1
EXHIBIT 10.29
--------------------------------------------------------------------------------
WORLD TRADE CENTER - WEST BUILDING
LEASE AGREEMENT
BETWEEN
PORT OF SEATTLE
LANDLORD
AND
XYPOINT CORPORATION
TENANT
--------------------------------------------------------------------------------
2
LEASE AGREEMENT
WORLD TRADE CENTER - WEST BUILDING
THIS LEASE made this 25th day of November 1998 ("Effective Date")
between the PORT OF SEATTLE, a Washington municipal corporation ("Landlord"),
and XYPOINT CORPORATION, a Washington corporation ("Tenant").
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the Landlord and Tenant agree as follows:
1. LEASE DATA DEFINITIONS AND EXHIBITS
The following terms as used in this Lease shall have the meanings
provided in this Section, unless otherwise specifically modified by
provisions of this Lease:
a. Building
"Building" shall mean The World Trade Center West Building, or
such other name as Landlord may designate from time to time,
situated on a portion of the real property located in the City of
Seattle, legally described in its entirety on Exhibit A attached
hereto and incorporated herein, and with an address of ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ in King County.
b. Premises
"Premises" shall mean 3,847 rentable square feet located on the
First (1st) floor of the Building ("Data Center") and 18,559
rentable square feet located on the Second (2nd) floor of the
Building, as outlined on the floor plans attached hereto and
incorporated herein as Exhibit B.
c. Improvements
"Landlord Improvements" shall mean the shell and core improvements
made by the Landlord to the Premises as described in Exhibit C
attached hereto and incorporated herein. "Tenant Improvements"
shall mean the improvements to the Premises made by Tenant.
d. Tenant's Pro Rata Share
"Tenant's Pro Rata Share" shall mean 32.24%.
- 2 -
3
In the event that a portion of the Building is damaged or
condemned or any other event occurs which alters the rentable area
of the Premises or the rentable area of the Building, Landlord may
adjust Tenant's Pro Rata Share of the Building to properly
reflect the proportion of the rentable area of the Building (as
altered by such event) which is attributable to the rentable area
of the Premises (as altered by such event).
e. Possession Date and Rent Commencement Date
"Possession Date" shall mean December 1, 1998. "Rent Commencement
Date" shall mean April 1, 1999, or upon completion of Tenant
Improvements, whichever is earlier.
f. Expiration Date
"Expiration Date" shall mean the date this Lease expires. The
Expiration Date will be five years after the Rent Commencement
Date, unless earlier terminated pursuant to Sections 19 and 22
herein.
g. Rent
"Rent" for the Premises shall mean $627,368 per year, payable in
equal monthly installments of $52,280.67. The Landlord will adjust
Rent from time-to-time pursuant to Sections 9, and 10. Landlord
shall charge Rent and "Additional Rent" pursuant to Sections 9 and
10, and any other payments due under this Lease beginning on the
Rent Commencement Date. Tenant shall begin paying Landlord Rent
for the Data Center at $8,976.33 per month upon the earlier of
either (1) the completion of the Tenant Improvements to the Data
Center, the installation of Tenant's equipment and the testing of
such equipment; or (2) March 1, 1999.
h. Security
"Security" shall mean three (3) months Rent, which is due within
ten (10) calendar days after the Effective Date of the Lease in a
form pursuant to Section 6.
i. Base Year
"Base Year" shall mean the 1999 calendar year.
- 3 -
4
j. Notice Addresses
If to Landlord: Port of Seattle
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Marine Real Estate
If to Tenant prior to the XYPOINT Corporation
Rent Commencement ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Date: ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Chief
Financial Officer
If to Tenant on or after the XYPOINT Corporation
Rent Commencement ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
Date: ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Chief
Financial Officer
k. Payment Address:
Port of Seattle
▇.▇. ▇▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Accounting
l. Exhibits
The following exhibits or riders are attached to and incorporated
into this Lease:
Exhibit A - Legal Description of Land
Exhibit B - Floor Plan of Premises
Exhibit C - Landlord Improvements
Exhibit D - Janitorial Standards
Exhibit E - Permitted Location for Tenant's Antennas
Exhibit F - Memorandum of Lease Form
Exhibit G - Additional Lease Terms
- 4 -
5
2. PREMISES
a. Premises. The Landlord leases to Tenant, and Tenant leases from
Landlord, upon the terms and conditions herein set forth, the
Premises described in Section 1 (b) of this Lease and as shown on
Exhibit B, together with rights of ingress and egress over Common
Areas in the Building and on the land on which the Building is
located ("Land"). The term "Common Areas" means those parts of the
Building and related areas and facilities outside the Premises
that are provided and designated by Landlord from time to time for
the general use and convenience of Tenant and of other tenants of
the Building and their respective authorized representatives,
guests and invitees. Common Areas include, without limitation,
designated pedestrian walkways, plazas and skybridges, landscaped
areas, public lobbies, elevators, sidewalks, loading areas,
parking areas, service corridors, central business systems,
plumbing, air conditioning, heating, ventilation and electrical
systems, restrooms, stairways, and arcades.
b. The Premises, Building and Land are collectively referred to in
this Lease as the "Property."
c. The Landlord has received a Certificate of Occupancy for the
Building. Landlord represents and warrants that the Building
complies with all federal, state and local laws and regulations
applicable to the Building and that to the best of Landlord's
knowledge the Building is free from hazardous waste or materials
as defined in Section 41 of this Lease. Tenant accepts the
Premises in its "AS-IS" CONDITION, improved with only Landlord
Improvements as set forth in Exhibit C, as of the Possession Date.
Tenant acknowledges and agrees that neither Landlord nor any
representative or agent of Landlord has made any representations,
expressed or otherwise, as to the condition of the Premises or the
suitability of the Premises for Tenant's intended use.
3. TERM
a. Initial Term
The initial term of this Lease is five (5) years ("Term"),
commencing on the Rent Commencement Date. The Lease will terminate
on the Expiration Date, or earlier pursuant to Section 19 or
Section 22.
b. Extension Term
Tenant has one (1) option to extend this Lease for additional term
of five (5) years ("Extension Period"), on the same terms and
conditions under the Lease immediately prior to the Extension
Period, except that Tenant shall have no
- 5 -
6
further right to extend this Lease, and the monthly Rent shall be
increased to the then prevailing market rate pursuant to the
procedure set forth in Section 5. Tenant can only exercise its
option to extend one time and only if Tenant is in full compliance
with all the terms of this Lease, both at the time of its exercise
of the option and at the end of the original Term. Tenant may only
exercise its option to extend this Lease by providing Landlord
written notice of its desire to extend the Lease no earlier than
one (1) year prior to the Expiration Date and no later than six
(6) months prior to the Expiration Date.
4. ACCEPTANCE OF PREMISES
a. Tenant shall accept the Premises on the Possession Date.
b. Upon prior written approval by Landlord, Landlord may in its sole
discretion allow Tenant and its contractor on the Premises to
perform work after the Effective Date and prior to the Possession
Date in which case the provisions of Sections 13, 14, 15 and 16
shall fully apply.
c. After the Possession Date, Landlord or its employees, agents or
contractors has Tenant's permission to enter the Premises as
needed for testing shell and core construction and Building
systems as required to obtain any necessary permits for the
Building. Landlord will not be liable for any delay in opening of
Tenant's Premises as a result of such testing. Landlord will use
reasonable efforts to conduct such testing so as not to
unreasonably interfere with the construction of the Tenant
Improvements.
5. RENT AND ADDITIONAL RENT
a. Rent.
Commencing on the Rent Commencement Date, and thereafter on or
before the first day of each calendar month, Tenant agrees to pay
Rent without demand and without deduction or offset. Tenant shall
be responsible for paying Rent on a monthly basis, without demand
and without deduction or offset, for the Data Center prior to the
Rent Commencement Date as set forth in Section 1(g). The Rent for
the Premises during the initial Term of the Lease is $627,368 per
year, payable in equal monthly installments, which equals
$52,280.67 per month.
Tenant shall send all rent payments to Landlord's office or at
such other place as Landlord may from time to time designate in
writing. The amount of the Rent includes the applicable Washington
State Leasehold Excise Tax, in accordance with RCW 82.29A (and any
amendments thereto, and any successor statutes) for the Premises.
Landlord shall pay all applicable leasehold excise taxes for the
- 6 -
7
Premises to the Washington State Department of Revenue when due,
except that Tenant shall be responsible for any increases in the
leasehold excise tax and/or any taxes levied in lieu of a tax on
said leasehold interest and/or any taxes levied on, or measured
by, the rentals payable hereunder imposed on Tenant or on Landlord
beyond the amounts payable in the Base Year. Landlord shall
indemnify Tenant against any claims, penalties, and interest
relating to or arising out of Landlord's failure to timely pay the
applicable leasehold tax for the Premises.
b. Late Charges.
Tenant hereby acknowledges that late payment by Tenant to Landlord
of Rent, or any other sums due hereunder will cause Landlord to
incur costs not otherwise contemplated by this Lease. Accordingly,
if any installment of Rent or any other sum due from Tenant shall
not be received by Landlord within ten (10) days after such amount
shall be due, then, without any requirement for notice to Tenant,
Tenant shall pay Landlord a late charge equal to 5% of such
overdue amount. The parties agree that such late charge represents
a fair and reasonable estimate of the costs Landlord will incur by
reason of late payment by Tenant. Acceptance of such late charge
by Landlord shall in no event constitute a waiver of Tenant's
default with respect to such overdue amount, nor prevent Landlord
from exercising any of the other rights and remedies granted
hereunder. In the event that a late charge is payable in this
Lease or otherwise, whether or not collected, for three (3)
installments of rent in any 12-month period, then Rent shall
automatically become due and payable quarterly in advance, rather
than monthly notwithstanding any other provision of this Lease to
the contrary. In addition to the late charges provided for in this
paragraph, interest shall accrue on Rent, or any other sums due
hereunder, at the rate of 18% per annum or the maximum rate
provided by law, whichever is less, beginning ten (10) days after
the Rent is due until paid.
c. Extension Period Rent.
The amount of the Rent for the Extension Period will be subject to
negotiation. If Tenant elects to extend the term of this Lease
pursuant to Section 3(b) of the Lease, Landlord will give Tenant
notice of the need to negotiate within 15 (fifteen) days after
Landlord's receipt of Tenant's election to exercise the option to
extend the Lease. In the absence of such notice, the rent
applicable for the prior rent period shall apply to the
forthcoming rent period also. Promptly following the notice of
negotiation, the parties shall negotiate in good faith for a
negotiated rent for the forthcoming rent period. Unless expressly
provided to the contrary in another paragraph of this Lease, such
negotiated rent shall be (100%) of the fair market rental value of
the Premises (determined on a square footage or other
- 7 -
8
appropriate basis customarily used for comparable properties) as
compared with such rental value being obtained on other premises
for similar use in the Greater Seattle area. In the event that the
parties cannot agree on the rent within ninety (90) days before
the effective date of the Extension Period, the rent shall be
determined, according to the foregoing formula, by three
arbitrators, each of whom shall be a member of the
Washington-British Columbia Chapter of the American Institute of
Real Estate Appraisers and shall be experienced in the evaluation
of the type of Premises subject to this Lease ("Third-Party
Determination"). Each party shall select and fully compensate one
of these arbitrators, and the third arbitrator shall be selected
by the other two and compensated in equal shares by the parties.
The Third-Party Determination of fair market rental value as set
forth in this Section 5(c) shall be final, conclusive and binding
on the parties.
6. BOND OR OTHER SECURITY
Tenant shall, within ten (10) days after the Effective Date of this
Lease, provide security in the form described in this Section. This
security is offered to the Landlord as additional consideration for
entering into this Lease and to guarantee Tenant's full performance under
this Lease. Tenant must obtain and deliver to the Landlord a cash
deposit, a good and sufficient corporate surety company bond or other
security, including a letter of credit ("Security"). The Security (if
other than cash) must be in a form acceptable to the Landlord. The
Security will equal to three (3) months Rent. If the Security is in a
form that periodically requires renewal, Tenant must renew the Security
not less than 45 days before the Security period expires. The form,
provisions and nature of the Security, and the identity of the surety or
other obligor, must remain in place during the term of this Lease. If the
Security is in the form of a letter of credit or bond, Landlord shall
provide three days prior written notice to Tenant before making any draw
on the same.
7. PARKING
Parking is available at the ▇▇▇▇ Street Pier Garage at prevailing monthly
rates on an unassigned self-park basis. Parking in the ▇▇▇▇ Street Pier
Garage is accessible seven (7) days a week, twenty-four (24) hours a day
to monthly parkers. For the entire term of this Lease, twenty-two (22)
parking spaces shall be available to Tenant in the ▇▇▇▇ Street Pier
Garage. Tenant shall be responsible for negotiating the monthly parking
rate or any other rate with the third-party operator of the ▇▇▇▇ Street
Pier Garage. Tenant's use of parking in the ▇▇▇▇ Street Parking Garage is
subject to all rules and regulations of Landlord or of the parking garage
operator, and the ordinances, rules, regulations and permit conditions of
the City of Seattle, Washington, which may be published from time to
time. Short-term hourly parking will be available at the ▇▇▇▇ Street Pier
Garage and in the Building on a space available basis during Normal
Business Hours except Saturdays (as defined in
- 8 -
9
Section 9), and except Sundays or legal holidays, for Tenant's clients
and customers. Landlord agrees that except for handicap and "off hours"
parking, the available parking in the Building will remain available for
short term hourly parking and shall not be leased or assigned for the use
of any tenant in the Building.
8. USES
The Premises are to be used only for general office purposes, including
using the portion of the Premises located on the First (1st) floor of the
Building as a data center, and for no other business or purpose without
the prior written consent of Landlord, which consent may be withhold if
Landlord, in its sole 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 Property 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.
Tenant shall not commit any act that will increase the then existing cost
of insurance on the Building without Landlord's prior written 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 prior written consent of
Landlord, use any apparatus, machinery or device in or about the Premises
which will cause any substantial noise, vibration or fumes. 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 any other action determined by Landlord as may be necessary to
eliminate the disturbance.
Tenant shall not place upon or install in windows or other openings or
exterior sides of doors or walls of the Premises or any part of the
Premises visible from the exterior of the Premises any signs, symbols,
drapes or other materials, without the prior written consent of Landlord.
Tenant shall comply with all laws relating to its use or occupancy of the
Premises and shall observe all 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 -
10
9. SERVICES AND UTILITIES
a. Standard Services
Landlord shall maintain the Premises, and the public and Common Areas of
the Building in good order and condition consistent with the operation
and maintenance of a first-class office building in downtown Seattle,
Washington. Landlord shall also maintain, repair and replace all
structural components of the Building. Landlord shall furnish the
Premises with electricity for normal office use, including lighting and
operation of low power usage office machines, water, elevator service,
sanitary sewer service, janitorial service, plumbing, air conditioning,
ventilation, heating and electrical systems, local telephone service and
all other utility services used in the Premises at all times during the
term of the Lease. The HVAC system shall be operated at standards
consistent with other first class office buildings in downtown Seattle,
Washington. Landlord shall also provide lamp replacement service for the
Building's standard light fixtures, toilet room supplies, window washing
at reasonable intervals, and customary building janitorial service for
the Common Areas. No janitorial service shall be provided for Saturdays,
Sundays or legal holidays. Attached hereto and incorporated by this
reference as Exhibit D are the current standards for janitorial service
for the Premises and Common Areas ("Janitorial Standards"). Landlord
reserves the right to amend, modify or change the Janitorial Standards in
the future provided such standards remain consistent with janitorial
standards of other first class office buildings in downtown Seattle. The
costs of any janitorial or other service provided by Landlord to Tenant
which are in addition to the services ordinarily provided Building
tenants shall be repaid by Tenant as Additional Rent upon receipt of
▇▇▇▇▇▇▇▇ therefor. Landlord shall also maintain exterior landscaping
around the Building and other Common Area Items.
b. Normal Business Hours
From 7:00 a.m. to 6:00 p.m. on weekdays and from 8:00 a.m. to 1:00
p.m. on Saturdays, excluding legal holidays ("Normal Business
Hours"), Landlord shall furnish to the Premises heat and air
conditioning. If requested by Tenant, Landlord shall furnish heat
and air conditioning at times other than Normal Business Hours and
the cost of such services as estimated by Landlord 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.
c. Interruption of Services
Landlord will 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
- 10 -
11
or facilities provided by Landlord pursuant to this Lease due to
any cause whatsoever, except when such loss, injury or damage is
caused by or resulting from the gross negligence or willful
misconduct of Landlord. 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 will be
deemed an eviction of Tenant or relieve Tenant from any of
Tenant's obligations. Landlord shall use all reasonable efforts in
good faith 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
Landlord acknowledges approval of the plans and specifications for
the separate heating and air-conditioning system for the Data
Center to be located on the First (lst) floor of the Building in
the Premises and to be installed by Tenant as part of the Tenant
Improvements ("Data Center HVAC System"). The Data Center HVAC
System shall be separately metered and Tenant shall be solely
responsible for the costs of operating, maintaining and repairing
the same. Upon termination or expiration of the Lease, Tenant may
at its sole discretion, remove the Data Center HVAC System. If
Tenant elects to remove the Data Center HVAC System, Tenant shall
be responsible for returning the Premises to its condition as
improved with Tenant Improvements, subject to reasonable wear and
tear. The Building mechanical system is designed to accommodate
heating loads generated by lights and equipment using up to 2.5
▇▇▇▇▇ per square foot. 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 agrees to pay the
Landlord's costs for installation of supplementary air
conditioning capacity or electrical systems as necessitated by
such equipment or lights.
e. Costs of Additional Services
In addition, Tenant shall in advance, on the first day of each
month during the Lease term, pay Landlord as Additional Rent the
reasonable amount estimated by Landlord as the cost of furnishing
electricity for the operation of such equipment or lights and the
reasonable amount estimated by Landlord as the costs of operation
and maintenance of supplementary air conditioning units
necessitated by Tenant's use of such equipment or lights. Landlord
shall be entitled to install and operate at Tenant's cost a
monitoring/metering system in the Premises to measure the added
demands on electricity, heating, ventilation, and air conditioning
systems resulting from such equipment or lights and from Tenant's
after-hours heating, ventilation and air conditioning service
requirements. Tenant
- 11 -
12
shall comply with Landlord's reasonable instructions for the use
of drapes, blinds and thermostats in the Building.
f. Supplemental Utility Providers
Due to the nature of Tenant's business, Tenant shall have the
right to contract with two additional (2) telecommunication
providers ("Supplemental Providers") in addition to
telecommunication provider which provides the basic service for
the Building. The Supplemental Providers shall have access to the
Building subject to (1) Landlord's prior review of and approval,
which shall not be unreasonably withheld, of all plans,
specifications and construction drawings of the Supplemental
Providers for the provision of telecommunication service to the
Building and Premises; and (2) Landlord's prior review and
approval, which shall not be unreasonably withheld, of the
proposed Supplemental Providers. Supplemental Providers approved
by Landlord shall be permitted to provide telecommunication
services to the Building upon the terms and conditions negotiated
with the Landlord.
10. COSTS OF OPERATIONS AND TAXES
a. Additional Rent
Tenant shall pay as Additional Rent its pro rate share of
increases in taxes and operating costs in excess of taxes and
operating costs in the 1999 Base Year ("Base Amounts"). Tenant's
pro rata share shall be 32.24%. Increases in taxes and in
operating costs over the applicable Base Amounts shall be
determined and shall be payable separately under this Section.
b. Definitions
For the purposes of this Section, "Taxes" mean any taxes and
assessments (including special district levies) on real property,
if applicable, and personal property payable during any calendar
year or fiscal 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 the rents collected (excluding any net income or franchise
tax) ("Taxes").
For purposes of this Section, "Operating Costs" or "Costs" mean
all expenses of Landlord for maintaining, operating and repairing
the Land and Building and the personal property used in connection
therewith, including without limitation insurance premiums,
utilities, customary management fees and other expenses
- 12 -
13
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 to correct original or latent defects in the
design, construction or equipment of the Building; (iv) attorneys'
fees, accounting fees and expenditures incurred in connection with
negotiating leases or financing or refinancing the Building; (v)
costs of improving or renovating space for a tenant or space
vacated by a tenant; (vi) structural repairs and replacements;
(vii) any amounts expended by Landlord to comply with
Environmental Laws as defined in this Lease; (viii) charitable or
political contributions; (ix) marketing, advertising and
promotional expenses related to all aspects of the Building; and
(x) costs of improvements required to be capitalized in accordance
with generally accepted accounting principles, except that
Operating Costs shall include amortization of capital improvements
(A) made subsequent to initial development of the Building 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 Possession 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.
"Year" means the calendar year.
c. Estimated Costs
On or before December 15 of each year after the Base Year,
Landlord shall furnish Tenant a written statement of estimated
Operating Costs and Taxes for such year; a calculation of the
amount, if any, by which such estimated Operating Costs and Taxes
will exceed the relevant Base Amounts; and a calculation of
Tenant's Pro Rata Share of any such amount. 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
- 13 -
14
such year, and Additional Rent for the balance of such year shall
be paid based upon such revised estimates.
d. Actual Costs
Within ninety (90) days after the end of each year after the Base
Year or as soon thereafter as practicable, Landlord shall deliver
to Tenant a written statement setting forth Tenant's Pro Rata
Share of the actual Operating Costs and Taxes in excess of the
Base Amounts during the preceding year. If the actual Operating
Costs in excess of the Base Amount or actual Taxes in excess of
the Base Amount, 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 in excess
of the Base Amount or actual Taxes in excess of the Base Amount,
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 any other
provision of this Section, Tenant shall not receive any credit or
offset against any other amount payable under this Lease to the
extent either actual Operating Costs or Taxes are less than the
applicable Base Amount.
e. Records and Adjustments
Landlord shall keep records showing all expenditures made in
connection with Operating Costs and Taxes, and such records shall
be available for inspection by Tenant within sixty (60) days after
receipt of the statement of actual costs; Landlord and Tenant
agree the results of any such audit or review shall remain
confidential. Tenant shall have six (6) months to conduct an audit
of Operating Costs and Taxes beginning sixty (60) days after
Tenant's receipt of the statement of actual costs. Tenant hereby
waives any right to any adjustment of sums paid under this Section
unless a claim in writing specifying the reasons therefor is
delivered to Landlord no later than eight (8) months after the end
of the year for which the sums were paid. Operating Costs and
Taxes shall be prorated for any portion of a year at the beginning
or end of the term of this Lease. Notwithstanding this Section,
the Rent payable by Tenant shall in no event be less than the Rent
specified in Section 1(g) of this Lease.
Any dispute with respect to Landlord's calculations of Common
Areas Maintenance Costs and any other costs and expenses or
Additional Rent under this Lease shall be resolved by the parties
through consultation in good faith within thirty (30) days of the
dispute arising. However, if the dispute cannot be resolved within
the said period, the parties shall submit the disputed matter to
an
- 14 -
15
independent, certified public accountant, selected by both
Landlord and Tenant, who shall audit such costs and expenses and
whose decision shall be final and binding on the parties. Where
there is a variance of ten percent (10%) or more between said
decision and the Landlord's determination of Tenant's Share of
Common Area Maintenance Cost and/or Additional Rent, Landlord
shall credit any overpayment toward the next rent payment due.
f. Taxes
Tenant is liable for, and shall pay throughout the term of this
Lease, (1) all license fees and all taxes payable for, or on
account of, the activities conducted on the Premises; (2) all
taxes on the property of Tenant on the Premises; and (3) any
increases in Taxes beyond the amounts payable in the Base Year on
the Premises and/or on the leasehold interest created by this
Lease and/or any taxes levied in lieu of a tax on said leasehold
interest and/or any taxes levied on, or measured by, the rentals
payable hereunder, whether imposed on Tenant or on Landlord. With
respect to any such taxes payable by Landlord which are on or
measured by the rent payments hereunder, Tenant shall pay to
Landlord with each rent payment an amount equal to the tax on, or
measured by, that particular payment. All other tax amounts for
which Landlord is or will be entitled to reimbursement from Tenant
shall be payable by Tenant to Landlord at least fifteen (15) days
prior to the due dates of the respective tax amounts involved;
provided, that Tenant shall be entitled to a minimum of ten (10)
days' written notice of the amounts payable by it.
11. CARE OF PREMISES
Landlord shall perform all normal maintenance and repairs reasonably
determined by Landlord 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 and at all times keep the Premises neat, clean, in a safe and
sanitary condition and free from pests.
Tenant shall not make any alterations, additions or improvements
("Alterations") in or to the Premises, or make changes to locks on doors,
or add, disturb or in any way change any plumbing or wiring ("Changes")
without first obtaining the written consent of Landlord and, where
applicable, in accordance with plans and specifications reasonably
approved by Landlord. Landlord shall promptly respond to Tenant's written
requests for Landlord's approval for Alterations and/or changes within
ten (10) business days after receiving Tenant's written request. As a
condition to its approval, Landlord in his sole discretion may require
Tenant to remove such Alterations or Changes upon the expiration
- 15 -
16
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. Any Alterations or Changes approved by Landlord and not required
to be removed upon the expiration or earlier termination of the Lease and
all Tenant Improvements, which constitute fixtures, shall become a part
of the realty and become property of the Landlord; provided, that Tenant
may at its sole discretion remove all Tenant Improvements from the
Premises that are Tenant's personal property and not fixtures. Any
Alterations or Changes required to be made to Tenant's Premises by any
amendment to any applicable building, health, safety, fire,
nondiscrimination, or similar law or regulation ("law"), or any new law
shall be made at Tenant's sole expense and shall be subject to the prior
written consent of Landlord. Tenant shall reimburse Landlord for any
reasonable sums expended for examination and approval of the
architectural and mechanical plans and specifications of the Alterations
and Changes 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.
12. ACCESS
Tenant shall permit Landlord and its agents to enter into and upon the
Premises at all reasonable times 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, 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.
Notwithstanding anything contained herein to the contrary, in exercising
any reserved rights of Landlord under this Section, Landlord shall use
its best efforts not to materially or unreasonably affect or interfere
with Tenant's use or business operations on the Premises. Landlord shall
be liable for any damages, losses or liabilities caused by Landlord, its
agents, employees, contractors, or invitees in exercising any of its
rights under this Section. In the event of such substantial and material
interference, Landlord shall first obtain the written consent of Tenant
which consent shall not be unreasonably withheld, and the Rent shall be
abated accordingly.
13. DAMAGE OR DESTRUCTION
a. Damage and Repair
If the Building is damaged by fire or any other cause to such
extent that the cost of restoration, as reasonably estimated by
Landlord, will equal or exceed thirty
- 16 -
17
percent (30%) of the replacement value of the Building (exclusive
of foundations) just prior to the occurrence of the damage, or if
insurance proceeds sufficient for restoration are for any reason
unavailable, then Landlord may no later than the sixty (60) days
following the damage, give Tenant a notice of its election to
terminate this Lease. In the event of such election, this Lease
shall be deemed to terminate on the third day after the giving of
said notice, and Tenant shall surrender possession of the Premises
within a reasonable time thereafter, and the Rent and Additional
Rent shall be apportioned as of the date of said surrender and any
Rent and Additional Rent paid for any period beyond such date
shall be repaid to Tenant. If the cost of restoration as estimated
by Landlord shall amount to less than thirty percent (30%) of said
replacement value of the Building and insurance proceeds
sufficient for restoration are available, or if Landlord does not
elect to terminate this Lease, Landlord shall restore the Building
and the Premises (to the extent of improvements to the Premises
originally provided by Landlord hereunder) with reasonable
promptness, subject to delays beyond Landlord's control and delays
in the making of insurance adjustments by Landlord, and Tenant
shall have no right to terminate this Lease except as herein
provided. However, Tenant shall have the right to terminate the
Lease 180 days after the damage upon 10 days prior written notice
to Landlord if it reasonably appears that the Building and
Premises cannot be restored within 270 days of the damage. To the
extent that the Premises are rendered untenantable, the Rent and
Additional Rent shall proportionately ▇▇▇▇▇, except in the event
such damage resulted from or was contributed to, directly or
indirectly, by the act, fault or neglect of Tenant, Tenant's
officers, contractors, agents, employees, clients, customers, or
licensees, in which event Rent and Additional Rent shall ▇▇▇▇▇
only to the extent Landlord receives proceeds from any rental
income insurance policy to compensate Landlord for such loss. No
damages, compensation or claim shall be payable by Landlord for
inconvenience, loss of business or annoyance arising from any
repair or restoration of any portion of the Premises or of the
Building. Landlord shall use all reasonable efforts to effect such
repairs promptly.
b. Destruction During Last Year of Term
In case the Building is substantially 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 given within sixty (60)
days of the date of such destruction.
c. Tenant Improvements
Except as for Tenant Improvements which constitute fixtures,
Landlord will not carry insurance of any kind on any Tenant
Improvements paid for by Tenant or on Tenant's furniture,
furnishings, equipment, or appurtenances of Tenant under this
- 17 -
18
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 (i) any loss or damage to the real or personal property of
either located anywhere in the Building or on the Property, 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
(ii) 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 use best efforts to 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. The Landlord, its employees and agents shall not be liable for any
injury (including death) to any persons or for damage to any
property regardless of how such injury or damage be caused,
sustained or alleged to have been sustained by Tenant or by
others, including but not limited to all persons directly or
indirectly employed by Tenant, or Tenant's agents, invitees,
contractors, or subcontractors, as a result of any condition
(including existing or future defects in the Premises) or
occurrence (including failure or interruption of utility service)
whatsoever related in any way to the Premises and the areas
adjacent thereto, or related in any way to Tenant's use or
occupancy of the Premises and of areas adjacent thereto, except
for injuries or damages caused by the gross negligence or willful
misconduct of Landlord. Tenant agrees to defend and to hold and
save the Landlord harmless from all liability, expenses or injury
to any persons or damage to any property (including attorneys'
fees, costs, and all expenses of litigation) in connection with
any such items of actual or alleged injury or damage to all
persons directly or indirectly employed by Tenant, or Tenant's
agents, invitees, contractors, or subcontractors or damage to the
Premises or to Tenant's property, except when such injury or
damage is caused by the gross negligence or willful misconduct of
the Landlord, or landlord's employees, agents, invitees, or
contractors. The Tenant expressly agrees that its duty to defend
and indemnify the Landlord includes indemnifying Landlord for
Tenant's negligent acts which are concurrent, contributory, or
both with the negligent acts Landlord, resulting in
- 18 -
19
said damage or injury, but only to the extent of Tenant's
negligence. However, to the extent this Lease is construed to be
subject to RCW 4.24.115, and where the injury or damage arises
from the concurrent negligence of the Landlord and Tenant,
Tenant's Indemnity will only extend to its negligence. Tenant and
Landlord agree and acknowledge that this provision is the product
of mutual negotiation.
b. In consideration of the Landlord's execution of this Lease,
Tenant hereby waives any immunity Tenant may have under applicable
workers' compensation benefit or disability laws, (including but
not limited to Title 51 RCW) in connection with the foregoing
indemnity. Such waiver shall not prevent Tenant from asserting
such immunity against any other persons or entities. Tenant and
Landlord agree and acknowledge that this provision is the product
of mutual negotiation.
16. INSURANCE
a. Liability Insurance
In addition, Tenant shall, at its own expense, maintain proper
liability insurance with a reputable insurance company or
companies reasonably satisfactory to the Landlord in the minimum
limits of $1,000,000 for bodily injuries and death, and for
property damage (or equivalent satisfactory to the Landlord) and
hereafter in such increased amounts as the Landlord may from time
to time specify, to indemnify both the Landlord and Tenant against
any such liability or expense.
The Landlord shall be named as additional insured, and shall be
furnished with appropriate evidence (as determined by Landlord) to
establish (1) that Tenant's insurance obligations as herein
provided have been met, and (2) that the insurance policy or
policies as herein required are not subject to cancellation
without at least forty-five (45) days' advance written notice to
the Landlord, except that such policies shall be subject to
cancellation with ten (10) days' advance written notice for
non-payment of a premium. Tenant shall furnish to the Landlord
from time to time evidence of renewal of insurance as required,
upon Landlord's request.
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 all of
Tenant's personal property and Tenant's Leasehold Improvements
that do not constitute fixtures in an amount not less than one
hundred percent (100%) of the replacement value thereof. As used
in this Lease, "Tenant's Leasehold Improvements" shall mean any
alterations, additions or improvements installed in
- 19 -
20
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. Landlord shall be responsible for ensuring
the Building and all fixtures within the Premises.
c. Insurance Policy Requirements
All insurance required under this Section 16 shall be with
companies rated A or better by A.M. Best or otherwise reasonably
approved by Landlord. No insurance policy required under this
Section 16 shall be canceled or reduced in coverage except after
forty-five (45) 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 Possession Date, and
from time to time thereafter, certificates of insurance showing
the existence and amounts of same and showing 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 shall be written as primary
policies and not contributing to or in excess of any coverage
Landlord may choose to maintain.
17. COMMON AREAS
Landlord gives to Tenant and its authorized representatives, invitees and
guests, the nonexclusive right to use the Common Areas, with others who
are entitled to use the Common Areas, subject to Landlord's rights set
forth in this Section.
a. Landlord has the right to:
(1) Establish and enforce reasonable and non-discriminating
rules and regulations applicable to all tenants concerning
the maintenance, management, use, and operation of the
Common Areas.
(2) Temporarily close any of the Common Areas to the extent
required in the opinion of Landlord to prevent a dedication
of any of the Common Areas to permanent public use or the
accrual of any rights of any person or of the public to the
Common Areas. Landlord will consult with Tenant regarding
the times for the temporary closures and to use its best
efforts to
- 20 -
21
limit closures to the shortest possible time to those
periods of the day least likely to interfere with Tenant's
business.
(3) Close temporarily any of the Common Areas for purposes of
cleaning, maintenance, alterations, improvements or
additions.
(4) Designate other property to become part of the Common
Areas.
(5) Make changes to or reorganize the Common Areas pursuant to
Section 43(g) including, without limitation, changes in the
location of driveways, entrances, exits, vehicular parking
spaces and parking area.
18. TENANT IMPROVEMENTS
a. Subsequent to the Possession Date, Tenant may enter the Premises
to make Tenant Improvements pursuant to plans and designs approved
by Landlord. Landlord acknowledges that it has approved the
designs and plans for the Tenant Improvements which were approved
by Tenant Works and subject to bid on November 18, 1998.
b. Tenant's contractor shall coordinate with all local utilities,
including the off-site security monitoring agency, regarding all
construction, installation and/or hookups. Tenant shall provide
Landlord with copies of all correspondence in connection therewith
and Landlord must approve all arrangements prior to Tenant's
contractor proceeding with installation and/or hookups. Tenant
shall obtain approval of sprinkler shop drawings from Landlord's
insurer, Factory Mutual. Landlord shall, within forty-five (45)
days after receipt of sprinkler shop drawings notify Tenant in
writing of Factory Mutual's approval of the sprinkler shop
drawings or disapproval, together with the specific reasons for
disapproval. Installation of sprinklers by Tenant's contractor
shall not void warranties on shell and core. Tenant, through its
contractor, shall provide temporary construction power as
required. Construction of Tenant Improvements must not
unreasonably disturb or interfere with other tenants in the
Building.
c. Tenant's mechanical system (heating, ventilating, air
conditioning) shall tie into the central EMCS (emergency
management control system) and the type of keys to such system
shall match those specified in the Building plans.
d. No later than December 1, 1998 Tenant shall deliver to Landlord
the name of Tenant's proposed contractor. Tenant shall provide
Landlord with copies of all permits and contractor's insurance
(naming Landlord as an additional insured), site signage prior to
beginning construction, a project construction schedule prior to
- 21 -
22
beginning construction and future updates to it, and biweekly
short interval construction schedules.
e. Landlord shall review the scope of all change orders issued to
Tenant's project, for the purpose of coordination with existing
shell and core construction. Landlord shall, within seven (7) days
after receipt of change orders, notify Tenant in writing of
Landlord's approval of the change orders, or Landlord's
disapproval, together with specific reasons for disapproval.
f. Any review and approval by Landlord does not constitute a waiver
of any claims which may arise as a result of faulty design or
construction.
g. Landlord will provide an improvement allowance of $659,093.40)
("Tenant Improvement Allowance") to Tenant toward the costs of
designing, engineering and constructing the Tenant Improvements.
The Tenant Improvement Allowance shall include, but not be limited
to the costs of installing all telephone and computer related
cabling and equipment, and for the development of a space plan.
Tenant, and not Landlord, shall be responsible for paying all
contractors for the cost of the Tenant Improvements. Upon receipt
of any billing statement from contractors, Tenant shall
immediately forward a copy of such statements to Landlord. Within
fifteen (15) days of receiving a billing statement from Tenant,
Landlord will pay Tenant an amount equal to seventy-seven percent
(77%) of the amount of the statement as part of the Tenant
Improvement Allowance until Landlord's payments in aggregate
equal, but do not exceed, $659,093.40, provided that the costs
reflected on each billing statement are for the costs of Tenant
Improvements. Landlord shall have no obligation, and Tenant shall
hold Landlord harmless, for costs of the Tenant Improvements that
exceed $659,093.40. Tenant shall be responsible for promptly
paying twenty-three percent (23%) of each billing statement until
Landlord has paid a total amount of $659,093.40, and thereafter
Tenant shall be responsible for paying the entire cost of Tenant
Improvements beyond the Tenant Improvement Allowance. If Tenant
fails to promptly pay its proportionate share of a monthly billing
statement, Landlord's shall not be obligated to pay its
proportionate share towards the Tenant Improvement Allowance until
Tenant has paid contractors' its proportionate share of all
delinquent ▇▇▇▇▇▇▇▇. If, upon completion of the construction of
the Tenant Improvements Landlord has not advanced the full
$659,093.40 Tenant Improvement Allowance, Landlord shall reimburse
Tenant for a portion of Tenant's share of the costs of the Tenant
Improvement, until Landlord has advanced the full $659,093.40
Tenant Improvement Allowance.
h. Tenant shall have the right to locate GPS antennas, satellite
dishes and other forms of telecommunication transmission and
reception facilities ("Roof-Top Devices") on the roof of the
Building, as shown on Exhibit E attached hereto and
- 22 -
23
incorporated herein, subject to Landlord's prior approval and
subject to the terms and conditions negotiated between Tenant and
Landlord, including, but not limited to the number and size of
such Roof-Top Devices, Tenant's indemnification of Landlord for
any interference caused by such Roof-Top Devices with other
facilities located on the roof of the Building, and the size and
location of the area on the Building roof-top that Tenant's
Roof-Top Devices may occupy.
Landlord acknowledges the request of Tenant to proceed quickly to
complete the construction of the Tenant Improvements associated
with the Data Center, so that Tenant can install and test the
equipment and systems associated with the Data Center. Landlord
agrees to cooperate in good faith with Tenant in Tenant's efforts
to do so. Tenant shall be responsible for paying Rent for the Data
Center as set forth in Section 1(g).
19. ASSIGNMENT OR SUBLEASE
Tenant shall not assign, mortgage, encumber or otherwise transfer this
Lease or sublet the whole or any part of the Premises without in each
case first obtaining the written consent of Landlord's Executive
Director, which will be within the Executive Director's sole
discretion. Notwithstanding the foregoing, Tenant may sublease portions
of the Premises not being utilized by Tenant with Landlord's prior
written consent, which will not be unreasonably withheld. Landlord may
condition its consent upon an increase in the Rent payable hereunder in
an amount equal to any subrental or other consideration received by
Tenant as a result of the subletting or assignment which is in excess of
the Rent provided in Section 1(g) herein. No 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. In connection with each request for an assignment
or subletting, Tenant shall: (i) submit in writing to Landlord the name
and legal composition of the proposed subtenant or assignee, the nature
of the proposed subtenant's or assignee's business to be carried on the
Premises, the terms and provisions of the proposed sublease or assignment
and such reasonable financial information as Landlord may request
concerning the proposed subtenant or assignee; and (ii) pay the
reasonable cost of processing such assignment or subletting, including
attorneys' fees, upon demand of Landlord. Tenant shall provide Landlord
with copies of all assignments, subleases and assumption instruments.
However, Tenant may upon written notice to Landlord, but without
Landlord's consent, sublet all or any portion of the Premises or assign
the Lease to (a) a subsidiary, parent, affiliate, division or corporation
controlled by or under common control with Tenant; (b) a successor
corporation related to Tenant by merger, consolidation, reorganization or
government action; (c) an entity which acquires all or substantially all
of the assets of Tenant; or (d) upon prior written notice to Landlord, to
a party that acquires Tenant's
- 23 -
24
leasehold interest, provided that Tenant shall remain liable for the
financial performance pursuant to the Lease (collectively "Permitted
Transferee"). Landlord shall be entitled to receive any consideration in
excess of the Rent due under the Lease ("Transfer Premium") with respect
to any Permitted Transfer to any assignment, sublease, mortgage or
encumbrance that Landlord consents to. Tenant shall pay Landlord any
Transfer Premium hereunder within ten (10) days after such consideration
is received by Tenant. Landlord shall also have the right at any time
during the Term to terminate the Lease and recapture the Premises or a
portion of the Premises by giving written notice to Tenant within thirty
(30) days after receiving Tenant's written notice of any Permitted
Transfer.
Any transfer of this Lease by merger, consolidation or liquidation, or
any change in the ownership of, or power to vote, a majority of its
outstanding stock shall constitute an assignment for the purposes of this
Section. Provided, however, if Tenant's stock becomes publicly held and
Tenant provides Landlord with written notice thereof within thirty (30)
days of the date of such transfers, the transfers of such stock from
private to public ownership shall not be deemed an assignment for
purposes of this Section.
Any transfer of this Lease by liquidation or involuntary transfer shall
constitute an assignment for the purpose of this Section.
This Lease or any interest thereunder shall not be assignable or
transferable by operation of law or by any process or proceeding of any
court or otherwise.
20. SIGNS
Tenant shall not place or in any manner display any sign, graphics, or
other advertising matter anywhere in or about the Premises, the Building
or Property at places visible (either directly or indirectly) from
anywhere outside the Premises without first obtaining Landlord's written
consent thereto, such consent will not be unreasonably withheld. 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 approved by Landlord, other than the standard Building
directory or elevator lobby directory signage, is at Tenant's sole
expense. Tenant shall provide Landlord the design and plans for its
signage prior to Possession Date.
- 24 -
25
21. LIENS AND INSOLVENCY
a. Liens
Tenant shall keep its interest in this Lease, the Premises, the
Property and the Building free from any encumbrances or from any
liens arising out of the construction of the Tenant Improvements
(subject to Landlord's payment of the Tenant Improvement
Allowance as provided here), Tenant's use of the Premises, or any
work performed and materials ordered or obligations incurred by
or on behalf of Tenant. Tenant indemnifies and holds Landlord
harmless from any liability from any such lien. In the event any
lien is filed against the Building, the Property or the Premises
by any person claiming by, through or under Tenant, Tenant shall,
upon request of Landlord and at Tenants expense, immediately
cause such lien to be released of record or furnish to Landlord a
bond, in form and amount and issued by a surety reasonably
satisfactory to Landlord, indemnifying Landlord, the Property and
the Building against all liability, costs and expenses, including
attorneys' fees, which Landlord may incur as a result. 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
against Landlord, Tenant and the Premises and neither the
Premises, the Building nor the Property nor any part or interest
of the Building or Property 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, 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.
22. DEFAULTS AND REMEDIES
a. Defaults
Time is of the essence of this Lease. The occurrence of any one
or more of the following events constitutes a default of this
Lease by Tenant with or without notice from the Landlord:
- 25 -
26
(1) The vacating or abandonment of the Premises by Tenant.
(2) The failure by Tenant to make any payment of Rent, or any
other payment required by this Lease, when due.
(3) The failure by Tenant to observe or perform any covenant,
condition, or agreement to be observed or performed by
Tenant in this Lease.
(4) The discovery by the Landlord that any financial or
background statement provided to the Landlord by Tenant,
any successor, grantee, or assign was materially false.
(5) The filing by Tenant of a petition in bankruptcy, Tenant
being adjudged bankrupt or insolvent by any court, a
receiver of the property of Tenant being appointed in any
proceeding brought by or against Tenant, Tenant making an
assignment for the benefit of creditors, or any proceeding
being commenced to foreclose any mortgage or other lien on
Tenant's interest in the Premises or on any personal
property kept or maintained on the Premises by Tenant.
b. Remedies
(1) Whenever any default (other than a default under
subsection 22(a)(5) above, upon which termination of this
Lease shall, at the Landlord's option, be effective
immediately without further notice) continues unremedied
in whole or in part for 30 days after written notice is
provided by the Landlord to Tenant (or for 10 days after
written notice in the case of default for failure to pay
any rent, or other required payment when due), this Lease
and all of Tenant's rights under it will automatically
terminate if the written notice of default so provides.
Landlord shall have a duty to mitigate any damages arising
out of a default of this Lease. Upon termination, the
Landlord may reenter the Premises using such force as may
be necessary and remove all persons and property from the
Premises. The Landlord will be entitled to recover from
Tenant all unpaid Rent or other payments and damages
incurred because of Tenant's default including, but not
limited to, the costs of re-letting, including tenant
improvements, necessary renovations or repairs,
advertising, leasing commissions, and attorney's fees and
costs ("Termination Damages"), together with interest on
all Termination Damages at the rate of 18% per annum, or
the maximum rate permitted by applicable law, whichever is
less, from the date such Termination Damages are incurred
by the Landlord until paid.
- 26 -
27
(2) In addition to Termination Damages, and notwithstanding
termination and reentry, Tenant's liability for all Rent
or other charges which, but for termination of the Lease,
would have become due over the remainder of the Lease term
("Future Charges") will not be extinguished and Tenant
agrees that the Landlord will be entitled, upon
termination for default, to collect as additional damages,
a Rental Deficiency. "Rental Deficiency" means, at the
Landlord's election, either:
(a) An amount equal to Future Charges, less the amount
of actual rent, if any, which the Landlord receives
during the remainder of the Lease term from others
to whom the Premises may be rented, in which case
such Rental Deficiency will be computed and payable
at the Landlord's option either:
((1)) In an accelerated lump-sum payment (reduced
to present worth), or
((2)) in monthly installments, in advance, on the
first day of each calendar month following
termination of the Lease and continuing
until the date on which the Lease term would
have expired but for such termination, and
any suit or action brought to collect any
portion of Rental Deficiency attributable to
any particular month or months, shall not in
any manner prejudice the Landlord's right to
collect any portion of Rental Deficiency by
a similar proceeding; or
(b) An amount equal to Future Charges less the
aggregate fair rental value of the Premises over
the remaining Lease term, reduced to present worth.
In this case, the Rental Deficiency must be paid to
the Landlord in one lump sum, on demand, and will
bear interest at a rate of 18% per annum, or the
maximum rate permitted by applicable law, whichever
is less, until paid. For purposes of this
subsection, "present worth" is computed by applying
a discount rate equal to one percentage point above
the discount rate then in effect at the Federal
Reserve Bank in, or closest to, Seattle,
Washington.
(3) If this Lease is terminated for default as provided in
this Lease, the Landlord shall use reasonable efforts to
re-let the Premises in whole or in part, alone or together
with other premises, for such term or terms (which may be
greater or less than the period which otherwise would have
constituted the balance of the Lease term), for such use
or uses and, otherwise on such terms and conditions as the
Landlord, in its sole
- 27 -
28
discretion, may determine, but the Landlord will not be
liable for, nor will Tenant's obligations under this Lease
be diminished by reason for any failure by the Landlord to
re-let the Premises or any failures by the Landlord to
collect any rent due upon such re-letting.
(4) If upon any reentry permitted under this Lease, there
remains any personal property upon the Premises, the
Landlord, in its sole discretion, may remove and store the
personal property for the account and at the expense of
Tenant. In the event the Landlord chooses to remove and
store such property, it shall take reasonable steps to
notify Tenant of the Landlord's action. All risks
associated with removal and storage shall be Tenant's
responsibility. Tenant shall reimburse the Landlord for
all expenses incurred in connection with removal and
storage as a condition to regaining possession of the
personal property. The Landlord has the right to sell any
property which has been stored for a period of 30 days or
more, unless Tenant has tendered reimbursement to the
Landlord for all expenses incurred in removal and storage.
The proceeds of sale will be applied first to the costs of
sale (including reasonable attorneys' fees), second to the
payment of storage charges, and third to the payment of
any other amounts which may then be due and owing from
Tenant to the Landlord. The balance of sale proceeds, if
any, will then be paid to Tenant.
(5) The Landlord's action pursuant to this remedies section
shall not be construed to limit the Landlord in the
exercise of any other additional right or remedy which may
be available to the Landlord, at law or in equity, by
reason of Tenant's default.
23. PRIORITY
a. Tenant agrees that this Lease shall be subordinate to any first
mortgage or deed of trust now existing or 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"). Upon demand by Landlord or the
holder of any Landlord's Mortgage ("Holder"), Tenant shall
execute and deliver subordination and attornment agreements in
form and substance satisfactory to such Holder. 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;
- 28 -
29
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. Notwithstanding anything contained herein to the
contrary, Tenant's subordination and attornment under this
Article shall be conditional upon such transferee, purchaser,
landlord, mortgagee, or beneficiary executing and providing
Tenant with a nondisturbance agreement preserving Tenant's rights
and leasehold interest under the Lease.
b. Upon Holders' request Tenant shall attorn to the Holder of any
Landlord's Mortgage or any person or persons purchasing or
otherwise acquiring the Property, Building or Premises at any
sale or other proceeding under any Landlord's Mortgage. Tenant
shall properly execute, acknowledge and deliver instruments which
the Holder of any Landlord's Mortgage may reasonably require to
effectuate the provisions of this Section.
24. SURRENDER OF POSSESSION
Subject to the terms of Section 13 relating to damage and destruction
and Section 25 relating to removal of Property, 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 pursuant to Section 11, above),
reasonable use and wear and tear excepted. Tenant shall not be obligated
to remove any Tenant Improvements, except as set forth in Section 25 of
this Lease.
25. REMOVAL OF PROPERTY
Tenant shall remove all of its movable personal property 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. Landlord may elect, in its sole discretion,
to also require Tenant to remove all of its telephone, data and computer
cabling. All other improvements and additions to the Premises shall
become the property of Landlord upon termination of this Lease.
- 29 -
30
26. NON-WAIVER
Waiver by Landlord or Tenant of any term, covenant or condition of this
Lease or any breach thereof will not be deemed to be a waiver of such
term, covenant, or condition or of any subsequent breach of the same or
any other term, covenant, or condition herein contained. The subsequent
acceptance of any payment 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.
27. HOLDING OVER
If Tenant shall 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 the greater of (a) the then
quoted rates for similar space in the Building or (b) one hundred
twenty-five percent (125%) 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 27 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
charged rent in an amount equal to 200% of the Rent for the prior
expired term, and 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.
28. 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.
Any Rent, Additional Rent and other payments paid past the date
title vests in the condemning authority shall be reimbursed to
Tenant.
- 30 -
31
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 shall reasonably determine that
the remaining portions of the Premises cannot be economically and
effectively used by it (whether on account of physical, economic,
aesthetic or other reasons), or if, in the opinion of Landlord,
the Building should be restored in such a way as to alter the
Premises materially, Landlord shall forward a written notice to
Tenant 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 Landlord 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 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 Tenants 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.
- 31 -
32
29. NOTICES
All notices under this Lease shall be in writing and 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(l) (provided that
after the Commencement Date any such notice may be mailed or delivered by
hand to Tenant at the Premises) 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 date of such mailing.
30. 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.
31. 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's representatives and agents personally,
but are made and intended for the purpose of binding only the Landlord
and the Landlord's interest in the Premises and Building, 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 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.
32. 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 the current 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
- 32 -
33
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; that the security deposit is as stated in the Lease;
and such other matters as Landlord may reasonably request. It is
intended that any such statement delivered pursuant to this Section 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) 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.
Upon written request from Tenant, which shall not be submitted more than
twice a year, Landlord shall execute, acknowledge and deliver to Tenant
or its designee a written statement confirming the material terms of the
Lease and indicating whether Tenant is in default under the Lease.
Landlord should respond to Tenant's written request herein within thirty
(30) days after the receipt of the request.
33. 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 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. In the
event of any transfer, Landlord shall transfer the Security Deposit to
the transferee.
34. 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 Tenants 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)
- 33 -
34
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.
35. 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.
36. NONDISCRIMINATION - SERVICES
a. Tenant agrees that it will not discriminate by segregation or
otherwise against any person or persons because of race, sex,
age, creed, color or national origin in furnishing, or by
refusing to furnish, to such person, or persons, the use of the
facility herein provided, including any and all services,
privileges, accommodations, and activities provided thereby.
b. It is agreed that Tenant's noncompliance with the provisions of
this clause shall constitute a material breach of this Lease. In
the event of such noncompliance, Landlord may take appropriate
action to enforce compliance, may terminate this Lease, or may
pursue such other remedies as may be provided by law.
37. NONDISCRIMINATION - EMPLOYMENT
Tenant covenants and agrees that in all matters pertaining to the
performance of this Lease, Tenant shall at all times conduct its
business in a manner which assures fair, equal and nondiscriminatory
treatment of all persons without respect to race, sex, age, color, creed
or national origin and, in particular:
a. Tenant will maintain open hiring and employment practices and
will welcome applications for employment in all positions from
qualified individuals who are members of racial or other
minorities, and
b. Tenant will comply strictly with all requirements of applicable
federal, state and local laws or regulations issued pursuant
thereto relating to the establishment of nondiscriminatory
requirements in hiring and employment practices and assuring the
service of all patrons or customers without discrimination as to
any person's race, sex, age, creed, color or national origin.
38. COMPLIANCE WITH ALL REGULATIONS AND LAWS
Tenant agrees to comply with all reasonable and applicable rules and
regulations of the Landlord pertaining to the Building, Property or
other realty of which the Premises are a part now in existence or
hereafter promulgated for the general safety and convenience of
- 34 -
35
the Landlord, its various tenants, invitees, licensees and the general
public. Tenant further agrees to comply with all applicable federal,
state, and municipal laws, ordinances, and regulations, including
without limitation those relating to environmental matters. Any fees for
any inspection of the Premises during or for the Lease Term by a
federal, state or municipal officer and the fees for any so-called
"Certificate of Occupancy" for the Tenant Improvements shall be paid by
Tenant.
39. "TENANT" INCLUDES TENANTS, ETC.
It is understood and agreed that for convenience the word "Tenant" and
verbs and pronouns in the singular number and neuter gender are
uniformly used throughout this Lease, regardless of the number, gender
or fact of incorporation of the party who is, or of the parties who are,
the actual Tenant or Tenants under this Lease.
40. AUTHORITY
If Tenant is a corporation, limited liability company, limited liability
partnership or limited or general partnership, each individual executing
this Lease on behalf of Tenant represents and warrants that he or she 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.
41. HAZARDOUS MATERIALS
a. Tenant shall not dispose of or otherwise allow the release of any
hazardous waste or materials in, on or under the Premises, the
Building or Property, 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
and Building does not involve the use, production, disposal or
bringing on to the Premises and into Building of any hazardous
waste or materials. 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. Tenant's generator and three HVAC Condenser Units in
the garage of the Building shall be subject to the requirements
of this Section.
- 35 -
36
b. Tenant agrees to indemnify and hold harmless Landlord against any
and all 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 Lease, or (ii) the acts or
omissions 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.
c. Landlord represents and warrants that to the best of its
knowledge, Landlord has not used, generated, manufactured,
produced, stored, released, discharged or disposed of on, under
or about the Premises (or off-site of the Premises on the
Property that might affect the Premises) or transferred to or
from the Premises, any hazardous waste or materials or allowed
any other person or entity to do so. Landlord agrees to
indemnify and hold harmless Tenant, its directors, officers,
contractors, employees and agents from and against any and all
loss, damage, cost, expense or liability (including attorneys'
fees and costs) directly or indirectly attributable to Landlord's
or its agents', contractors', servants' or employees' use,
generation, manufacture, production, storage, release, discharge,
disposal or the presence (through the act or omissions of
Landlord) of any hazardous waste or materials on, under or about
the Premises. Notwithstanding the foregoing, Landlord shall not
be liable to Tenant, its directors, officers, contractors,
employees and agents for any and all loss, damage, cost, expense
(including attorneys' fees and costs) directly or indirectly
attributable to any storage, release, discharge or disposal of
any hazardous waste or materials from any railroad train,
equipment or other operation on the railroad tracks located
between the Building and the World Trade Center East Building.
42. TELECOMMUNICATIONS LINES AND EQUIPMENT
a. Location of Tenant's Equipment and Landlord Consent
(1) 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, which consent may be withheld In Landlord's sole
and absolute discretion. Tenant shall locate all
electronic telecommunications equipment within the
Premises and shall relocate all Tenant's equipment which
is located within the Building telephone closets or riser
spaces, at Tenant's cost, to the Tenant's Premises. Any
request for Landlord's consent shall contain detailed
plans, drawings and specifications
- 36 -
37
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 approval). Landlord
shall have a reasonable period of time in which to
evaluate the request after it is submitted by Tenant.
(2) 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. Landlord disclaims all responsibility for
the condition or utility of the intra-building network
cabling ("INC") and makes no representation regarding the
suitability of the INC for Tenant's intended use.
(3) 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; and (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 federal, state and local laws and
regulations; and (IV) as soon as the work in completed,
Tenant shall submit "as-built" drawings to Landlord.
(4) 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 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
three (3) days after written notice.
(5) Notwithstanding anything in the above sections, Tenant
shall remove any Lines located in or serving the Premises
promptly upon expiration or sooner termination of this
Lease.
(6) Notwithstanding anything in this Section 42 to the
contrary, Lines shall not include basic telephone wiring
and cabling.
- 37 -
38
b. Landlord's Rights
Landlord may (but shall not have the obligation to):
(1) install new Lines at the Building;
(2) create additional space for Lines at the Building; and
(3) 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 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
and omissions 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 federal, state or local laws and regulations or
demands of governmental authorities, or any reasonable policies
or requirement of Landlord, 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
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
- 38 -
39
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; (ii) any failure of
any Lines to satisfy Tenant's requirements; or (iii) 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 damage
arising 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 therefore
(including riser cables) to prevent such excessive
electromagnetic fields or radiation.
f. Data Center Lines
Notwithstanding the foregoing provisions of this Lease, Landlord
acknowledges that Landlord has approved and Tenant may install,
as part of the Tenant Improvements, all Lines depicted on the
plans for the Tenant Improvements approved by Landlord, including
Lines which connect the emergency generator located in the garage
of the Building to the Premises, and Lines between the Data
Center and the remainder of the Premises on the Second Floor of
the Building. The nature and location of Lines to connect the
Premises with any Roof-Top Devices will be reviewed and be
subject to Landlord's approval when Tenant proposes the
installation of the Roof-Top Devices.
43. 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.
- 39 -
40
c. Brokers
Tenant represents and warrants that it was represented by ▇▇▇▇▇▇▇
Wakefield, Inc. ("Tenant's Broker") in connection with the
negotiation and/or execution of this Lease, and in the
identification of the Premises. Landlord shall pay Tenant's
Broker a commission based on $3.50 per rentable square foot of
the Premises for a total amount of $78,421.00. Landlord shall pay
Tenant's Broker $39,210.50 on the date that the Lease is fully
executed and $39,210.50 on the Rent Commencement Date. If Tenant
has dealt with any other person or real estate broker 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. Landlord
has engaged Washington Partners, Inc., who has represented
Landlord in this Lease. Landlord shall be solely responsible for
the payment of any fee due to Washington Partners, Inc. in
connection with the negotiation and/or execution of this Lease.
If Landlord has dealt with any other person or real estate broker
with respect to leasing or renting the Premises, Landlord shall
be solely responsible for the payment of any fee due said person
or firm and Landlord shall indemnify and hold Tenant harmless
against any liability in respect thereto, including Tenant'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. 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
- 40 -
41
Landlord's performance is prevented due to circumstances beyond
Tenant's or Landlord's reasonable control.
g. Right to Change Public Spaces
Landlord shall have the right at any time, without thereby
creating an actual or constructive eviction or incurring any
liability to Tenant therefor, to change such of the following
Common Areas which 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 the arrangement or location of the
elevators serving the Premises, make any change which shall
diminish the area of the Premises, or make any change to the
character of the Building from that of a first-class office
building.
h. Governing Law
This Lease shall be governed by and construed in accordance with
the laws of the State of Washington.
i. 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.
j. Building Name
The Building shall be known by such name as Landlord may
designate from time to time.
k. Memorandum of Lease
This Lease shall not be recorded and if the Lease is recorded,
this Lease will automatically terminate. A Memorandum of Lease to
provide constructive notice of the Lease may be recorded with
real property records of King County, Washington upon the
signature and written approval of Landlord, in the form attached
hereto and incorporated herein as Exhibit F.
44. ENTIRE AGREEMENT - AMENDMENTS
This Lease together with any and all exhibits expressed incorporated
herein by reference and attached hereto shall constitute the whole Lease
between the parties. There are no
- 41 -
42
terms, obligations, covenants or conditions other than those contained
herein. No modification or amendment of this Lease shall be valid or
effective unless evidenced by a lease in writing signed by both parties.
IN WITNESS WHEREOF this Lease has been executed the day and year first
above set forth.
TENANT:
XYPOINT CORPORATION
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------
Its: President
-----------------------
LANDLORD:
PORT OF SEATTLE
By /s/ ▇.▇. ▇▇▇▇▇▇▇▇
------------------------------
Name: ▇.▇. ▇▇▇▇▇▇▇▇
----------------------
Its: Executive Director
-----------------------
- 42 -