as to
minimize the possible noise and traffic disturbance to other occupants of the
Building. Landlord represents that the use of the Premises for general office
purposes is permitted by law and is consistent with all such restrictions as of
the date of this Lease. Tenant shall not commit any act that will increase the
then existing cost of insurance on the Building without Landlord's consent.
Tenant shall promptly pay upon demand the amount of any increase in insurance
costs caused by any act or acts of Tenant. Tenant shall not commit or allow to
be committed any waste upon the Premises, or any public or private nuisance or
other act which disturbs the quiet enjoyment of any other tenant in the Building
or which is unlawful. Tenant shall not, without the written consent of
Landlord, use any apparatus, machinery or device in or about the Premises which
will cause any substantial noise, vibration or fumes (but Landlord acknowledges
that Tenant may install, maintain and test weekly a diesel generator in the
Building for emergency back-up use). Tenant shall not permit smoking in the
Premises; Landlord has designated all internal portions of the Building as a
smoke-free zone. If any of Tenant's office machines or equipment should disturb
the quiet enjoyment of any other tenant in the Building, then Tenant shall
provide adequate insulation, or take other action as may be necessary to
eliminate the disturbance. Tenant shall comply with all laws relating to its
use or occupancy of the Premises, including without limitation any laws relating
to Tenant's modification of the Premises, and shall observe such reasonable
rules and regulations (not inconsistent with the terms of this Lease) as may be
adopted and made available to Tenant by Landlord from time to time for the
safety, care and cleanliness of the Premises or the Building, and for the
preservation of good order therein.
9. SERVICES AND UTILITIES:
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(a) Standard Services: Landlord shall maintain or cause to be
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maintained in good order and repair and first-class condition and in accordance
with the janitorial specifications attached hereto as Exhibit F, the Premises
and the core area of the Building, the structural portions of the Building,
including elevators, plumbing, air conditioning, heating and electrical system,
and the public and common areas of the Building, including lobbies, elevators,
stairs, corridors and restrooms, except for fire and other casualty, including
acts of God, and subject to the provisions of Section 13 pertaining to the
repair or rebuilding of damaged or destroyed property. Landlord shall also
maintain and keep in good order and repair the following in the Building: roof,
curtain wall including but not limited to all glass connections at the perimeter
of the Building, all exterior doors, including any exterior plate glass within
the Building, exterior surfaces of the Building (including but not limited to
glass, stone and other material(s)), ventilating systems, elevators, janitor
closets, escalators, telephone and electrical closets, public portions of the
Building, balconies, landscaping, walkways, and, other than Tenant improvements,
other interior portions of the Building above and below grade. Landlord
covenants and agrees that alterations, repairs or additions shall be done with
the least amount of interference to Tenant, and, to the extent possible, such
work shall be done after Normal Business Hours. Nothing contained herein shall
be deemed to excuse or relieve Landlord from any liability for the negligence or
willful misconduct of Landlord, its officers, agents, servants, employees,
contractors, licensees or invitees. If Landlord fails to commence any repairs
hereunder within five (5) business days after receipt of written notice from
Tenant and thereafter diligently proceed to complete any repairs required to be
made by Landlord under this Lease, Rent and Additional Rent shall thereafter
▇▇▇▇▇ to the extent the Premises are rendered unusable for Tenant's normal
business operations as a result of such failure to make repairs.
Each floor of the Building shall have two electrical closets. Each
closet shall contain a 42 circuit panelboard (277/480-volt) serving mainly
lighting and VAV boxes. In addition,
B-7
each closet will contain a 75kVA transformer feeding a 84 circuit panelboard
(120/208-volt) for service to convenience outlets. Landlord shall also provide
lamp replacement service for building standard light fixtures, toilet room
supplies and window washing at reasonable intervals.
(b) Normal Business Hours: From 7:00 a.m. to 8:00 p.m. on weekdays
---------------------
and from 8:00 a.m. to 2:00 p.m. on Saturdays, excluding legal holidays ("Normal
Business Hours"), Landlord shall furnish to the Premises heat and air
conditioning sufficient to maintain a comfortable interior temperature range
between 69 and 72 degrees Fahrenheit. Landlord shall provide 24-hour per day
HVAC service in the telephone and computer rooms pursuant to final construction
documents; the capacity for which service shall be paid for by Tenant from the
Tenant Allowance described in Exhibit B. If requested by Tenant, Landlord shall
furnish heat and air conditioning at times other than Normal Business Hours and
the actual cost of such services shall be paid by Tenant as Additional Rent.
During other than Normal Business Hours, Landlord may restrict access to the
Building in accordance with the Building's security system, provided that Tenant
shall have at all times during the term of this Lease (24 hours of all days)
reasonable access to the Premises. The Normal Business Hours may be modified
from time to time upon the mutual agreement of Landlord and Tenant.
(c) Interruption of Services: Landlord shall not be liable for any
------------------------
loss, injury or damage to person or property caused by or resulting from any
variation, interruption, or failure of any services or facilities provided by
Landlord pursuant to this Lease due to any cause whatsoever, unless such
variation, interruption or failure was due to the negligence or willful
misconduct of Landlord, its officers, agents, servants, employees, contractors,
licensees or invitees. No temporary interruption or failure of such services or
facilities incident to the making of repairs, alterations, or improvements, or
due to accident, strike or conditions or events beyond Landlord's reasonable
control shall be deemed an eviction of Tenant or relieve Tenant from any of
Tenant's obligations hereunder; provided, however, if such interruption or
failure shall continue for five (5) business days, Tenant's Rent hereunder shall
thereafter ▇▇▇▇▇ to the extent the Premises are thereby rendered untenantable
for Tenant's normal business operations until such services are restored.
Landlord shall use its best efforts in good faith to respond quickly to any
interruption of services and to minimize any disruption of Tenant's use of the
Premises arising from any interruption or failure of such services or
facilities.
(d) Additional Services: The Building mechanical system is designed
-------------------
to accommodate heating loads generated by lights and equipment using up to 4.6
▇▇▇▇▇ per square foot (1.2 ▇▇▇▇▇ per foot for lights and 3.4 ▇▇▇▇▇ per foot for
equipment). Before installing lights and equipment in the Premises which in the
aggregate exceed such amount, Tenant shall obtain the written permission of
Landlord. Landlord may refuse to grant such permission unless Tenant shall
agree to pay the costs of Landlord for installation of supplementary air
conditioning capacity or electrical systems as necessitated by such equipment or
lights.
10. COSTS OF OPERATIONS AND REAL ESTATE TAXES:
-----------------------------------------
(a) Additional Rent: Tenant shall pay as Additional Rent its Pro
---------------
Rata Share of Taxes and Operating Costs. Taxes and Operating Costs shall be
determined and shall be payable separately in accordance with the provisions of
this Section 10.
(b) Definitions:
-----------
(i) For the purposes of this section, "Taxes" shall mean taxes
and assessments (including special district levies) on real and personal
property payable during any calendar year, based on the actual assessment
period, with respect to the Land, the Building and all property of Landlord,
real or personal, used directly in the operation of the Building and located in
or on the Building, together with any taxes levied or assessed in addition to or
in lieu of any such taxes or any tax upon leasing of the Building or the rents
collected (excluding any net income or franchise tax) ("Taxes").
(ii) For purposes of this Section, "Operating Costs" or "Costs"
shall mean all reasonable and customary expenses of Landlord for maintaining,
operating and repairing the Building and the personal property used in
connection therewith, including without limitation insurance premiums,
utilities, market rate management fees (not to exceed four percent (4%) of the
Rent and Additional Rent) and other expenses which in accordance with generally
accepted accounting and management practices would be considered an expense of
maintaining, operating or repairing the Building ("Operating Costs" or "Costs");
excluding, however: (I) costs of any special services rendered to individual
tenants for which a separate charge is collected; (II) leasing commissions and
other leasing expenses; (III) costs of improvements required to be capitalized
in accordance with generally accepted accounting principles, except Operating
Costs shall include amortization of capital improvements (A) made subsequent to
initial development of the Building
B-8
which are designed with a reasonable probability of improving the operating
efficiency of the Building, or providing savings in the cost of operating the
Building or, (B) which are reasonably responsive to requirements imposed with
respect to the Building under any amendment to any applicable building, health,
safety, fire, nondiscrimination, or similar law or regulation ("law"), or any
new law, or any new interpretation of an existing law ("new interpretation"),
which amendment, law or new interpretation is adopted or arose after the
Commencement Date of this Lease (for purposes of this Lease, a new
interpretation shall mean any interpretation, enforcement or application of a
law enacted prior to the Commencement Date that imposes requirements with
respect to the Building that Landlord in the exercise of sound business judgment
and good faith at the time of Landlord's execution of this Lease would not have
deemed applicable to the Building); (IV) executives' salaries above the grade of
Building manager; (V) amounts received by Landlord through proceeds of insurance
to the extent the proceeds are compensation for expenses which were previously
included in Operating Costs hereunder; (VI) cost of repair or replacements
incurred by reason of fire or other casualty or by the exercise of the right of
eminent domain; (VII) consulting fees, marketing fees, advertising and
promotional expenditures; (VIII) legal fees in connection with the negotiation
and preparation of leases of space or legal fees in connection with the sale of
all or any portion of the Building in which the Premises are located, or an
interest therein, or the financing or refinancing of Landlord's interest in all
or any portion of the Building in which the Premises are located, or in
connection with disputes with tenants, and legal and auditing fees, other than
legal and auditing fees reasonably incurred in connection with the maintenance
and operation of all or any portion of such Building or in connection with the
preparation of the statements required pursuant to additional rent or lease
escalation provisions contained in leases of space in such Building; (IX)
depreciation or loan payments; (X) costs resulting from the correction of any
latent construction defects in all or any portion of the Premises or Building;
(XI) penalties due to any violation of law by Landlord or other tenants; (XII)
costs of preparing tenant space for tenant occupancy; (XIII) costs allocable to
properties in which Landlord has an interest other than the Building; (XIV)
damages incurred by Landlord for any default, breach, claim, judgment or
settlement; (XV) structural replacements (including replacements to the roof and
foundations).
(iii) "Year" shall mean the calendar year.
(c) Estimated Costs: At least sixty (60) days prior to the
---------------
beginning of each Year, Landlord shall furnish Tenant a written statement of
estimated Operating Costs and Taxes for such year and a calculation of Tenant's
Pro Rata Share of the Operating Costs and Taxes. Tenant shall pay one-twelfth
(1/12) of that amount as Additional Rent for each month during the Year. If at
any time during the Year Landlord reasonably believes that the actual Operating
Costs or Taxes will vary from such estimated Operating Costs or Taxes by more
than five percent (5%), Landlord may by written notice to Tenant revise the
estimate for such year, and Additional Rent for the balance of such Year shall
be paid based upon such revised estimates. Landlord and Tenant may also agree
that Tenant will pay certain Operating Costs directly to the provider thereof.
(d) Actual Costs: Within ninety (90) days after the end of each
------------
Year, Landlord shall deliver to Tenant a written statement setting forth
Tenant's Pro Rata Share of the actual Operating Costs and Taxes during the
preceding Year. If the actual Operating Costs or actual Taxes, or both, exceed
the estimates for each paid by Tenant during the Year, Tenant shall pay the
amount of such excess to Landlord as Additional Rent within thirty (30) days
after receipt of such statement. If the actual Operating Costs or actual Taxes,
or both, are less than the amount paid by Tenant to Landlord, then the amount of
such overpayment by Tenant shall be, at Landlord's option, credited against any
amounts owed by Tenant under this Lease, refunded by check to Tenant, or
credited against the next Rent payable by Tenant hereunder. Notwithstanding this
Section 10, the Rent payable by Tenant shall in no event be less than the Rent
specified in Section 1(h) hereof.
(e) Records and Adjustments: Each written statement of actual costs
-----------------------
given by Landlord to Tenant pursuant to Section 10(d) shall be conclusive and
binding upon Tenant unless within ninety (90) days after the receipt of such
statement Tenant shall notify Landlord in writing that it disputes the
correctness of the statement, specifying the particular respects in which the
statement is claimed to be incorrect. If such disputes shall not have been
settled by agreement, Tenant, within thirty (30) days of receipt of such
statement, shall pay Additional Rent in accordance with the statement, without
prejudice to Tenant's favor. If the dispute shall be determined in Tenant's
favor, Landlord shall forthwith pay to Tenant the amount of Tenant's overpayment
of rents resulting from compliance with the statement. Tenant may, within ninety
(90) days after the receipt of such statements, upon thirty (30) days prior
notice to Landlord, cause a complete audit to be made of Landlord's records
regarding Operating Costs for the prior Year. If the audit discloses that
Operating Costs have been over-reported to the extent of five percent (5%) or
more on an annual basis for such
B-9
Year, Landlord shall pay the reasonable costs of the audit and actual Operating
Costs for that Year shall be adjusted accordingly.
(f) Personal Property Taxes: Tenant shall pay all personal property
-----------------------
taxes with respect to property of Tenant located on the Premises or in the
Building. "Property of Tenant" shall include all improvements which are paid
for by Tenant and "personal property taxes" shall include all property taxes
assessed against the property of Tenant, whether assessed as real or personal
property.
(g) Net Lease: This Lease shall be a net lease and base Rent shall
---------
be paid to Landlord absolutely net of all costs and expenses. The provisions
for payment of Tenant's Pro Rata Share of Taxes and Operating Costs are intended
to pass on to Tenant and reimburse Landlord for all costs and expenses of the
nature described in Section 10(b)(i) and (ii) incurred in connection with
ownership and operation of the Building.
(h) Contest of Taxes; Substantiation of Taxes: Landlord shall, if
-----------------------------------------
Tenant so requests, take all reasonable action necessary to preserve the right
to contest any Taxes, including paying them under protest, and shall consult
with Tenant, and act in good faith to contest or seek recovery of Taxes if and
to the extent such action is reasonable. Any payment of Taxes by Tenant either
directly or by way of reimbursement to Landlord pursuant to any provision of
this Lease shall be, whenever such Taxes have not been directly assessed against
Tenant, subject to appropriate substantiation by Landlord upon the request of
Tenant. All costs incurred by Landlord in any such contest, including
attorneys' fees and court costs, shall be considered Taxes for purposes of this
Lease.
11. CARE OF PREMISES; ALTERATIONS: Landlord shall perform all normal
-----------------------------
maintenance and repairs reasonably determined by Landlord, or as notified by
written notice from Tenant, as necessary to maintain the Premises and the
Building as a first-class office building; provided that Landlord shall not be
required to maintain or repair any property of Tenant or any appliances (such as
refrigerators, water heaters, microwave ovens, and the like) which are part of
the Premises. Tenant shall take good care of the Premises.
Tenant shall not make any alterations, additions or improvements which
constitute a structural change to the Building or the HVAC system, electrical
service or plumbing system ("Alterations") in or to the Premises, or make
changes to wiring affecting Building-wide systems ("Changes") without first
obtaining the written consent of Landlord (which shall not be unreasonably
withheld) and, where appropriate, in accordance with plans and specifications
reasonably approved by Landlord. As a condition to its approval, and only if so
stated in writing at the time of such approval, Landlord may require Tenant to
remove any such Alterations or Changes which are not designed in a normal or
standard office configuration upon the expiration or earlier termination of the
Term and to restore the Premises to the condition they were in prior to such
Alterations or Changes, including restoring any damage resulting from such
removal, all at Tenant's expense. Tenant shall reimburse Landlord for any
reasonable out-of-pocket sums expended for examination and approval of the
architectural and mechanical plans and specifications of the Alterations and
Changes (provided that Landlord shall have given Tenant a good faith estimate of
such sums in advance) and direct costs reasonably incurred during any inspection
or supervision of the Alterations or Changes. All damage or injury done to the
Premises or Building by Tenant or by any persons who may be in or upon the
Premises or Building with the express or implied consent of Tenant, including
but not limited to the cracking or breaking of any glass of windows and doors,
shall be paid for by Tenant.
Tenant may make nonstructural alterations, additions or improvements
to the interior of the Premises, including wiring within the Premises,
nonstructural partitioning, and painting and redecorating, without the necessity
of obtaining Landlord's consent, provided in all such cases (other than cabling,
painting or decoration solely within the Premises) Tenant shall give Landlord
five (5) business days' prior written notice of such modifications. Any such
alterations, additions or improvements shall be installed by Tenant at its sole
cost and in compliance with all laws, orders and regulations of any applicable
governing body and Tenant at its expense shall furnish to Landlord drawings for
such work to enable the Building's record drawings to be updated to reflect such
changes.
12. ACCESS:
------
(a) Tenant shall permit Landlord and its agents to enter into and upon
the Premises at all reasonable times, on reasonable prior notice, for the
purpose of inspecting the same or for the purpose of cleaning, repairing,
altering or improving the Premises or the Building. Upon reasonable notice, and
subject to Tenant's reasonable consent, Landlord shall have the right to enter
the Premises for the purpose of showing the Premises to prospective tenants
within the period of one hundred eighty (180) days prior to the expiration or
sooner termination of the Lease term.
B-10
(b) Tenant currently intends that the Building be limited to Tenant's
sole use and therefore Tenant reserves the right to direct Landlord to prohibit
public access to or from the Garage through the Building lobby. If Tenant
exercises such right, such restriction shall remain effective as long as Tenant
occupies (or has the right to occupy and no other party has been given such
right) one hundred percent (100%) of the rentable area of the Building,
excluding only the retail tenant on the first floor of the Building and any
subtenants of Tenant which are suppliers or customers. Upon the request of
Tenant, Landlord shall attempt to obtain the right to (i) post signs at
appropriate locations in the Garage which direct Garage users to ▇▇▇▇▇▇▇ Avenue
and the ▇▇▇▇ Street Overpass, and (b) post appropriate signs at Levels P-1 and
P-M in the Garage.
13. DAMAGE OR DESTRUCTION:
---------------------
(a) Landlord Obligated to Repair: If the Building or the Premises
----------------------------
shall be materially damaged or destroyed by fire or other casualty to the extent
that the cost of restoration, as reasonably estimated by Landlord, will be less
than fifty percent (50%) of the replacement value of the Building (exclusive of
foundations) and Landlord has available insurance proceeds (or a like recovery
of funds) with respect thereto, and such damage or destruction can be repaired
or replaced under then applicable laws and ordinances, Landlord shall promptly
commence and diligently proceed to repair or replace such damage or destruction.
If Landlord so repairs or replaces such damage the term of this Lease shall
continue, subject, however, to the provisions of Sections 13(c) and (d).
(b) Landlord Not Obligated to Repair: If the Building or the
--------------------------------
Premises shall be materially damaged or destroyed by fire or other casualty and
Section 13(a) is not applicable, Landlord shall not be obligated to, but may
repair or replace such damage. If Landlord elects to repair or replace, and
promptly commences and diligently proceeds to do so, the term of this Lease
shall continue, subject, however, to the provisions of Sections 13(c) and (d).
If Landlord elects not to repair or replace, the term of this Lease shall end
with the occurrence of the damage or destruction and rental and other payments
owing by Tenant hereunder shall be prorated as of such date.
(c) Elections and Determinations: Landlord shall provide Tenant
----------------------------
with written notice of its determination of the extent of the damage and, if
Landlord has the option to repair or rebuild, whether or not Landlord will
repair or rebuild. Such notice shall be delivered within sixty (60) days after
the damage occurs, or as soon thereafter as Landlord determines the availability
of insurance proceeds, but in no event later than 120 days after the damage
occurs. If Landlord intends to repair or rebuild, the notice shall also include
an estimated date for completion of rebuilding. If such date is later two
hundred seventy (270) days following the casualty, or if Landlord fails to
deliver such notice within the 120 day period specified above, then Tenant at
its option may terminate the Lease by providing Landlord with written notice
within fifteen (15) days after Tenant's receipt of Landlord's notice or
expiration of such 120 day period.
(d) Repair Duties: In any case described in Sections 13(a) or (b)
-------------
where the damage or destruction to the Premises is being repaired or replaced,
Tenant shall repair or replace the Tenant improvements involved to the extent
legally permissible, and Landlord and Tenant shall share the expense thereof in
the same proportion and same manner as they shared the expenses of the
installation of the original Tenant improvements. All rebuilding and repair
contemplated by this Section 13 shall be in conformity with this Lease, except
Tenant may elect to change the standards and details of the Tenant improvements
as it may see fit (so long as the same are not inconsistent with the
requirements of Exhibit B), and Tenant shall bear any additional cost resulting
from such changes.
(e) Abatement of Rent: During the period between the occurrence of
-----------------
any loss, damage or destruction referred to in this Section 13 and the
completion of repair or reconstruction of such loss or damage, this Lease shall
continue in full force and effect (except as provided above), but payment of
rent and other charges payable by Tenant hereunder for the space affected by
such loss, damage or destruction shall be abated during such period of repair or
reconstruction in fair and just proportion to the portion of the Premises for
which normal and usual utilization by Tenant is made impractical.
(f) Repair or Reconstruction After Loss Which is Not Material:
---------------------------------------------------------
Landlord shall be obligated to promptly commence and shall thereafter diligently
proceed to repair any damage or destruction to the Building which is not
material or is required or elected to be repaired hereunder.
(g) Destruction During Last Year of Term: In case the Building
------------------------------------
shall be materially destroyed by fire or other cause at any time during the last
twelve months of the term of this Lease, either Landlord or Tenant may terminate
this Lease upon written notice to the other party hereto given within sixty (60)
days of the date of such destruction.
B-11
(h) Tenant Improvements: Landlord will not carry insurance of any
-------------------
kind on any improvements paid for by Tenant as provided in Exhibit B or on
Tenant's furniture or furnishings or on any fixtures, equipment, improvements or
appurtenances of Tenant under this Lease and Landlord shall not be obligated to
repair any damage thereto or replace the same.
14. WAIVER OF SUBROGATION: Whether a loss or damage is due to the
---------------------
negligence of either Landlord or Tenant, their agents or employees, or any other
cause, Landlord and Tenant do each hereby release and relieve the other, their
agents or employees, from responsibility for, and waive their entire claim of
recovery for (a) any loss or damage to the real or personal property of either
located anywhere in the Building or on the Land, including the Building itself,
arising out of or incident to the occurrence of any of the perils which are
covered by their respective insurance policies; and (b) any loss resulting from
business interruption at the Premises or loss of rental income from the
Building, arising out of or incident to the occurrence of any of the perils
which are covered by a business interruption insurance policy or loss of rental
income insurance policy held by Landlord or Tenant. Each party shall cause its
insurance carriers to consent to the foregoing waiver of rights of subrogation
against the other party. Notwithstanding the foregoing, no such release shall
be effective unless the aforesaid insurance policy or policies shall expressly
permit such a release or contain a waiver of the carrier's right to be
subrogated.
15. INDEMNIFICATION:
---------------
(a) Tenant shall indemnify, defend and hold Landlord harmless from and
against liabilities, damages, losses, claims, and expenses, including reasonable
attorneys fees, arising from any act or negligence of Tenant or its officers,
contractors, licensees, agents, employees, clients or customers in or about the
Building or Premises or arising from any breach or default under this Lease by
Tenant. The foregoing provisions shall not be construed to make Tenant
responsible for loss, damage, liability or expense resulting from injuries to
third parties caused by the negligence or willful misconduct of Landlord, or its
officers, contractors, licensees, agents, employees, clients or customers or
other tenants of the Building.
(b) Landlord shall indemnify, defend and hold Tenant harmless from and
against all liabilities, damages, losses, claims, and expenses, including
reasonable attorneys' fees arising from any act or negligence of Landlord or its
officers, contractors, licensees, agents, employees, clients, or customers in or
about the Building or Premises, or arising from any breach or default under this
Lease by Landlord. Landlord shall not be liable for any act or neglect of
Tenant or any other tenant or occupant of the Building or any third parties. In
no event shall Landlord be liable to Tenant for any damage to the Premises or
for any loss, damage or injury to any property therein or thereon occasioned by
bursting, rupture, leakage or overflow of any plumbing or other pipes
(including, without limitation, water, steam and/or refrigerant lines),
sprinklers, tanks, drains, drinking fountains or washstands or other similar
cause in, above, upon or about the Premises or the Building, unless due to the
negligence or willful misconduct of Landlord or its officers, contractors,
licensees, agents, employees, clients or customers.
16. INSURANCE:
---------
(a) Liability Insurance: Tenant shall, throughout the term of this
-------------------
Lease and any renewal hereof, at its own expense, keep and maintain in full
force and effect, a policy of commercial general liability (occurrence form)
insurance, including contractual liability insuring Tenant's activities upon, in
or about the Premises or the Building, against claims of bodily injury or death
or property damage or loss with a combined single limit of not less than Three
Million Dollars ($3,000,000) per occurrence and Five Million Dollars
($5,000,000) in the aggregate. Landlord and the Building manager shall be named
as additional insureds.
(b) Property Insurance: Tenant shall, throughout the term of this
------------------
Lease and any renewal thereof, at its own expense, keep and maintain in full
force and effect, what is commonly referred to as "All Risk" or "Special"
coverage insurance (excluding earthquake and flood) on the Tenant Improvements
in an amount not less than ninety percent (90%) of the replacement value thereof
with a coinsurance waiver. As used in this Lease, "Tenant's Leasehold
Improvements" shall mean any alterations, additions or improvements installed in
or about the Premises by or with Landlord's permission or otherwise permitted by
this Lease, whether or not the cost thereof was paid for by Tenant.
(c) Insurance Policy Requirements: All insurance required under
-----------------------------
this Section 16 shall be with companies rated AX or better by A.M. Best or
otherwise reasonably approved by Landlord. No insurance policy required under
this Section 16 shall be canceled or
B-12
reduced in coverage except after thirty (30) days prior written notice to
Landlord, except after ten (10) days prior written notice to Landlord in the
case of non-payment of premium.
(d) Certificate of Insurance: Tenant shall deliver to Landlord
------------------------
prior to the Commencement Date, and from time to time thereafter, copies of
policies of such insurance or certificates evidencing the existence and amounts
of same and evidencing Landlord and the Building manager as additional insureds
thereunder. In no event shall the limits of any insurance policy required under
this Section 16 be considered as limiting the liability of Tenant under this
Lease.
(e) Primary Policies: All policies required under Section 16(a)
----------------
shall be written as primary policies and not contributing to or in excess of any
coverage Landlord may choose to maintain.
(f) Landlord's Insurance: Landlord shall procure and maintain
--------------------
commercial general liability insurance with broad form general liability
endorsement covering all claims with respect to injuries or damages to persons
or property sustained in, on or about the Building and the appurtenances
thereto, including the sidewalks and alleyways adjacent thereto, with limits of
liability no less than five million dollars ($5,000,000) combined single limit
per occurrence and in the aggregate. Such limits may be achieved through the
use of umbrella liability insurance otherwise meeting the requirements of this
Section 16(f). Landlord shall name Tenant as an additional insured under its
liability insurance policies to the extent of Landlord's obligation to indemnify
Tenant as set forth in this Lease.
Landlord will procure and maintain physical damage insurance
covering all real and personal property, excluding property paid for by tenants
and not reimbursed by Landlord or paid for by Landlord for which tenants have
reimbursed Landlord, located on or in, or constituting a part of, the Building
in an amount equal to at least ninety percent (90%) of replacement value of all
such property with a coinsurance waiver. Such insurance shall afford coverage
for damages resulting from (i) perils covered by what is commonly referred to as
"all risk" coverage insurance (but excluding earthquake and flood), and (ii)
boilers and machinery coverage as appropriate for apparatus located in the
Building.
(g) Deductibles: All insurance carried by Landlord and Tenant
-----------
pursuant to this Section 16 shall provide for deductible amounts consistent with
standards then customary in the Seattle office building market for the type and
amount of coverage.
17. ASSIGNMENT AND SUBLETTING:
-------------------------
(a) Assignment or Sublease: Except as set forth in Section 17(c),
----------------------
Tenant shall not assign, mortgage, encumber or otherwise transfer this Lease nor
sublet the whole or any part of the Premises without in each case first
obtaining Landlord's prior written consent. Subject to Section 17(b), below,
such consent shall not be unreasonably withheld or delayed, except: (i)
Landlord may withhold its consent if in Landlord's reasonable judgment occupancy
by any proposed assignee, subtenant, or other transferee (A) is not consistent
with the maintenance and operation of a first-class office building due to the
nature of the proposed occupant's business or manner of conducting business or
its experience or reputation in the community; or (B) is likely to cause
disturbance to the normal use and occupancy of the Building; (ii) Landlord may
withhold in its absolute and sole discretion consent to any mortgage,
hypothecation, pledge, or other encumbrance of any interest in this Lease or the
Premises by Tenant or any subtenant; (iii) Landlord may withhold its consent to
the extent it deems necessary to comply with any restriction on use of the
Premises, the Building, or the Land contained in any applicable laws or in any
lease, mortgage, or other agreement or instrument by which the Landlord is bound
or to which any of such property is subject.
No such assignment, subletting or other transfer shall relieve
Tenant of any liability under this Lease. Consent to any such assignment,
subletting or transfer shall not operate as a waiver of the necessity for
consent to any subsequent assignment, subletting or transfer. Each request for
an assignment or subletting must be accompanied by a Processing Fee of $500 in
order to reimburse Landlord for expenses, including attorneys fees, incurred in
connection with such request ("Processing Fee"). Tenant shall provide Landlord
with copies of all assignments, subleases and assumption instruments.
(b) Landlord Right to Terminate Portion of Lease: If Tenant intends
--------------------------------------------
to assign this Lease or sublease all or any portion of the Premises for the
remainder of the Term of this Lease, Landlord reserves the right to recapture
the space and terminate this Lease, or if consent is requested for subletting
less than the entire Premises for the remainder of the Term of this Lease, to
terminate this Lease with respect to the portion for which such consent is
requested, provided that Landlord
B-13
shall notify Tenant in writing ("Recapture Notice") of its intent to recapture
the space within ten business (10) days after receipt of written notification of
Tenant's intent to market space for sublease or assignment. If Landlord provides
a timely Recapture Notice, Tenant shall have the right within ten business (10)
days thereafter to rescind its request for consent, in which case the Recapture
Notice shall be null and void and of no further force or effect and Tenant shall
have no right to market the space for assignment or sublease hereunder. In
addition, upon sublease or assignment, if Landlord has not elected to recapture
such space, Tenant shall pay Landlord, as Additional Rent, the amount by which
all sums received under the sublease or assignment exceed the total of (i) the
Rent and Additional Rent due under this Lease plus (ii) reasonable market rate
leasing commissions, legal fees, design fees and tenant improvement costs
incurred by Tenant with respect to the sublease or assignment. Tenant shall
provide Landlord copies of all sublease or assignment documentation as soon as
reasonably possible. Notwithstanding the foregoing, Landlord's ability to
recapture any space and to retain any rent received in excess of amounts payable
hereunder (as described above) shall not apply in the event Landlord is unable
to provide Tenant with adequate expansion space as described in Section 11 of
Exhibit C attached hereto.
(c) Permitted Transfers: Notwithstanding anything herein to the
-------------------
contrary, Landlord hereby consents to an assignment of this Lease, or a
subletting of all or part of the Premises, to (i) the parent of Tenant or to a
wholly owned subsidiary of Tenant or of such parent, (ii) any corporation in
whom or with which Tenant may be merged or consolidated, or (iii) any entity to
whom Tenant sells all or substantially all of its assets, provided that in each
such instance such entity expressly assumes all of Tenant's obligations
hereunder and has a net worth at least equal to the greater of (A) the net worth
of Tenant on the date hereof or (B) the net worth of Tenant immediately prior to
such assignment or transaction. With respect to the transactions described in
Subsections (i) and (ii) above, such net worth may be on a consolidated basis
with Tenant's affiliated entity. Landlord also consents to a subletting by
Tenant from time to time of portions of the Premises to Tenant's vendors,
suppliers and other customers. Landlord acknowledges that Tenant is a publicly
owned corporation and that the transfer of all or any portion of the ownership
of stock in Tenant shall not be deemed an assignment of this Lease.
(d) Assignee Obligations: As a condition to Landlord's approval,
--------------------
any potential assignee otherwise approved by Landlord shall assume in writing
all obligations of Tenant under this Lease and shall be liable to Landlord for
rental and other payments and performance of all terms, covenants and conditions
of this Lease.
(e) Sublessee Obligations: Any sublessee shall assume all
---------------------
obligations of Tenant as to that portion of the Premises which is subleased.
18. SIGNS: Tenant shall not place or in any manner display any sign,
-----
graphics, or other advertising matter anywhere in or about the Premises or the
Building at places visible (either directly or indirectly) from anywhere outside
the Premises without first obtaining Landlord's written consent thereto.
Provided such sign complies with the requirements set forth on Exhibit G
attached hereto, Landlord shall not unreasonably withhold its consent thereto.
Any such consent by Landlord shall be upon the understanding and condition that
Tenant shall remove the same at the expiration or sooner termination of this
Lease and Tenant shall repair any damage to the Premises or the Building caused
thereby. Landlord shall not unreasonably withhold its consent to normal Tenant
signage within the Premises which is consistent in Landlord's opinion with the
Building's image and signage and graphics program. Signage other than building
standard elevator lobby directory signage is at Tenant's sole expense. If
allowed by applicable law, and so long as Tenant leases sixty-two and one half
percent (62.5%) or more of the rentable area of the Building: (a) Tenant shall
have the right to place its corporate logo (or other corporate "brand") in a
visible location on the outside of the Building in one (but not more than one)
of the locations depicted on Exhibit G attached hereto, as selected by Tenant;
and (b) Tenant shall also be allowed to erect and maintain a monument sign
outside the Building. The size, location and design of the monument sign shall
be subject to the reasonable approval of Landlord and Tenant.
19. LIENS AND INSOLVENCY:
--------------------
(a) Liens: Tenant shall keep its interest in this Lease, the
-----
Premises, the Land and the Building free from any liens arising out of any work
performed and materials ordered or obligations incurred by or on behalf of
Tenant and hereby indemnifies, defends and holds Landlord harmless from any
liability from any such lien. In the event any lien is filed against the
Building, the Land or the Premises by any person claiming by, through or under
Tenant, Tenant shall, upon request of Landlord and at Tenant's expense, cause
such lien to be released of record within ten (10) days or furnish to Landlord a
bond, in form and amount and issued by a surety reasonably satisfactory to
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Landlord, indemnifying Landlord, the Land and the Building against all
liability, costs and expenses, including attorneys fees, which Landlord may
incur as a result thereof. Provided that such bond has been furnished to
Landlord, Tenant, at its sole cost and expense and after written notice to
Landlord, may contest, by appropriate proceedings conducted in good faith and
with due diligence, any lien, encumbrance or charge against the Premises arising
from work done or materials provided to or for Tenant, if, and only if, such
proceedings suspend the collection thereof against Landlord, Tenant and the
Premises and neither the Premises, the Building nor the Land nor any part
thereof or interest therein is or will be in any danger of being sold, forfeited
or lost.
(b) Insolvency: If Tenant becomes insolvent or voluntarily or
----------
involuntarily bankrupt, or if a receiver, assignee or other liquidating officer
is appointed for the business of Tenant (and not discharged within ninety (90)
days with respect to an involuntary proceeding), Landlord at its option may
terminate this Lease and Tenant's right of possession under this Lease and in no
event shall this Lease or any rights or privileges hereunder be an asset of
Tenant in any bankruptcy, insolvency or reorganization proceeding.
20. DEFAULT:
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(a) Cumulative Remedies: All rights of Landlord and Tenant herein
-------------------
enumerated shall be cumulative, and none shall exclude any other right or remedy
allowed by law. In addition to the other remedies provided in this Lease,
Landlord and Tenant shall be entitled to restrain by injunction the violation or
threatened violation of any of the covenants, agreements or conditions of this
Lease.
(b) Tenant's Right to Cure: Tenant shall have a period of three (3)
----------------------
business days from the date of written notice from Landlord to Tenant within
which to cure any default in the payment of Rent, Additional Rent and other sums
due hereunder. Tenant shall have a period of thirty (30) days from the date of
written notice from Landlord to Tenant within which to cure any other default
hereunder; provided, however, that with respect to any such default capable of
being cured by Tenant which cannot be cured within thirty (30) days, the default
shall not be deemed to be uncured if Tenant commences to cure within thirty (30)
days and for so long as Tenant is diligently pursuing the cure thereof.
(c) Abandonment: Abandonment shall be defined as an absence from
-----------
the Premises of thirty (30) days or more while Tenant is in monetary default.
Any abandonment by Tenant shall be considered a default with no right to cure,
allowing Landlord to re-enter the Premises as hereinafter set forth.
(d) Landlord's Reentry: Upon abandonment or an uncured default of
------------------
this Lease by Tenant, Landlord, in addition to any other rights or remedies it
may have, at its option, may enter the Premises or any part thereof, and expel,
remove or put out Tenant or any other persons who may be thereon, together with
all personal property found therein; and Landlord may terminate this Lease, or
it may from time to time, without terminating this Lease, relet the Premises or
any part thereof for such term or terms (which may be for a term less than or
extending beyond the term hereof) and at such rental or rentals and upon such
other terms and conditions as Landlord in its sole discretion may deem
advisable, with the right to repair, renovate, remodel, redecorate, alter and
change the Premises, Tenant remaining liable for any deficiency computed as
hereinafter set forth. In the case of any default, reentry and/or dispossession
all Rent and Additional Rent shall become due thereupon, together with such
expenses as Landlord may reasonably incur for attorneys fees, advertising
expenses, brokerage fees and/or putting the Premises in good order or preparing
the same for re-rental, together with interest thereon as provided in Section
37(f) hereof, accruing from the date of any such expenditure by Landlord. No
such re-entry or taking possession of the Premises shall be construed as an
election on Landlord's part to terminate this Lease unless a written notice of
such intention be given to Tenant.
(e) Reletting the Premises: At the option of Landlord, rents
----------------------
received by Landlord from such reletting shall be applied first to the payment
of any indebtedness from Tenant to Landlord other than Rent and Additional Rent
due hereunder; second, to the payment of any costs and expenses of such
reletting and including, but not limited to, attorneys fees, advertising fees
and brokerage fees, and to the payment of any repairs, renovations, remodeling,
redecoration, alterations and changes in the Premises; third, to the payment of
Rent and Additional Rent due and to become due hereunder, and, if after so
applying said Rents there is any deficiency in the Rent or Additional Rent to be
paid by Tenant under this Lease, Tenant shall pay any deficiency to Landlord
monthly on the dates specified herein. Any payment made or suits brought to
collect the amount of the deficiency for any month shall not prejudice in any
way the right of Landlord to collect the deficiency for any
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subsequent month. The failure of Landlord to relet the Premises or any part or
parts thereof shall not release or affect Tenant's liability hereunder, nor
shall Landlord be liable for failure to relet, or in the event of reletting, for
failure to collect the Rent thereof, and in no event shall Tenant be entitled to
receive any excess of net Rents collected over sums payable by Tenant to
Landlord hereunder. Notwithstanding any such reletting without termination,
Landlord may at any time elect to terminate this Lease for such previous breach
and default. Should Landlord terminate this Lease by reason of any default, in
addition to any other remedy it may have, it may recover from Tenant the then
present value of Rent and Additional Rent reserved in this Lease for the balance
of the Term, as it may have been extended, over the then fair market rental
value of the Premises for the same period, plus all court costs and attorneys
fees incurred by Landlord in the collection of the same.
21. PRIORITY: Landlord represents that it will be, no later than the
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commencement of construction (as defined in Section 4(b) above), the sole owner
in fee simple of the Air Rights and the Building, and that the Building is not
encumbered by or subject to the lien of any mortgage or deed of trust as of the
date of this Lease. Tenant agrees that this Lease shall be subordinate to any
first mortgage or deed of trust hereafter placed upon the Premises or the
Building created by or at the instance of Landlord and to any and all advances
to be made thereunder and to interest thereon and all renewals, replacements, or
extensions thereof ("Landlord's Mortgage") ; provided, however, that the
subordination of this Lease and the estate hereby granted to Landlord's Mortgage
shall be upon the condition that the holder of Landlord's Mortgage ("Holder")
shall execute and deliver to Tenant, and fully perform and abide by the terms
of, an instrument in recordable form and reasonably satisfactory to Tenant
("Nondisturbance Agreement") providing that so long as conditions do not exist
entitling Landlord to declare this Lease at an end under the provisions of
Section 20 (including the expiration of all periods to cure):
(a) This Lease and the estate hereby created shall not be terminated;
(b) Nether Tenant nor any subtenant or assigns of Tenant shall be
joined by the Holder of Landlord's Mortgage in any foreclosure proceedings;
(c) Tenant's possession or enjoyment of the Premises shall not be
interfered with by or in any foreclosure, bankruptcy, reorganization action,
sale or other action or proceeding instituted under or in connection with such
Landlord's Mortgage, it being the express intention of Landlord, the Holder of
Landlord's Mortgage and Tenant that Tenant shall not be disturbed in its
possession and use of the Premises under this Lease for any reason other than
the termination of this Lease in accordance with its terms; and
(d) If the interest of Landlord under this Lease shall be transferred,
Tenant shall attorn to any such transferee upon such transferee's succession to
the interest of Landlord under this Lease and notice to Tenant to that effect,
upon and subject to all the terms, covenants and conditions hereof.
Landlord and Tenant agree that, subject to the execution and delivery
of a Nondisturbance Agreement, the provision for the subordination of this Lease
and the estate hereby granted to the lien of such Landlord's Mortgage shall be
self-operative and no further instrument shall be required to effect such
subordination; but Tenant shall, upon request by Landlord, at any time or times
(a) execute and deliver any and all instruments as shall be reasonably required
to effect such subordination and (b) execute and deliver any and all further or
other instruments that may be reasonably necessary or proper to confirm or
evidence such subordination. Without limiting the foregoing, upon request of
Landlord, Tenant shall execute, acknowledge and deliver to the Holder of any
First Mortgage a Subordination, Attornment and Nondisturbance Agreement in the
form attached as Exhibit E hereto.
Notwithstanding the foregoing, upon demand of such Holder, such
Landlord's Mortgage shall be subordinate to this Lease; provided, however, that
in such event, notwithstanding such subordination, such Landlord's Mortgage
shall be superior to this Lease with respect to (i) the right, claim and lien of
the Landlord's Mortgage in, to and upon any award or other compensation for any
taking by eminent domain of any part of the Premises or the Building and the
right of disposition thereof in accordance with the provisions of the Landlord's
Mortgage; and upon any proceeds payable under any policies of fire and rental
insurance upon the Premises or the Building and to the right of disposition
thereof in accordance with the terms of the Landlord's Mortgage; (ii) any lien,
right or judgment which may have arisen at any time under the terms of the
Lease; and (iii) such other matters as may be specifically reserved by the
Holder of such Landlord's Mortgage in writing in connection with such
subordination.
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22. SURRENDER OF POSSESSION: Subject to the terms of Section 13
-----------------------
relating to damage and destruction, upon expiration of the term of this Lease,
whether by lapse of time or otherwise, Tenant shall promptly and peacefully
surrender the Premises to Landlord in as good condition as when received by
Tenant from Landlord or as thereafter improved (subject to Tenant's obligation
to remove any Alterations or Changes if requested by Landlord at the time of
Landlord's initial consent pursuant to Section 11, above), reasonable use and
wear and tear excepted.
23. REMOVAL OF PROPERTY: Tenant shall remove all of its movable
-------------------
personal property, telephone, data and computer cabling, and trade fixtures paid
for by Tenant which can be removed without damage to the Premises at the
expiration or earlier termination of this Lease, and shall pay Landlord any
damages for injury to the Premises or Building resulting from such removal. All
other improvements and additions to the Premises shall thereupon become the
property of Landlord.
24. NON-WAIVER: Waiver by Landlord or Tenant of any term, covenant or
----------
condition herein contained or any breach thereof shall not be deemed to be a
waiver of any subsequent breach of the same or any other term, covenant, or
condition herein contained. The subsequent acceptance of any payment hereunder
by Landlord shall not be deemed to be a waiver of any preceding breach by Tenant
of any term, covenant or condition of this Lease, other than the failure of
Tenant to pay the amount so accepted, regardless of Landlord's knowledge of such
preceding breach at the time of acceptance of such payment.
25. HOLDOVER: If Tenant shall, with the written consent of Landlord,
--------
hold over after the expiration of the term of this Lease, such tenancy shall be
deemed a month-to-month tenancy, which tenancy may be terminated as provided by
applicable law. During such tenancy, Tenant agrees to pay to Landlord one
hundred thirty-five percent (135%) of the Rent and Additional Rent in effect
upon the date of such expiration as stated herein, and to be bound by all of the
terms, covenants and conditions herein specified, so far as applicable.
Acceptance by Landlord of Rent and Additional Rent after such expiration or
earlier termination shall not result in a renewal of this Lease. The foregoing
provisions of this Section 25 are in addition to and do not affect Landlord's
right of re-entry or any rights of Landlord hereunder or as otherwise provided
by law. If Tenant shall hold over after the expiration or earlier termination
of this Lease without the written consent of Landlord, such occupancy shall be
deemed an unlawful detainer of the Premises subject to the applicable laws of
the state in which the Building is located and, in addition, Tenant shall be
liable for any costs, damages, losses and expenses incurred by Landlord as a
result of Tenant's failure to surrender the Premises in accordance with this
Lease.
26. CONDEMNATION:
------------
(a) Entire Taking: If all of the Premises or such portions of the
-------------
Building as may be required for the reasonable use of the Premises, are taken by
eminent domain, this Lease shall automatically terminate as of the date title
vests in the condemning authority and all Rent, Additional Rent and other
payments shall be paid to that date.
(b) Constructive Taking of Entire Premises: In the event of a
--------------------------------------
taking of a material part of but less than all of the Building, where Landlord
or Tenant shall reasonably determine that the remaining portions of the Premises
cannot be economically and effectively used by Tenant (whether on account of
physical, economic, aesthetic or other reasons), or if, in the opinion of
Landlord or Tenant, the Building should be restored in such a way as to alter
the Premises materially, Landlord or Tenant shall forward a written notice to
the other of such determination not more than sixty (60) days after the date of
taking. The term of this Lease shall expire upon such date as such party shall
specify in such notice but not earlier than sixty (60) days after the date of
such notice.
(c) Partial Taking: In case of taking of a part of the Premises, or
--------------
a portion of the Building not required for the reasonable use of the Premises,
then this Lease shall continue in full force and effect and the Rent shall be
equitably reduced based on the proportion by which the floor area of the
Premises is reduced, such Rent reduction to be effective as of the date title to
such portion vests in the condemning authority. If a portion of the Premises
shall be so taken which renders the remainder of the Premises unsuitable for
continued occupancy by Tenant under this Lease, Tenant may terminate this Lease
by written notice to Landlord within sixty (60) days after the date of such
taking and the term of this Lease shall expire upon such date as Tenant shall
specify in such notice not later than sixty (60) days after the date of such
notice.
(d) Awards and Damages: Landlord reserves all rights to damages to
------------------
the Premises for any partial, constructive, or entire taking by eminent domain,
and Tenant hereby assigns to Landlord any right Tenant may have to such damages
or award, and Tenant shall make no claim
B-17
against Landlord or the condemning authority for damages for termination of the
leasehold interest or interference with Tenant's business. Tenant shall have the
right, however, to claim and recover from the condemning authority compensation
for any loss to which Tenant may be put for Tenant's moving expenses, business
interruption or taking of Tenant's personal property and leasehold improvements
paid for by Tenant (not including Tenant's leasehold interest) provided that
such damages may be claimed only if they are awarded separately in the eminent
domain proceedings and not out of or as part of the damages recoverable by
Landlord.
27. NOTICES: All notices under this Lease shall be in writing and
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delivered in person or sent by registered or certified mail, or nationally
recognized courier (such as Federal Express, DHL, etc.), postage prepaid, to
Landlord and to Tenant at the Notice Addresses provided in Section 1(m) and to
the holder of any mortgage or deed of trust at such place as such holder shall
specify to Tenant in writing; or such other addresses as may from time to time
be designated by any such party in writing. Notices mailed as aforesaid shall
be deemed given on the day which is two (2) business days after the date of such
mailing.
28. COSTS AND ATTORNEYS FEES: If Tenant or Landlord shall bring any
------------------------
action for any relief against the other, declaratory or otherwise, arising out
of this Lease, including any suit by Landlord for the recovery of Rent,
Additional Rent or other payments hereunder or possession of the Premises, each
party shall, and hereby does, to the extent permitted by law, waive trial by
jury and the losing party shall pay the prevailing party a reasonable sum for
attorneys fees in such suit, at trial and on appeal, and such attorneys fees
shall be deemed to have accrued on the commencement of such action.
29. LANDLORD'S LIABILITY: Anything in this Lease to the contrary
--------------------
notwithstanding, covenants, undertakings and agreements herein made on the part
of Landlord are made and intended not as personal covenants, undertakings and
agreements for the purpose of binding Landlord personally or the assets of
Landlord except Landlord's interest in the Premises and Building (and any
proceeds thereof), but are made and intended for the purpose of binding only the
Landlord's interest in the Premises and Building (and any proceeds thereof), as
the same may from time to time be encumbered. No personal liability or personal
responsibility is assumed by, nor shall at any time be asserted or enforceable
against Landlord or its partners or their respective heirs, legal
representatives, successors, and assigns on account of the Lease or on account
of any covenant, undertaking or agreement of Landlord in this Lease contained.
30. ESTOPPEL CERTIFICATES: Tenant shall, from time to time, upon
---------------------
written request of Landlord, execute, acknowledge and deliver to Landlord or its
designee a written statement prepared by Landlord stating: The date this Lease
was executed and the date it expires; the date the term commenced and the date
Tenant accepted the Premises; the amount of minimum monthly Rent and the date to
which such Rent has been paid; and certifying to the extent true: That this
Lease is in full force and effect and has not been assigned, modified,
supplemented or amended in any way (or specifying the date and terms of
agreement so affecting this Lease); that this Lease represents the entire
agreement between the parties as to this leasing; that all conditions under this
Lease to be performed by Landlord have been satisfied; that all required
contributions by Landlord to Tenant on account of Tenant's improvements have
been received; that on this date there are no existing claims, defenses or
offsets which Tenant has against the enforcement of this Lease by Landlord; and
that the security deposit is as stated in the Lease. It is intended that any
such statement delivered pursuant to this paragraph may be relied upon by a
prospective purchaser of Landlord's interest or the holder of any mortgage upon
Landlord's interest in the Building. If Tenant shall fail to respond within ten
(10) business days of receipt by Tenant of a written request by Landlord as
herein provided, Tenant shall be deemed to have given such certificate as above
provided without modification and shall be deemed to have admitted the accuracy
of any information supplied by Landlord to a prospective purchaser or mortgagee
and that this Lease is in full force and effect, that there are no uncured
defaults in Landlord's performance, that the security deposit is as stated in
the Lease, and that not more than one month's Rent has been paid in advance.
31. TRANSFER OF LANDLORD'S INTEREST: In the event of any transfers of
-------------------------------
Landlord's interest in the Premises or in the Building, other than a transfer
for security purposes only, the transferor shall, upon the transfer of the
security deposit (if any), be automatically relieved of any and all obligations
and liabilities on the part of Landlord accruing from and after the date of such
transfer and such transferee shall have no obligation or liability with respect
to any matter occurring or arising prior to the date of such transfer. Tenant
agrees to attorn to the transferee. Notwithstanding anything to the contrary
contained in this Section 31 or elsewhere in this Lease, the obligations of
Landlord to complete Landlord's Work, as provided in Section 3(a), and cause the
Commencement Date to occur, subject to all other terms and conditions of this
Lease, are hereby guaranteed by ▇▇▇▇▇▇
B-18
Runstad Associates Limited Partnership, a Washington limited partnership
("Guarantor"), and upon any transfer described in this Section 31 the
obligations of Guarantor shall continue unmodified and in full force and effect,
and the Guarantor shall not be relieved of any such liabilities or obligations
by reason of such transfer. Upon fulfillment of the above-described obligations
and expiration of the warranty period in Section 3(c) above, Guarantor's
obligations hereunder shall terminate.
32. RIGHT TO PERFORM: If Tenant shall fail to pay any sum of money,
----------------
other than Rent and Additional Rent required to be paid by it hereunder, or
shall fail to perform any other act on its part to be performed hereunder, and
such failure shall continue for ten (10) days after notice thereof by Landlord,
Landlord may, but shall not be obligated so to do, and without waiving or
releasing Tenant from any obligations of Tenant, make such payment or perform
any such other act on Tenant's part to be made or performed as provided in this
Lease. Any sums paid by Landlord hereunder shall be immediately due and payable
by Tenant to Landlord and Landlord shall have (in addition to any other right or
remedy of Landlord) the same rights and remedies in the event of the nonpayment
of sums due under this Section as in the case of default by Tenant in the
payment of Rent.
If Landlord defaults in its obligations under this Lease, and such
failure shall continue for fifteen (15) days after notice thereof by Tenant
(provided such fifteen (15) day period shall be extended if such default is not
curable within fifteen (15) days and Landlord commences such cure within fifteen
(15) days and thereafter diligently and continuously pursues such cure), Tenant
may, but shall not be obligated so to do, and without waiving or releasing
Landlord from any obligations of Landlord, five (5) business days after
providing Landlord with a second written notice, if such failure of Landlord to
perform continues, make such payment or perform any such other act on Landlord's
part to be made or performed as provided in this Lease. Any sums paid by Tenant
hereunder, plus interest accrued at the rate set forth in Section 37(f) below,
shall be immediately due and payable by Landlord to Tenant, or if Landlord fails
to pay such amounts on demand, Tenant may deduct the amount so expended by
Tenant from the next due installments of Rent and Additional Rent hereunder.
33. QUIET ENJOYMENT: Tenant shall have the right to the peaceable and
---------------
quiet use and enjoyment of the Premises, subject to the provisions of this
Lease, as long as Tenant is not in default hereunder.
34. AUTHORITY: If Tenant is a corporation, limited liability company,
---------
limited liability partnership or limited or general partnership, Tenant
represents and warrants that the person executing this Lease on Tenant's behalf
is duly authorized to execute and deliver this Lease on behalf of Tenant, in
accordance with a duly adopted resolution or consents of all appropriate persons
or entities required therefor and in accordance with the formation documents of
Tenant, and that this Lease is binding upon Tenant in accordance with its terms.
At Landlord's request, Tenant shall, prior to execution of this Lease, deliver
to Landlord a copy of a resolution or consent, certified by an appropriate
officer, partner or manager of Tenant authorizing or ratifying the execution of
this Lease. Landlord represents and warrants that the person executing this
Lease on Landlord's behalf is duly authorized to execute and deliver this Lease
on behalf of Landlord, in accordance with a duly adopted resolution or consents
of all appropriate persons or entities required therefor and in accordance with
the formation documents of Landlord, and that this Lease is binding upon
Landlord in accordance with its terms.
35. HAZARDOUS MATERIALS:
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(a) Tenant Obligations:
------------------
(i) Tenant shall not dispose of or otherwise allow the release of
any hazardous waste or materials in, on or under the Premises or the Building,
or any adjacent property, or in any improvements placed on the Premises. Tenant
represents and warrants to Landlord that Tenant's intended use of the Premises
does not involve the use, production, disposal or bringing on to the Premises of
any hazardous waste or materials, except only ordinary and general office
supplies typically used in first-class downtown office buildings (including, but
not limited to, the presence and use of a diesel generator) and only in such
quantities or concentrations as allowed under applicable laws, rules and
regulations. As used in this Section, the term "hazardous waste or materials"
includes any substance, waste or material defined or designated as hazardous,
toxic or dangerous (or any similar term) pursuant to any statute, regulation,
rule or ordinance now or hereafter in effect. Tenant shall promptly comply with
all such statutes, regulations, rules and ordinances, and if Tenant fails to so
comply Landlord may, after reasonable prior notice to Tenant (except in case of
emergency) effect such compliance on behalf of Tenant. Tenant shall immediately
reimburse Landlord for all costs incurred in effecting such compliance.
B-19
(ii) Tenant agrees to indemnify, defend and hold harmless Landlord
against any and all actual losses, liabilities, suits, obligations, fines,
damages, judgments, penalties, claims, charges, cleanup costs, remedial actions,
costs and expenses (including, without limitation, consultant fees, attorneys'
fees and disbursements) which may be imposed on, incurred or paid by Landlord,
or asserted in connection with (i) any misrepresentation, breach of warranty or
other default by Tenant under this Section 35, or (ii) the acts of Tenant, or
any subtenant or other person for whom Tenant would otherwise be liable,
resulting in the release of any hazardous waste or materials on or in the
Premises.
(b) Landlord Obligations: Landlord represents to Tenant that, to
--------------------
the best of Landlord's knowledge, no hazardous waste or materials have been
generated, stored or disposed of on, in or under the Premises or the Building
other than in compliance with all applicable laws. Landlord will hold Tenant
harmless from and defend and indemnify Tenant against any actual costs resulting
from any breach of this representation or resulting from the release of
hazardous waste or materials on, in or under the Premises or the Building by
Landlord or its employees, agents or contractors. Landlord shall not be
responsible for any hazardous waste or materials resulting from the acts of
other tenants or occupants of the Building or other third parties, or for
consequential damages arising from the presence of any hazardous wastes or
materials on the Premises or in the Building.
36. TELECOMMUNICATIONS LINES AND EQUIPMENT:
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(a) Location of Tenant's Equipment and Landlord Consent:
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(i) Tenant may install, maintain, replace, remove and use
communications or computer wires, cables and related devices (collectively, the
"Lines") at the Building in or serving the Premises, only with Landlord's prior
written consent if such Lines are to be installed in Building conduit or shafts,
which consent shall not be unreasonably withheld. Tenant shall locate all
electronic telecommunications equipment within the Premises. Any request for
consent shall contain detailed plans, drawings and specifications identifying
all work to be performed, the time schedule for completion of the work, the
identity of the entity that will provide service to the Lines and the identity
of the entity that will perform the proposed work (which entity shall be subject
to Landlord's reasonable approval). Landlord shall have a reasonable time in
which to evaluate the request after it is submitted by Tenant (but if Landlord
has not responded in ten (10) days, Landlord shall be deemed to have consented).
(ii) Landlord may consider the following factors, among others,
in making its determination: (A) the experience, qualifications and prior work
practice of the proposed contractor and its ability to provide sufficient
insurance coverage for its work at the Building; (B) whether or not the proposed
work will interfere with the use of any then existing Lines at the Building; (C)
whether or not an acceptable number of spare Lines and space for additional
Lines shall be maintained for existing and future occupants of the Building; (D)
a requirement that Tenant remove existing abandoned Lines located in or
servicing the Premises, as a condition to permitting the installation of new
lines; (E) whether or not Tenant is in default of any of its obligations under
this Lease; (F) whether the proposed work or resulting Lines will impose new
obligations on Landlord, expose Landlord to liability of any nature or
description, increase Landlord's insurance premiums for the Building, create
liabilities for which Landlord is unable to obtain insurance protection or
imperil Landlord's insurance coverage; (G) whether Tenant's proposed
telecommunications service provider is willing to pay reasonable monetary
compensation for the use and occupation of the Building; and (H) whether the
work or resulting Lines would adversely affect the Land, Building or any space
in the Building in any manner.
(iii) Landlord's approval of, or requirements concerning, the
Lines or any equipment related thereto, the plans, specifications or designs
related thereto, the contractor or subcontractor, or the work performed
hereunder, shall not be deemed a warranty as to the adequacy thereof, and
Landlord hereby disclaims any responsibility or liability for the same.
(iv) If Landlord consents to Tenant's proposal, Tenant shall
(A) pay all costs in connection therewith (including all costs related to new
Lines); (B) comply with all requirements and conditions of this Section; (C)
use, maintain and operate the Lines and related equipment in accordance with and
subject to all laws governing the Lines and equipment. Tenant shall further
insure that (I) Tenant's contractor complies with the provisions of this Section
and Landlord's reasonable requirements governing any work performed; (II)
Tenant's contractor provides all insurance required by Landlord; (III) any work
performed shall comply with all Laws; and (IV) as soon as the work in completed,
Tenant shall submit "as-built" drawings to Landlord.
(v) Landlord reserves the right to require that Tenant remove
any Lines located in or serving the Premises which are installed in violation of
these provisions, or which are at
B-20
any time in violation of any laws or present a dangerous or potentially
dangerous condition (whether such Lines were installed by Tenant or any other
party), within thirty (30) days after written notice.
(vi) Notwithstanding anything in the above paragraphs, Tenant
shall remove any Lines located in or serving the Premises promptly upon
expiration or sooner termination of this Lease.
(b) Landlord's Rights: Landlord may (but shall not have the obligation
-----------------
to), with Tenant's consent (which shall not be unreasonably withheld):
(i) install new lines at the Building;
(ii) create additional space for Lines at the Building; and
(iii) direct, monitor and/or supervise the installation,
maintenance, replacement and removal of, the allocation and periodic re-
allocation of available space (if any) for, and the allocation of excess
capacity (if any) on, any Lines now or hereafter installed at the Building by
Landlord, Tenant or any other party (but Landlord shall have no right to monitor
or control the information transmitted through such Lines).
(c) Indemnification: In addition to any other indemnification
---------------
obligations under this Lease, Tenant shall indemnify, defend and hold harmless
Landlord and its employees, agents, officers, and contractors from and against
any and all claims, demands, penalties, fines, liabilities, settlements,
damages, costs or expenses (including reasonable attorneys' fees) arising out of
or in any way related to the acts of Tenant, Tenant's officers, directors,
employees, agents, contractors, subcontractors, subtenants, and invitees with
respect to: (i) any Lines or equipment related thereto serving Tenant in the
Building; (ii) any personal injury (including wrongful death) or property damage
arising out of or related to any Lines or equipment related thereto serving
Tenant in the Building; (iii) any lawsuit brought or threatened, settlement
reached, or governmental order, fine or penalty relating to such Lines or
equipment related thereto; and (iv) any violations of Laws or demands of
governmental authorities which are based upon or in any way related to such
Lines or equipment. This indemnification and hold harmless agreement shall
survive the termination of this Lease.
(d) Limitation of Liability: Except to the extent arising from the
-----------------------
negligence or willful misconduct of Landlord or Landlord's agents or employees,
Landlord shall have no liability for damages arising from, and Landlord does not
warrant that the Tenant's use of any Lines will be free from the following
(collectively called "Line Problems"): (i) any shortages, failures, variations,
interruptions, disconnections, loss or damage caused by the installation,
maintenance, or replacement, use or removal of Lines by or for other tenants or
occupants at the Building, by any failure of the environmental conditions or the
power supply for the Building to conform to any requirement of the Lines or any
associated equipment, or any other problems associated with any Lines by any
other cause; or (ii) any eavesdropping or wire-tapping by unauthorized parties.
Landlord in no event shall be liable for damages by reason of loss of profits,
business interruption or other consequential damages from any Line Problems.
Under no circumstances shall any Line Problems be deemed an actual or
constructive eviction of Tenant, render Landlord liable to Tenant for abatement
of Rent, or relieve Tenant from performance of Tenant's obligations under this
Lease.
(e) Electromagnetic Fields: If Tenant at any time uses any
----------------------
equipment that may create an electromagnetic field exceeding the normal
insulation ratings of ordinary twisted pair riser cable or cause radiation
higher than normal background radiation, Landlord reserves the right to require
Tenant to appropriately insulate the Lines therefor (including riser cables) to
prevent such excessive electromagnetic fields or radiation.
37. GENERAL:
(a) Headings: Titles to Sections of this Lease are not a part of
--------
this Lease and shall have no effect upon the construction or interpretation of
any part hereof.
(b) Successors and Assigns: All of the covenants, agreements, terms
----------------------
and conditions contained in this Lease shall inure to and be binding upon the
Landlord and Tenant and their respective, successors and assigns.
(c) Payment of Brokers: Landlord shall pay ▇▇▇▇▇▇ Runstad & Company
------------------
and Washington Partners the real estate commissions pursuant to the signed
brokerage agreements between such brokers and Landlord. If Tenant has dealt
with any other person or real estate broker
B-21
with respect to leasing or renting space in the Building, Tenant shall be solely
responsible for the payment of any fee due said person or firm and Tenant shall
indemnify and hold Landlord harmless against any liability in respect thereto,
including Landlord's attorneys' fees and costs in defense of any such claim.
(d) Entire Agreement: This Lease contains all covenants and
----------------
agreements between Landlord and Tenant relating in any manner to the leasing,
use and occupancy of the Premises, to Tenant's use of the Building and other
matters set forth in this Lease. No prior agreements or understanding
pertaining to the same shall be valid or of any force or effect and the
covenants and agreements of this Lease shall not be altered, modified or added
to except in writing signed by Landlord and Tenant.
(e) Severability: Any provision of this Lease which shall be held
------------
invalid, void or illegal shall in no way affect, impair or invalidate any other
provision hereof and the remaining provisions hereof shall nevertheless remain
in full force and effect.
(f) Overdue Payments: Tenant acknowledges that a late payment of
----------------
Rent or other sums due hereunder will cause Landlord to incur costs not
contemplated by this Lease. Such costs may include, but not be limited to,
processing and accounting charges, and penalties imposed by terms of any
contracts, mortgages or deeds of trust covering the Building. Therefore, in the
event Tenant shall fail to pay any Rent, Additional Rent or other sums payable
by Tenant under this Lease for seven (7) days after such amount is due, then
Tenant shall pay Landlord, as Additional Rent, a late charge ("Late Charge")
equal to four percent (4%) of such amount owing, but not in excess of the
highest rate permitted by law. In addition to any Late Charges which may be
incurred hereunder, any Rent, Additional Rent or other sums payable by Tenant
under this Lease which are more than thirty (30) days past due, shall bear
interest at a rate equal to fourteen percent (14%) per annum but not in excess
of the highest lawful rate permitted under applicable laws, calculated from the
original due date thereof to the date of payment ("Overdue Fee"); provided,
however, the minimum Overdue Fee shall be One Hundred Dollars ($100.00).
In addition, if payments are received by check or draft from
Tenant, and two (2) or more of such checks or drafts are dishonored by the bank
or other financial institution they were drawn upon in any twelve (12) month
period, Landlord may thereafter require all Rent and other payments due
hereunder from Tenant to Landlord to be made by bank cashier's or bank certified
check or other similar means of payment and Landlord shall not be required to
accept any checks or drafts of Tenant which do not comply with such
requirements.
(g) Force Majeure: Except for the payment of Rent, Additional Rent
-------------
and other sums payable by Tenant, time periods for Tenant's or Landlord's
performance under any provisions of this Lease shall be extended for periods of
time during which Tenant's or Landlord's performance is prevented due to
circumstances beyond Tenant's or Landlord's reasonable control; provided,
however, that the time periods set forth in Section 3(d) shall not be so
extended.
(h) Right to Change Public Spaces: Landlord shall have the right,
-----------------------------
without Tenant's consent with respect to changes required by law and otherwise
with the reasonable approval of Tenant so long as Tenant leases sixty-two and
one-half percent (62.5%) or more of the Building, to change the arrangement or
location of such of the following as are not contained within the Premises or
any part thereof: entrances, passageways, doors and doorways, corridors, stairs,
toilets and other like public service portions of the Building. Nevertheless,
in no event shall Landlord diminish any service, change arrangement or location
of the elevators serving the Premises, make any change which shall diminish the
area of the Premises, make any change which shall interfere with access to the
Premises or change the character of the Building from that of a first-class
office building. If Tenant does not lease one hundred percent (100%) of the
Building (excluding only the retail tenant on the first floor of the Building
and any subtenants of Tenant that are suppliers or customers of Tenant), the
main Building lobby on the first floor will become a common Building lobby, as
will lobbies and corridors on floors with other tenants, and Landlord reserves
the right to make such changes as may be reasonably necessary in such event. A
floor plan of the main Building lobby, should Tenant lease less than one hundred
percent (100)% of the Building (excluding only the retail tenant on the first
floor of the Building and any subtenants of Tenant that are suppliers or
customers of Tenant), is attached as Exhibit J hereto.
(i) Governing Law: This Lease shall be governed by and construed in
-------------
accordance with the laws of the State of Washington.
B-22
(j) Building Directory: Landlord shall maintain in the lobby of
------------------
Building a directory which shall include the name of Tenant and any other names
reasonably requested by Tenant in proportion to the number of listings given to
comparable tenants of the Building.
(k) Building Name The Building shall be known by such name as
--------------
Landlord and Tenant shall mutually agree from time to time, provided that the
name of the Building shall contain the word "Visio" (or any successor name used
by Tenant), and further provided that Tenant's rights under this Section 37 (k)
shall remain in effect only so long as Tenant leases at least sixty-two and one-
half percent (62.5%) of the rentable area of the Building.
(l) Consents and Approvals; Certifications Whenever by the terms of
--------------------------------------
this Lease the consent or approval of Landlord or Tenant is specifically
required, such consent or approval shall not be unreasonably withheld or delayed
except to the extent otherwise specifically provided herein. If either party
wishes to withhold any such consent or approval, such party shall promptly
notify the other party in writing specifying the reasons for withholding the
same. Any certificate or certification required hereunder shall be signed by a
duly authorized representative of the party making it and shall set forth the
information required hereunder with respect to such certificate, and the party
for whom it is made hereby warrants that the information given in each such
certificate will be complete and accurate in every material respect when given.
(m) Memorandum of Lease Upon the request of either party, Landlord
-------------------
and Tenant will execute and deliver, in recordable form, a memorandum or short
form of this Lease, and either Landlord or Tenant, at their respective options,
may record such memorandum or short form of this Lease.
IN WITNESS WHEREOF this Lease has been executed the day and year first
above set forth.
TENANT: VISIO CORPORATION, a Washington corporation
By ______________________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, CFO and Senior Vice-President
of Finance and Operations
LANDLORD: WRC TRADE CENTER LLC, a Washington limited liability company
By: ▇▇▇▇▇▇ RUNSTAD ASSOCIATES LIMITED PARTNERSHIP, a
Washington limited partnership, its sole member
By: ▇▇▇▇▇▇ RUNSTAD & COMPANY, a Washington
corporation, its general partner
By: ___________________________________
H. ▇▇▇ ▇▇▇▇▇▇▇, Chairman and CEO
GUARANTOR: ▇▇▇▇▇▇ RUNSTAD ASSOCIATES LIMITED PARTNERSHIP, a Washington
limited partnership
By: ▇▇▇▇▇▇ RUNSTAD & COMPANY, a Washington corporation, its
general partner
By: ________________________________________
H. ▇▇▇ ▇▇▇▇▇▇▇, Chairman and CEO
▇-▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ )
) ss.
COUNTY OF KING )
THIS IS TO CERTIFY that on this 9th day of January 1998, before me, the
undersigned, a notary public in and for the state aforesaid, duly commissioned
and sworn, personally appeared ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, to me known to be the CFO and
Senior Vice-President of finance and Operations of VISIO CORPORATION, the
corporation that executed the within and foregoing instrument, and acknowledged
the said instrument to be the free and voluntary act and deed of said
corporation for the uses and purposes therein mentioned, and on oath stated that
they were authorized to execute said instrument, and that the seal affixed, if
any, is the corporate seal of said corporation.
WITNESS my hand and official seal the day and year in this certificate
first above written.
Signature__________________________________________________
Printed Name_______________________________________________
Notary public in and for the state of Washington
residing at________________________________________________
My appointment expires_____________________________________
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
THIS IS TO CERTIFY that on this 9th day of January, 1998, before me, the
undersigned, a notary public in and for the state aforesaid, duly commissioned
and sworn, personally appeared H. ▇▇▇ ▇▇▇▇▇▇▇, to me known to be the Chairman
and CEO of ▇▇▇▇▇▇ RUNSTAD & COMPANY, the corporation that executed the within
and foregoing instrument on behalf of and as general partner for ▇▇▇▇▇▇ RUNSTAD
ASSOCIATES LIMITED PARTNERSHIP which in turn was acting on behalf of and as the
sole member and manager of WRC TRADE CENTER LLC, and acknowledged the said
instrument to be the free and voluntary act and deed of said corporation,
partnership and limited liability company respectively for the uses and purposes
therein mentioned, and on oath stated that he was authorized to execute said
instrument.
WITNESS my hand and official seal the day and year in this certificate
first above written.
Signature__________________________________________________
Printed Name_______________________________________________
Notary public in and for the state of Washington
residing at________________________________________________
My appointment expires_____________________________________
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
THIS IS TO CERTIFY that on this 9th day of January, 1998, before me, the
undersigned, a notary public in and for the state of Washington, duly
commissioned and sworn, personally appeared H. ▇▇▇ ▇▇▇▇▇▇▇, to me known to be
the Chairman and CEO of ▇▇▇▇▇▇ RUNSTAD & COMPANY, the corporation that executed
the within and foregoing instrument on behalf of and as general partner for
▇▇▇▇▇▇ RUNSTAD ASSOCIATES LIMITED PARTNERSHIP, and acknowledged the said
instrument to be the free and voluntary act and deed of said corporation and
limited partnership respectively for the uses and purposes therein mentioned,
and on oath stated that they were authorized to execute said instrument.
WITNESS my hand and official seal the day and year in this certificate
first above written.
Signature__________________________________________________
Printed Name_______________________________________________
Notary public in and for the state of Washington
residing at________________________________________________
My appointment expires_____________________________________
B-24
EXHIBIT B
TO
WORLD TRADE CENTER EAST OFFICE BUILDING
LEASE AGREEMENT
TENANT IMPROVEMENTS FOR
VISIO CORPORATION
JANUARY 9, 1998
I. IMPROVEMENTS PROVIDED BY LANDLORD: Landlord agrees to provide
improvements to the Building and the Premises pursuant to the attached Exhibit
D, Base Building Specifications, and the plans and specifications identified on
Exhibit B-1.
II. IMPROVEMENTS BY TENANT/REIMBURSEMENT BY LANDLORD: Design and
construction of all improvements in the Premises beyond those listed in Exhibits
D and B-1 shall be provided at Tenant's expense. Landlord shall pay the cost of
such additional improvements up to an amount equal to $35.00 per rentable square
foot leased by Tenant ("Allowance").
Landlord shall expedite all permits and government approvals and
assume specific responsibility for delivery of the Premises as defined in the
Lease and this Exhibit B, provided Tenant shall have met the drawing delivery
dates herein and, unless the general contractor engaged by Landlord to construct
the shell and core of the Building ("General Contractor") is chosen to construct
the Initial Tenant Improvements pursuant to Section V(A) below, Landlord shall
manage the bidding of tenant improvements to at least three (3) firms acceptable
to Tenant, one of which shall be ▇▇▇▇▇▇▇ and Associates, Inc. and one of which
will be the General Contractor. The contractor selected by Tenant to construct
the Tenant Improvements shall be hereinafter known as the "Tenant Improvement
Contractor". In addition, Tenant shall have the right to select its own
subcontractors or service providers to perform the work listed below. These
subcontractors shall work under the direction of the Tenant Improvement
Contractor:
a) Telecommunications
b) Data Systems and Cabling
c) Security--The security system shall be discussed in the context of
the planned building security system.
d) Audio Visual
e) Food Service
III. BUILDING STANDARD IMPROVEMENTS: Landlord and Tenant shall
mutually agree upon Building Standard details for lighting, window coverings;
doors; relites; hardware and ceiling treatment. Building Standards shall be
equal in quality to tenant improvement standards established for the Second &
Seneca Building.
Tenant shall use Building Standard heating, ventilating and air
conditioning distribution and controls.
B-1
IV. DESIGN OF TENANT IMPROVEMENTS: Tenant, at Tenant's cost and with
the approval of Landlord, has retained ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ("Tenant's Office
Planner") to prepare the necessary drawings for Basic Plans and supply the
information necessary to complete the Working Drawings and Engineering Drawings
referred to in Section IV(B) of this Exhibit B for construction of the tenant
improvements in Tenant's area. All Tenant's Plans shall be subject to approval
of Landlord (not to be unreasonably withheld or delayed) in accordance with
Section IV(C) of this Exhibit B, and Landlord agrees to respond in writing with
approval or comments within five (5) business days after receipt of each
component of Tenant's Plans.
Tenant's Office Planner shall ensure that the work shown on Tenant's
Plans is compatible with the basic Building Plans and that necessary basic
Building modifications are included in Tenant's Plans. Such modifications shall
be subject to Landlord approval. In the event that any of Tenant's design
requirements impact the shell and core design, so long as any shell and core
changes can be incorporated into the shell and core documents prior to document
completion at no cost to Landlord, then these changes to the shell and core
documents shall be included and Tenant shall not be required to pay for these
changes to the documents.
If such changes are made subsequent to completion of the shell and
core documents or Landlord's Architect reasonably charges Landlord for such
changes, then such modifications shall be subject to Landlord's approval and the
cost of the changes to the documents shall be paid by Tenant.
Any changes requested to the shell and core design by Tenant which
increase the cost of the shell and core construction shall, subject to the
process described in Section V(C) below, be paid by Tenant.
On or before the indicated dates, Tenant shall supply Landlord with
one (1) reproducible copy and five (5) black line prints of the following Tenant
Plans with respect to the Tenant Improvements in the Initial Premises and in any
other portion of the Premises constructed at the same time as those in the
Initial Premises:
A. BASIC PLANS DELIVERY DATE: February 18, 1998 .
The Basic Plans due on this date shall be signed by Tenant and
include:
Architectural Floor Plans: These shall be fully dimensioned
floor plans showing partition layout and identifying each room with a number and
each door with a number. The Basic Plans must clearly identify and locate
equipment requiring plumbing or other special mechanical systems, area(s)
subject to above-normal floor loads, special openings in the floor, and other
major or special features.
B. WORKING DRAWINGS DELIVERY DATE: April 1, 1998 .
On this date and at Tenant's expense, Tenant's Office Planner
shall produce four (4) sets of Full Working Drawings for construction from the
Basic Plans using the Pin Bar or CADD System, which system shall be approved by
Landlord for compatibility with the other Building drawings. The four (4) sets
of Working Drawings due on this date shall be signed by the Tenant and include
all items in the Basic Plans referenced in Section IV(A) above plus the
following additional information:
B-2
(1) Electrical and Telephone Outlets: Locate all power and
telephone requirements: Dimension the position from a corner and give height
above concrete slab for all critically located outlets. Identify all dedicated
circuits and identify all power outlets greater than 120 volts. For the
equipment used in these outlets which require dedicated circuits and/or which
require greater than 120 volts, identify the type of equipment, the
manufacturer's name and the manufacturer's model number, and submit a brochure
for each piece of equipment. Also identify the manufacturer's name of the phone
system to be used and the power requirements, size, and location of its
processing equipment.
(2) Reflected Ceiling Plan: Lighting layout showing location and
type of all Building Standard and special lighting fixtures.
(3) Furniture Layout: Layout showing furniture location so that
Landlord's engineer can review the location of all light fixtures.
The Allowance shall be applied to the cost of the engineers retained
by Tenant's Office Planner preparing plumbing (Holiday Parks), electrical
(Evergreen Electrical), heating, air conditioning (Holiday Parks) and structural
plans (KPFF) (Engineering Drawings) for Tenant's improvements based on the
signed Working Drawings. The Allowance shall also be applied to any necessary
review of the Engineering Drawings by Landlord's shell and core engineer
(▇▇▇▇▇▇▇ Engineers, Inc.).
C. FINAL PLANS REVIEW DATE: April 24, 1998.
On this date, Tenant's Office Planner shall deliver to Landlord
and Tenant for review and approval four (4) complete sets of Final Plans which
will incorporate the Working Drawings referenced in Section IV(B) above, plus
the following additional information:
(1) Millwork Details: These drawings shall be in final form with
Tenant's Office Planner's title block along the right border of the drawing, and
shall include construction details of all cabinets, paneling, trim, bookcases,
and door and jamb details for non-Building Standard doors and jambs.
(2) Keying Schedules and Hardware Information: This information
shall be in final form and include a preliminary Keying Schedule indicating
which doors are locked, plus an "X" on the side of the door where the key will
be inserted if a keyed door. Complete specifications for all non-Building
Standard hardware will also be provided. The final keying schedule will be
completed by October 1, 1998.
(3) Room Finish and Color Schedule: This information shall be in
final form and include locations and specifications for all wall finishes, floor
covering and base for each room.
(4) Construction Notes and Specifications: Complete
specifications for every item included except those specified by the Landlord.
D. FINAL PLANS DELIVERY DATE: May 1, 1998.
The four (4) sets of Final Plans approved by Landlord and Tenant
and due on this date shall include all the Final Plans referenced in Section
B-3
IV(C) above. Final Plans are to be signed by Tenant and delivered to Landlord by
the Final Plans Delivery Date. Landlord shall return one (1) signed set to
Tenant for Tenant's records. Landlord will incorporate or submit Engineering
Drawings with Tenant's Final Plans for transmittal to the General Contractor.
Tenant shall be responsible for delays and additional costs in
completion of the Tenant Improvements incurred as a result of changes made to
any of Tenant's Plans after the specified Plan Delivery Date, delays caused by
Tenant's failure to comply with the Plan Delivery Dates, Tenant's failure to
provide adequate specifications or information for the completion of Tenant's
Plans, or by delays caused by Tenant's specification of special materials; but
only to the extent any of the foregoing delays or prevents critical path work or
adversely affects completion.
V. CONSTRUCTION OF TENANT IMPROVEMENTS
A. AUTHORIZATION TO PROCEED. Upon completion of Tenant's Final
Plans, the Final Plans will be submitted to General Contractor, for pricing.
General Contractor shall have three (3) weeks to provide their bid proposal with
respect to completion of the Initial Tenant Improvement Work pursuant to the
Final Plans, and if Tenant, Landlord and General Contractor have not agreed on
hiring General Contractor within two (2) weeks after receipt of General
Contractor's bid, then the work contemplated in Tenant's Final Plans shall go
out to bid as described in Article II above. The final construction contract to
be entered into between Landlord and the Tenant Improvement Contractor
(including, but not limited to, the guaranteed maximum price to be contained
therein) shall also be subject to Tenant's review and approval, such approval
not to be unreasonably withheld. If the General Contractor is not selected as
the Tenant Improvement Contractor, Landlord shall entertain bids from the three
(3) firms and Landlord and Tenant shall review all pricing documentation
received from the bidding tenant improvement contractors, including sub bids,
quantities, and unit prices. Within ten (10) days of receipt of such prices and
prior to execution of the Initial Tenant Improvements construction contract,
Tenant shall give Landlord written authorization to complete the Premises in
accordance with such Final Plans and naming the Tenant Improvement Contractor.
Tenant may in such authorization delete any or all items of extra cost; however
if the General Contractor is selected, then if Landlord deems these changes to
be extensive, at its option, Landlord may within three (3) business days of
Tenant's written authorization refuse to accept the authorization to proceed
until all changes have been incorporated in the Final Plans signed by Tenant and
written acceptance of the revised price has been received by Landlord from
Tenant. In the absence of such written authorization to proceed and if
Landlord's contractor is selected, then Landlord shall not be obligated to
commence work on the Premises and Tenant shall be responsible for any costs due
to any resulting delay in completion of the Premises and as provided in Section
3(c) of the Lease.
B. PAYMENTS. Refer to Section 3(b) from the body of the Lease.
C. FINAL PLANS AND MODIFICATIONS. If Tenant shall request any
change after the Final Plans are submitted, Tenant shall request such change in
writing to Landlord and such request shall be accompanied by all plans and
specifications necessary to show and explain changes from the approved Final
Plans. After receiving this information, Landlord shall give Tenant within five
(5) business days a written price for the cost of engineering design services
and an estimate of construction costs to incorporate the change in Tenant's
Final Plans. If Tenant
B-4
approves such price in writing within five (5) business days, Tenant shall
within five (5) business days have such Final Plans changes made to engineering
drawings and Tenant shall have changes made to other Final Plan design
documents. Within three (3) business days after completion of such changes in
the Final Plans, Landlord shall provide Tenant a written breakdown of the final
costs, if any, which shall be chargeable or credited to Tenant for such change,
addition or deletion and any impact such changes shall have on the schedule. The
cost for such changes, whether chargeable or credited to Tenant, shall include
the following Landlord coordination fee: for changes up to Five Thousand Dollars
($5,000), seven percent (7%); for changes up to Ten Thousand Dollars ($10,000),
five percent (5%); and for changes exceeding Ten Thousand Dollars ($10,000),
three percent (3%). If Tenant wishes to proceed with such changes, Tenant shall
within five (5) business days so notify Landlord in writing. In the absence of
such notice, Landlord shall proceed in accordance with the previously approved
Final Plans before such change, addition or deletion was requested. In
accordance with Section 3(c) of the Lease, Tenant shall be responsible for any
resulting delay in completion of the Premises due to modification of Final
Plans. Tenant shall also be responsible for any demolition work required as a
result of the change.
D. IMPROVEMENTS CONSTRUCTED BY TENANT. If any work is to be
performed in connection with the Initial Tenant Improvements on the Premises by
Tenant or Tenant's contractor:
(1) Such work shall proceed upon Landlord's written approval
(not to be unreasonably withheld) of (i) Tenant's contractor, (ii) general
liability and property damage insurance satisfactory to Landlord carried by
Tenant's contractor, which insurance shall not be required to exceed levels
carried by General Contractor, (iii) detailed plans and specifications for such
work, and (iv) amount of general conditions directly attributable to work
performed by Tenant's contractor and approved in advance by Tenant to be paid by
Tenant to Landlord for the services still provided by General Contractor or
Tenant Improvement Contractor.
(2) All work shall be done in conformity with a valid building
permit when required, a copy of which shall be furnished for Landlord before
such work is commenced, and in any case, all such work shall be performed in
accordance with all applicable governmental regulations. Notwithstanding any
failure by Landlord to object to any such work, Landlord shall have no
responsibility for Tenant's failure to meet all applicable regulations.
(3) All work by Tenant or Tenant's contractor shall be done with
union labor in accordance with all union labor agreements applicable to the
trades being employed, unless otherwise agreed to in writing by Landlord.
(4) All work by Tenant or Tenant's contractor shall be scheduled
through Landlord or, with Landlord's approval, directly with the General
Contractor or Tenant Improvement Contractor. Landlord shall make best efforts to
accommodate work by Tenant or Tenant's contractor during times requested.
(5) Tenant or Tenant's contractor shall arrange for necessary
utility, hoisting and elevator service with the General Contractor or the Tenant
Improvement Contractor and shall pay such reasonable charges for such services
as may be charged by the General Contractor or the Tenant Improvement
Contractor. This will be included in the general conditions of Subsection
(1)(iv) above.
B-5
(6) Tenant shall promptly reimburse Landlord for costs incurred
by Landlord due to faulty work done by Tenant or its contractors, or by reason
of any delays caused by such work, or by reason of inadequate clean-up. Tenant
shall receive notice from Landlord and a reasonable opportunity to cure damages
prior to Landlord undertaking corrective action.
(7) Prior to commencement of any work on the Premises by Tenant
or Tenant's contractor, Tenant or Tenant's contractor shall enter into an
indemnity agreement and a lien priority agreement satisfactory to Landlord
indemnifying and holding harmless Landlord and the General Contractor or the
Tenant Improvement Contractor for any liability, losses or damages directly or
indirectly from lien claims affecting the land, the Building or the Premises
arising out of Tenant's or Tenant's contractor's work or that of subcontractor
or suppliers, and subordinating any such liens to the liens of construction and
permanent financing for the Building.
(8) Landlord shall have the right to post a notice or notices in
conspicuous places in or about the Premises announcing its non- responsibility
for the work being performed therein.
E. TENANT'S ENTRY TO PREMISES. Tenant's entry to the Premises for
any purpose, including without limitation, inspection or performance of Tenant
Construction by Tenant's agents, prior to the Commencement Date as specified in
Section 3(a) of the Lease shall be scheduled in advance with Landlord and shall
be subject to all the terms and conditions of the Lease, except the payment of
Rent and Additional Rent. Tenant's entry shall mean entry by Tenant, its
officers, contractors, Office Planner, licensees, agents, servants, employees,
guests, invitees, or visitors. Landlord will make reasonable efforts to
accommodate Tenant's request for access to the Premises at all times. Tenant
will supply Landlord with a pre-approved list of individuals who will be allowed
to have access to the Premises prior to the Commencement Date.
F. TENANT'S TELEPHONE AND COMPUTER/DATA SERVICE. Tenant is
responsible for Tenant's telephone service, computer and data service, obtaining
any applicable permits, and related cabling. Tenant shall select and coordinate
installation of such communication and information systems with the Landlord
pursuant to Section 36 of the Lease and item V(D)(4) of this Exhibit B.
Landlord shall provide basic telephone service to the Building terminating in
the Main Telephone Room at the PM Garage ▇▇▇▇▇.
▇-▇
EXHIBIT C
ADDENDUM TO THE LEASE AGREEMENT BETWEEN
WRC TRADE CENTER LLC ("LANDLORD")
AND
VISIO CORPORATION ("TENANT")
DATED JANUARY 9, 1998
1. Tenant's Premises and Pro Rata Share.
-------------------------------------
(a) The rentable area of the Premises is:
Floor Net Rentable Square Feet
----- ------------------------
1 26,009
2 31,991
3 33,341
4 31,225
5 31,225
6 30,136
-------
TOTAL 183,927
=======
(b) Recalculation: The total floor area of the Premises with
-------------
respect to which Tenant shall pay rent shall be the "net rentable area" of space
included in the Premises, determined from the Final Plans. Tenant's net
rentable area of the Premises presented in Section 1(c) of the Lease and Section
1 of this Exhibit C shall be recalculated by Landlord and amended in this Lease
to accurately reflect the net rentable square footage comprising the Premises as
soon as Final Plans for the Tenant's Premises are completed. Such recalculation
shall be completed no later than thirty (30) days after completion of Final
Plans. Any dispute regarding such recalculation shall be resolved by
arbitration under Section 9 of this Exhibit C.
2. Rent.
----
(a) Rent commencement schedule: Tenant shall pay Rent and
--------------------------
Additional Rent commencing upon the Commencement Date with respect to the
portions of the Premises noted in the Take-Down Schedule below (each such
portion of the Premises after the Initial Premises being sometimes hereinafter
referred to as a "Stage"), but in no event shall a Stage be taken down later
than the dates as noted unless Tenant is unable to occupy such space by such
date as a result of Landlord Delay. If Tenant occupies a Stage for normal
business purposes prior to the dates set forth below with respect to such Stage,
Rent and Additional Rent shall commence on the date of such occupancy, provided,
however that neither Rent nor Additional Rent shall commence on any part of the
Premises, including the Initial Premises, prior to January 1, 1999. The initial
Rent rate shall be $18.75 per net rentable square foot per year. On the fifth
(5th) anniversary of the Commencement Date, the Rent for the entire Premises
shall increase to $20.75 per net rentable square foot per year.
Take-Down Schedule:
------------------
--------------------------------------------------------------------------------------------------------
PORTION OF PREMISES/STAGE TAKE-DOWN DATE
--------------------------------------------------------------------------------------------------------
Initial Premises: One half of Floor 1, one-half of Floor Commencement Date, but no earlier than
3, all of Floors 4, 5 and 6 January 1, 1999
--------------------------------------------------------------------------------------------------------
C-1
--------------------------------------------------------------------------------------------------------
Balance of Floor 1 No later than seven months after the
Commencement Date (anticipated to be August
1, 1999)
--------------------------------------------------------------------------------------------------------
Balance of Floor 3 No later than ten months after the
Commencement Date (anticipated to be
November 1, 1999)
--------------------------------------------------------------------------------------------------------
One-half of Floor 2 No later than twelve months after the
Commencement Date (anticipated to be
January 1, 2000)
--------------------------------------------------------------------------------------------------------
Balance of Floor 2 No later than fourteen months after the
Commencement Date (anticipated to be March
1, 2000)
--------------------------------------------------------------------------------------------------------
(b) Tenant may elect to change the above order in which it leases the
Stages of the Premises (space taken after the Initial Premises), provided (i)
Tenant gives Landlord written notice of such change, along with the final plans
for the improvements in such Stage, no later than the date ninety (90) days
prior to Tenant's scheduled occupancy date for such Stage; and (ii) the amount
of rentable area upon which the Commencement Date shall first become effective,
as set forth in the above schedule, shall not be reduced by any such change.
(c) If Tenant occupies for normal business operations a portion of a
Stage prior to the outside date by which Rent and Additional Rent shall commence
on such Stage, Rent and Additional Rent shall then commence on the entire Stage
in which Tenant has commenced its business operations, and not merely on the
space so occupied by Tenant.
(d) The service areas described in Section 3(b) of the Lease must be
located on Floors other than Floor 2 of the Building. Tenant shall pay Rent and
Additional Rent on such service areas in the same proportion to the non-service
areas in the Building on which Tenant is then paying Rent and Additional Rent.
If Tenant later occupies for normal business operations, and thus pays Rent and
Additional Rent, on greater areas of the Building, Tenant shall simultaneously
begin to pay Rent and Additional Rent on the same proportionate area of such
service areas.
(e) The lease rate for the Building is based on an estimate of shell
and core construction costs and sales tax totaling $74.58 per square foot of net
rentable space. The line item components of such estimated costs are set forth
on Exhibit H attached hereto. The lease rate will be adjusted downward (but not
upward) by no more than $0.25 per square foot per annum based on the difference
between this estimate and the actual costs, if less. The actual costs shall
assume no reduction for the sales tax credit described in Subsection (f) below.
This lease rate adjustment will be calculated at an 11% rate. Therefore, every
$1.00 per square foot reduction in actual versus estimated costs will reduce the
lease rate by $0.11 per square foot per annum for the 10 year term of the Lease.
This calculation will be made no later than thirty (30) days after Landlord's
receipt of a final billing from the contractor constructing the shell and core
of the Building.
(f) In addition, the lease rate may be reduced by the High Technology
Sales/Use Tax Deferral that Tenant and Landlord may receive from the Washington
State Department of Revenue. Landlord and Tenant shall apply for the tax
deferral as soon as practicable and shall diligently pursue obtaining the
deferral. The reduction in the rental rate will be spread over the first eight
(8) years of the Term to reflect one hundred percent (100%) of the tax credits
and deferrals realized by Landlord pursuant to the new legislation (RCW 82.63).
The aggregate amount of such credit shall be divided by 96 (eight years times
twelve months per year) and the quotient shall be the amount of the credit in
monthly rent attributable to this tax deferral (the "Tax Credit"). Tenant shall
initially pay the Rent without deduction for the Tax Credit, and upon receipt of
such payments Landlord shall deposit the Tax Credit into a separate interest-
bearing account (with interest accruing to the benefit of Tenant, subject to the
terms of this Subsection (f)), until the balance in such account, including
accrued interest, equals the amount of such tax deferral that would have to be
repaid to the Washington State Department of Revenue at that time if the tax
deferral were terminated. Once the balance of that account equals the repayment
obligation, Tenant may deduct the full Tax Credit from monthly Rent, and
Landlord shall release to Tenant all amounts in that account in excess of then
current repayment obligation until the balance of that account is reduced to
zero. Landlord's
C-2
obligations under this Section 2(f) and Tenant's ability to benefit from the Tax
Credit are expressly conditioned on Tenant continuing to comply with the
requirements imposed on a tenant of the tax deferral law, and Tenant hereby so
covenants to comply with that law. Tenant shall be entitled to only one
reduction (without double counting under Sections 2(e) and 2(f)) for this
sales/use tax reduction. This calculation will be made no later than thirty (30)
days after Landlord has received both a final billing from the contractor
constructing the shell and core of the Building and a determination of
qualification for such credit from the Washington Department of Revenue.
(g) The final determination of the rental rate shall be confirmed by
Landlord and Tenant in writing on the later of 60 days following initial
occupancy of the Building or 30 days after Landlord has received a final billing
from the contractor constructing the shell and core of the Building. At such
time, the parties shall also confirm in writing the Commencement Date and
Expiration Date of the initial term of this Lease.
(h) References to "one-half" of a floor in the above schedule shall
be based on the net rentable area of such Floor, as set forth in Section 1(a) of
this Exhibit C.
3. Option to Extend the Term of the Lease. Tenant shall have the
--------------------------------------
right, to be exercised as hereinafter provided, to extend the term of this Lease
("Extension Options") for the entire portion of the Premises then occupied by
Tenant (excluding subleased and assigned space) for two (2) periods of five (5)
years each (the "First Extended Term" and "Second Extended Term," respectively,
and each an "Extended Term") from the Expiration Date specified in Section 1(g)
of this Lease. If Tenant exercises its renewal option, Landlord and Tenant shall
execute and deliver an amendment to the Lease under the same terms and
conditions as this Lease, provided that:
(a) For the purposes of this Section 3, "same terms and conditions"
shall not be construed to include free rent, costs of tenant improvements,
leasing commissions, options to expand, renew or extend (except that during the
First Extended Term Tenant shall still be entitled to exercise the Second
Extended Term) or any other concessions related to the initial occupancy of the
Premises (including without limitation the Rent credits for reduced Building
construction costs and the Tax Credit).
(b) Tenant shall not at the time the option notice is delivered to
Landlord or at the commencement of the applicable Extended Term be in default
(beyond applicable notice and cure periods) in the performance of any term,
covenant, or condition herein contained.
(c) The Rent for the Extended Term(s) shall be the Fair Market
Renewal Rate, defined hereafter. "Fair Market Renewal Rate" shall mean the
projected net fair market rental rate at the commencement of the Extended Term
for renewal lease space in the Building or in comparable first-class office
buildings of similar size and stature, comparably located, for a comparable
term, taking into consideration all relevant factors (including, without
limitation, age, physical condition, total square footage, quality of
construction, services included, but excluding consideration of Tenant
improvements in the Initial Premises to the extent the cost thereof exceeded $35
per net rentable square foot), provided, however, that such rate shall not be
less than the net rental rate for the last year of the term immediately
preceding the Extended Term. When considering comparable rents, appropriate
adjustment shall be made for the fact that the Rent is net of all Operating
Costs and Taxes.
(d) On the effective date of the First Extended Term, Landlord will
provide a refurbishment allowance of Seven Dollars ($7.00) per rentable square
foot leased by Tenant. This allowance shall not be considered when determining
the Fair Market Renewal Rate in Subsection (c) above.
(e) Tenant shall exercise any Extension Option by written notice to
Landlord no later than eighteen (18) months prior to expiration of the then
current Lease term. If Tenant does not so exercise an Extension Option, the
Lease shall expire on the Expiration Date specified in the then current lease.
(f) Landlord and Tenant shall attempt to reach agreement as to the
Fair Market Renewal Rate at least one hundred twenty (120) days prior to the
commencement of the applicable Extended Term, and failing to reach such
agreement, the Fair Market Renewal Rate shall be determined as follows:
C-3
Within fifteen (15) days after the expiration of the above-mentioned
one hundred twenty (120) day period, Landlord and Tenant shall each
identify an impartial person to act as a valuation expert and notify
the other thereof. The expert specified in each such notice must be a
commercial real estate professional conducting business in Seattle,
Washington and having not less than ten (10) years' active experience
as a real estate professional in the downtown office leasing market
in Seattle, Washington. If either party fails to appoint an expert
within such fifteen (15) day period, then the determination of the
expert first appointed shall be final, conclusive and binding on both
parties.
The named experts shall together determine the Fair Market Renewal
Rate. If the experts fail to agree on the Fair Market Renewal Rate
within thirty (30) days of their appointment and the difference in
their conclusions about Fair Market Renewal Rate is ten percent (10%)
or less of the lower of the two determinations, Fair Market Renewal
Rate shall be the average of the two determinations.
If the two experts fail to agree on Fair Market Renewal Rate and the
difference between the two determinations exceeds ten percent (10%)
of the lower of the two determinations, then the experts shall
appoint a third expert, similarly impartial and qualified, to
determine the Fair Market Renewal Rate. Such third expert shall
determine the Fair Market Renewal Rate within thirty (30) days of his
or her appointment, and the average of the determinations of the two
closest experts is final, conclusive and binding on Landlord and
Tenant. Landlord and Tenant shall each execute and deliver an
agreement confirming annual rent for the Extended Term.
Landlord and Tenant shall each pay the fees of any expert appointed
by Landlord and Tenant, respectively, and Landlord and Tenant shall
each pay one-half (1/2) of the fees of the third expert, if any.
4. Expansion into the Balance of Space in the Building. Tenant shall
---------------------------------------------------
expand into the balance of the space in the World Trade Center East Office
Building upon the same terms and at the same rental rate as Tenant is then
paying for its initial space, pursuant to the schedule in Section 2 of this
Exhibit C. The expansion space shall become part of the Premises on the Take-
Down Date in such schedule (or earlier if occupied by Tenant for normal business
operations) subject to all the terms and conditions of this Lease including
Expiration Date, and the options to extend the term of the Lease. Landlord shall
provide the Tenant Allowance for the expansion space as specified in Section
3(b) of the Lease and Exhibit B, Section II. Tenant shall arrange by separate
contract, either with Landlord or with a separate contractor, to construct the
tenant improvements in such space.
5. Additional Expansion. Landlord shall use its commercially
--------------------
reasonable best efforts to provide additional expansion space in the Art
Institute Building or other nearby properties as requested by Tenant.
6. Transit. Recognizing that current Metro transit service to the
-------
World Trade Center site is inadequate, Landlord shall work with appropriate
agencies and government officials and shall use its best efforts to ensure
improved service sufficient to reasonably meet the commuting needs of Tenant's
employees. Any costs to provide for special transit services requested and
approved by Tenant shall be paid for by Tenant.
7. Storage Space. Upon Tenant's request, Landlord shall provide upon
-------------
Tenant's occupancy (or later, at Tenant's election) approximately 2,000 square
feet of storage space in the Garage. Rent for such storage space for the
initial term of the Lease shall be ten dollars ($10.00) per square foot per
year, payable monthly on or before the first day of each month, and shall be
increased annually by the same percentage increase during such year in the
Consumer Price Index (United States City Average for All Urban Consumers) - All
Items (1982-84=100) published by the United States Department of Labor, Bureau
of Labor Statistics. The most recently published index as of any comparison
date shall be used. Landlord shall have storage spaces made available in the
Garage in the locations identified on Exhibit K attached hereto.
8. Satellite Dish/Antenna: Tenant shall have the right to install one
----------------------
or more satellite dishes and/or antennas on the Building. Exhibit I sets forth
current market rates for rooftop license agreements. Tenant shall be charged
for the use of the rooftop as follows: the first antennae shall be
C-4
without charge; the charge for the second antennae shall be two hundred dollars
($200) per month, and the charge for the third, fourth and fifth antennas shall
be at seventy-five percent of then market rates. The foregoing rates shall apply
only to Type 1,2 or 3 antennas, as described in Exhibit I. Charges for other
Types of antennas, or for Type 1,2 or 3 antennas in excess of five (5), shall be
at full market rates. A separate license agreement, in a form to be mutually
agreed upon by Landlord and Tenant, shall be required for each such antennae. In
addition, Landlord shall install a reasonable number of cabling sleeves from
office floors to rooftop at no charge.
9. Arbitration for Construction Matters.
------------------------------------
(a) Applicability; Joinder; Statute of Limitations. All disputes,
----------------------------------------------
controversies and claims arising out of or relating to the construction of the
Tenant Improvements in the Initial Premises shall be settled by expedited
mandatory arbitration as set forth in this Section 9. All statutes of
limitations which would otherwise be applicable and any limitations upon claims
set forth in this Agreement shall apply to any arbitration proceeding under this
Section 9.
(b) Notice of Demand. Either party may demand arbitration by
----------------
notifying the other party in writing in accordance with the notice provisions of
Section 9. The notice shall describe the reasons for such demand, the amount
involved, if any, and the particular remedy sought. The notice shall also list
the name of one arbitrator qualified in accordance with subsection (d).
(c) Response. The party that has not demanded arbitration shall
--------
respond to the notice of demand within five (5) calendar days of receipt of such
--------
notice by delivering a written response in accordance with the notice provisions
of Section 9. The response shall list the name of a second arbitrator qualified
in accordance with Subsection (d). The response shall also describe
counterclaims, if any, the amount involved, and the particular remedy sought. If
a party fails to respond timely to the notice of demand, the arbitrator selected
by the party making such demand under Subsection (b) shall resolve the dispute,
controversy or claim within seven (7) calendar days of the deadline for
response.
(d) Qualified Arbitrator. Any arbitrator selected in accordance
--------------------
with Subsections (b) and (c) shall be any natural person not employed by either
of the parties or any parent or affiliated partnership, corporation or other
enterprise thereof, who shall also be a construction professional with at least
ten (10) years experience in the downtown Seattle real estate market.
(e) Appointment of Third Arbitrator. If a party responds timely
-------------------------------
to a notice of demand for expedited arbitration under Subsection (c), the two
arbitrators shall appoint a third arbitrator who shall be qualified in
accordance with subsection (d). Such third arbitrator shall be appointed within
seven (7) calendar days of receipt by the party demanding arbitration of notice
of response provided for under Subsection (c). If the two arbitrators fail to
timely appoint a third arbitrator, the third arbitrator shall be appointed by
the parties if they can agree within a period of five (5) calendar days. If the
parties cannot timely agree, then either party may request the appointment of
such third arbitrator by the Presiding Judge of the Superior Court of King
County, Washington; provided that the other party shall not raise any question
as to the court's full power and jurisdiction to entertain such application and
to make such appointment.
(f) Arbitration Hearing; Discovery; Venue. The arbitration hearing
-------------------------------------
shall commence within five (5) calendar days of appointment of the third
arbitrator as described in Subsection (e). The hearing shall in no event last
longer than two (2) calendar days. There shall be no discovery or dispositive
motion practice (such as motions for summary judgment or to dismiss or the like)
except as may be permitted by the arbitrators; and any such discovery or
dispositive motion practice permitted by the arbitrators shall not in any way
conflict with the time limits contained herein. The arbitrators shall not be
bound by any rules of civil procedure or evidence, but rather shall consider
such writings and oral presentations as reasonable business persons would use in
the conduct of their day to day affairs, and may require the parties to submit
some or all of their case by written declaration or such other manner of
presentation as the arbitrators may determine to be appropriate. It is the
intention of the parties to limit live testimony and cross examination to the
extent absolutely necessary to insure a fair hearing to the parties on
significant and material issues. Venue of any arbitration hearing conduct
pursuant to this agreement shall be in Seattle, Washington. It is also the
intention of the parties that any such arbitration shall not interfere with the
continued construction of the Tenant Improvements, and unless the dispute in
question makes it impossible for such construction to continue, the pending
arbitration shall not affect such construction schedule.
C-5
(g) Decision. The arbitrators' decision shall be made in no event
--------
later than seven (7) calendar days of the commencement of the arbitration
hearing described in Subsection (f). If three (3) arbitrators are appointed, a
majority decision shall prevail. The award shall be final and judgment may be
entered in any court having jurisdiction thereof. The arbitrators may award
specific performance of this Agreement. The arbitrators may also require
remedial measures as part of any award. The arbitrators may award attorneys'
fees and costs to the more prevailing party.
10. Retail Tenant. Landlord shall use its commercially reasonable best
-------------
efforts to place a food service provider in the retail space on the first floor
of the Building. If Landlord is unable to place a food service provider in such
space, Tenant shall have reasonable approval rights over the tenant placed in
such space, provided such approval shall not be unreasonably withheld if the
tenant is of a caliber and character consistent with operation of a first class
office building. Such retail space shall be self-contained, shall have its own
restrooms and shall not have direct access into the Building lobby. If the
retail Tenant is a restaurant/delicatessen operator, Tenant reserves the right
to require the restaurant/delicatessen operator to install a door on the west
side of such space for direct access into Tenant's premises.
11. Expansion Space. Pursuant to that certain Wall Street Building
---------------
Agreement of even date herewith ("Wall Street Agreement") between Tenant and
WRC Wall Street LLC, an affiliate of Landlord, Landlord, through its affiliate,
has agreed to provide Tenant with an option to expand into a new building to be
constructed by Landlord's affiliate. The lease to be entered into between
Tenant and WRC Wall Street LLC is hereinafter referred to as the "Wall Street
Lease." In certain instances, as set forth in Sections 3(a) and 3(b) of the
Wall Street Agreement (or pursuant to comparable sections in the Wall Street
Lease), Tenant has the right to terminate the Wall Street Agreement and, if then
in effect, the Wall Street Lease, if Landlord's affiliate is unable to meet
certain deadlines related to the construction of such new building.
If Tenant so elects to terminate the Wall Street Agreement and, if
then in effect, the Wall Street Lease, Tenant has certain remedies as set forth
in Section 3(c) of the Wall Street Agreement. If the Wall Street Agreement and,
if then in effect, the Wall Street Lease, are so terminated pursuant to Section
3(a) or Section 3(b) of the Wall Street Agreement (or pursuant to comparable
Sections in the Wall Street Lease), and if Tenant elects to move out of the
Premises as set forth in 3(c)(ii) of the Wall Street Agreement, and assign this
Lease or sublease the entire Premises, then Landlord's right to recapture all or
any portion of the Premises in connection with such assignment or sublease, as
set forth in Section 17(b) above, shall not apply, and Tenant shall be entitled
to receive the amount by which all sums paid under such sublease or assignment
exceed the total of the Rent and Additional Rent due under this Lease with
respect to such space. All costs of subleasing, assigning or re-tenanting such
space, including without limitation leasing commissions, design fees, legal fees
and tenant improvement costs, shall be borne by Tenant. Any provisions of
Section 17(b) to the contrary are superseded by this Section 11.
C-6
EXHIBIT E
SUBORDINATION, NON-DISTURBANCE AND
ATTORNMENT AGREEMENT
AGREEMENT made this _____ day of __________, 19__ ________________
("Lender"), ________________, a ________________ organized under the laws of the
state of ________________ ("Borrower"), and ________________, a ________________
organized under the laws of the state of ________________ ("Tenant").
RECITALS
Lender has made or is about to make a loan to Borrower in the amount of
________________ DOLLARS ($__________) to be evidenced by a deed of trust note
in that amount to be secured by, among other things, a mortgage or deed of trust
hereinafter collectively referred to as the "Mortgage" on Borrower's interest in
and to those certain premises (the "Mortgaged Premises") situated, lying and
being in the City of ________________, County of ________________, State of
________________, more particularly described on Exhibit A hereto together with
all improvements now existing and hereafter constructed thereon.
Tenant is now or is to become the tenant of a portion of the Mortgaged
Premises (the "Demised Premises") under a lease made by Borrower with Tenant
dated __________, 19__ (the "Space Lease"), which Space Lease is more
particularly described on Exhibit A, attached hereto and incorporated herein.
Tenant desires to be assured of continued occupancy of the Demised Premises
under the terms of the Space Lease and subject to the terms of the Mortgage.
NOW, THEREFORE, Tenant, Lender and Borrower hereby agree:
1. Tenant agrees that all of Tenant's rights under the Space Lease shall be
fully subject and subordinate to the lien of the Mortgage, as the same may be
extended, renewed, modified or replaced, and to all of Lender's rights
thereunder, subject to the provisions of this Agreement.
2. Lender agrees with Tenant that so long as conditions do not exist
entitling Borrower to declare the Space Lease at an end under the provisions of
Section _____ ***[default section]*** thereof (including the expiration of all
periods to cure), the Space Lease and the estate thereby created shall not be
terminated, neither Tenant nor any subtenant or assigns of Tenant shall be
joined by Lender or any holder of the Mortgage in any foreclosure proceedings,
and possession or enjoyment of the Demised Premises by Tenant, subtenant or
assigns shall not be interfered with by or in any foreclosure action, sale or
other action or proceeding instituted under or in connection with the Mortgage,
it being the express intention of Lender and Tenant that Tenant shall not be
disturbed in its possession and use of the Demised Premises under the Space
Lease for any reason other than the termination of the Space Lease in accordance
with its terms or the eviction of Tenant under and in accordance with the terms
of the Space Lease. The effectiveness of Tenant's obligations, liabilities,
covenants and representations under this Agreement is conditioned on the
performance of, and compliance with the covenants of this paragraph 2.
3. In the event of foreclosure of the Mortgage, whether by action,
pursuant to the power of sale therein contained or otherwise, or delivery of a
deed to the Mortgaged Premises in lieu of foreclosure of the Mortgage, whereby
the purchaser upon foreclosure or a grantee under a deed in lieu of foreclosure
of the Mortgage has notified Tenant that it has succeeded to the ownership of
all interests in the Demised Premises and the rights of the landlord under the
Space Lease, then the Space Lease shall continue in full force and effect as a
direct lease
E-1
between such purchaser or grantee of the Demised Premises and Tenant, upon and
subject to the terms, covenants and conditions of the Space Lease, including the
power of such purchaser or grantee as landlord thereunder to terminate the
interests of Tenant under and in accordance with the terms of the Space Lease,
and such purchaser or grantee will not disturb the possession of Tenant and will
be bound by all of the landlord's obligations under the Space Lease, except such
as are then not applicable or pertinent to the remainder of the term of the
Space Lease and further except that such purchaser or grantee shall not (i) be
liable for any previous act or omission of any prior landlord under the Space
Lease (including Lender or any receiver appointed in any such foreclosure action
or proceeding); (ii) be subject to any offsets, defenses or claims which have
accrued to Tenant against said prior landlord (except that any events entitling
Tenant to abatement or reduction in rent or lease termination under the terms of
the Space Lease, with respect to which events notice shall have been given to
Lender as provided below, shall continue to effect such abatement or reduction
or right of termination if not remedied within the period for cure provided
below); (iii) be bound by any modification of the Space Lease, or by any
prepayment of more than one month's rent made subsequent to the date hereof or
by any waiver or forbearance on the part of landlord made subsequent to the date
hereof that is materially adverse to the interest of such purchaser or grantee
unless such modification, prepayment, waiver or forbearance shall have been
previously approved in writing by Lender or any subsequent holder of the
Mortgage or such purchaser or grantee; (iv) be bound for return of any deposit
unless the same has been specifically transferred to such purchaser or grantee;
(v) be bound by any obligation of the landlord in the construction of Tenant's
improvements at the Demised Premises or any warranty of workmanship or materials
or any other personal guaranty of the landlord under the Space Lease; or (vi) be
liable for the commencement or completion of any construction or any
contribution toward construction or installation of any improvements upon the
Demised Premises required under the Space Lease, or any expansion or
rehabilitation of existing improvements thereon, or for restoration of
improvements thereon, or for restoration of improvements following any casualty
not required to be insured under the Space Lease or, if insurance required to be
carried by the Landlord under the Space Lease is in fact being carried as
therein required, for the costs of any restoration in excess of the proceeds
recovered under any insurance and any condemnation proceeds (except that this
clause shall not affect Tenant's rights to rental abatements or reduction, or
lease termination, as expressly provided in the Space Lease); provided, however,
notwithstanding the foregoing, if at any time such purchaser or grantee has
succeeded to the ownership of the interest in the Mortgaged Premises described
above and the rights of landlord under the Space Lease, the Space Lease is still
in effect and there has not occurred a permanent abatement or reduction in rent
thereunder, such purchaser or grantee shall have ten (10) days after the later
to occur of such succession or the giving of notice to such purchaser or grantee
of a condition which gives rise to a right to ▇▇▇▇▇ or reduce rent within which
to correct such condition, and if such correction is effected within such time,
Tenant will not assert the same as a cause for abatement or reduction in rent
accruing after such correction is effected. Notwithstanding the provisions of
clauses (v) and (vi) of the preceding sentence, if such purchaser or grantee
succeeds to the ownership of the Demised Premises and the rights of landlord
under the Space Lease prior to the Commencement Date under the Space Lease, and
proceeds with construction of the Building as defined in the Space Lease, then
Tenant shall have the rights under the Space Lease for the payment of the
Allowance (or unpaid portion thereof) unless Tenant terminates the Space Lease
in accordance with its terms.
4. Tenant consents to the foregoing provisions of Paragraphs 2 and 3
hereof and agrees to be bound thereby. So long as Tenant has quiet enjoyment of
the Demised Premises, Tenant further agrees (a) to attorn and to recognize as
landlord under the Space Lease (i) Lender, when in possession of the Mortgaged
Premises, (ii) a receiver appointed in an action or proceeding to foreclose the
Mortgage, (iii) a purchaser upon foreclosure or a grantee under a deed in lieu
of foreclosure of the Mortgage, or (iv) any subsequent purchaser of the
Mortgaged Premises, (b) upon request, to execute and deliver to said person or
entity any instrument or instruments in recordable form which maybe be necessary
or appropriate to effect the performance of the agreements herein contained,
provided that such instruments do
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not create, or risk the creation of increased risk of liabilities or obligations
of Tenant, and (c) to be bound to perform all of the obligations of the tenant
under the Space Lease.
5. Notwithstanding anything in the Space Lease to the contrary, Tenant
hereby agrees that Tenant will notify Lender unless Tenant has received written
notice from Lender that the Mortgage has been reconveyed, in writing of any
default(s) of the landlord under the Space Lease which would entitle Tenant to
cancel the Space Lease, and no notice of cancellation shall be effective unless
(a) Lender has received the aforesaid notice at its office address set forth
below (or such other place in the continental United States hereafter designated
to Tenant from time to time in writing) and (b) Lender has been afforded an
opportunity to cure such default(s) of landlord under the Space Lease within the
applicable grace period provided under the Space Lease (measured from receipt of
the aforementioned written notice) or, if such default(s) cannot reasonably be
cured within such period, to commence to cure such default(s) within such period
and diligently proceed therewith; provided, however, nothing herein shall affect
rights of Tenant to terminate the Space Lease in whole or in part pursuant to
the provisions of Articles _____, _____ or ______ ***[Term; Insurance and
Reconstruction; and Condemnation sections]*** of the Space Lease. Tenant agrees
that performance by Lender or its designee or assignee of any provision of the
Space Lease shall satisfy any conditions of Tenant requiring performance by the
landlord and if there is a default which is not capable of being cured by Lender
and Lender has instituted judicial or nonjudicial proceedings to foreclose the
Mortgage, Tenant agrees to waive such past defaults as to Lender or its
respective nominee, designee or assignee, provided that Lender or its respective
nominee, designee or assignee promptly effects a cure when it is capable of
doing so (except that any events entitling Tenant to abatement or reduction in
rent or rights to terminate the Space Lease under the Space Lease shall continue
to effect such abatement, reduction or termination rights).
6. Tenant acknowledges and recognizes that the Space Lease will be
assigned to Lender as collateral security for any loan made by Lender to
Borrower, which assignment, among other things, will prohibit Borrower from
thereafter modifying, terminating or accepting surrender of the Space Lease or
reducing, abating or accepting prepayment of any rent under the Space Lease more
than one calendar month in advance of its due date (without first obtaining the
consent of the Lender).
7. Nothing contained herein shall obligate Lender to perform the landlord's
obligations under the Space Lease until such time as Lender shall become the
owner of the Mortgaged Premises.
8. This Agreement shall be binding upon and inure to the benefit of the
respective successors and assigns of the parties hereto and cannot be changed or
terminated orally.
9. In the event of foreclosure of the Mortgage, whether by action,
pursuant to the power of sale therein contained or otherwise, or delivery of a
deed to the Mortgaged Premises in lieu of foreclosure of the Mortgage, and the
subsequent transfer of the Mortgaged Premises by the purchaser upon foreclosure
or grantee under a deed in lieu of foreclosure, such transferring purchaser or
grantee shall be automatically relieved of any and all obligations and
liabilities hereunder and under the Space Lease accruing from and after the date
of such transfer, provided the transferee of such transfer assumes such
obligations and liabilities in writing.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
LENDER: ____________________________
By:_________________________
Its:_______________________
BORROWER: ____________________________
By:_________________________
Its:_______________________
TENANT: ____________________________
By:_________________________
Its:_______________________
[ADD APPROPRIATE ACKNOWLEDGEMENTS]
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