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AMENDED AND RESTATED LEASE
BY AND BETWEEN
KAMBER PARK ASSOCIATES, LANDLORD
AND
OPTIVA CORPORATION, TENANT
THIS AMENDED AND RESTATED LEASE (herein called the "Lease"), dated the 19 day of
May, 1995, is made by and between KAMBER PARK ASSOCIATES (herein called
"Landlord") and OPTIVA CORPORATION (herein called "Tenant"), and, effective as
of the date hereof, amends and restates that certain Lease dated February 17,
1995 by and between Landlord and Tenant.
For and in consideration of the mutual covenants and undertakings hereinafter
set forth, the parties hereto agree as follows:
1. PREMISES
(a) Current Premises. Landlord leases to Tenant and Tenant leases from
Landlord Suites K and L, consisting of approximately 11,032 sq. ft., as shown on
the site plan attached hereto as Exhibit "A" (hereinafter referred to as the
"Premises"), in KAMBER PARK which is located at ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇ and is legally described in Exhibit "B" attached hereto and
incorporated herein by this reference (the "Project"). In addition, Suite D of
the Project, consisting of approximately 13,892 square feet, shall be added to
this Lease effective as of the date the Landlord's lease with Mechatronics is
terminated.
(b) Expansion Space. So long as Tenant is not then in default under
the terms of this Lease, Tenant and Landlord agree to the following with respect
to the other Suites in the Project:
(1) Suite M. Landlord has reached an agreement with Gymnastics
East ("GE") to relocate GE from Suite M to Suite C in the Project. Tenant shall
reimburse Landlord, as additional rent, for the difference between the monthly
rental rate to be paid by GE for Suite C and the fair rental value of Suite C,
to a maximum of One Thousand Dollars ($1,000.00) per month. Landlord shall,
within seven (7) days after the earlier to occur of (i) the date an agreement
was reached with GE or (ii) May 15, 1995, provide the required termination
notice to U.S. West to vacate Suite C on or before 90 days from the date of
Landlord's notice to U.S. West. Tenant shall occupy Suite M immediately upon its
availability.
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The agreement with GE shall require GE to relocate to Suite C
within thirty (30) days of vacation by U.S. West. The agreement with GE shall
also provide that, once GE has occupied Suite C, Landlord will use good faith
efforts to find alternative space suitable to GE outside of the Project. If such
alternative space can be found, then the Landlord shall allow for early
termination of GE's lease of Suite C so long as Tenant agrees to lease Suite C
at the rental rates then in effect for Suite M, with a commencement date
effective as of the date GE vacates Suite C.
(2) Suites C and N. In the event an agreement with Gymnastics
East, Inc. cannot be reached by May 15, 1995, despite Landlord's reasonable best
efforts, then Tenant agrees to lease Suite C commencing upon its availability
for occupancy by Tenant. Landlord agrees to lease to Tenant, and Tenant agrees
to lease from Landlord, Suite N commencing November 1, 1995, at the rental rate
then in effect for Suite N.
(3) Other Suites: First Option to Lease. In addition to the
Expansion Space described in Subparagraphs 1(b)(1) and 1(b)(2) above, the Tenant
shall have a first option to lease Suites A, B-1, B-2, E, F and M (if Suite M
has not been already been leased by Tenant under Subparagraph 1(b)(1) above) in
the Project upon the earlier to occur of any of the following (individually
called a "Triggering Event"):
(i) Landlord receives notice that a tenant of any of the
above Suites intends to vacate that Suite or not
renew its lease;
(ii) A tenant of any of the above Suites fails to timely
exercise its right to extend or renew the term of its
lease;
(iii) A tenant, who has no right to extend or renew under
its lease, requests an extension or renewal of its
lease;
(iv) A tenant has defaulted on its lease with respect to
any of the above Suites, and has no defenses or right
to cure, or does not thereafter file a petition for
protection under the U.S. bankruptcy laws; or
(v) Any other circumstance resulting in any of the above
Suites becoming available prior to the expiration of
an existing lease term.
Upon learning of the occurrence of a Triggering Event, the Landlord shall
promptly notify the Tenant in writing of such occurrence, specifying the type of
Triggering Event, the date of the occurrence, the date that Landlord anticipates
the applicable Suite to become available for occupancy, and any other
information that Landlord deems relevant. Tenant shall have thirty (30) days
following receipt of Landlord's notice within which to notify Landlord in
writing that Tenant elects to exercise its option to lease the applicable
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Suite commencing on the date Landlord projects the Suite will be available for
occupancy. If Tenant fails to so notify Landlord within the thirty (30) day
period, Tenant shall be deemed to have elected NOT to have exercised its option,
and Landlord may lease the Suite to another party. With respect to Triggering
Event (iii) only, Landlord shall not respond to the tenant's request for an
extension or renewal until Tenant has elected not to exercise its option with
respect to that Suite, either affirmatively or by failing to respond in a timely
manner.
(c) Once Tenant has exercised its option with respect to a particular
Suite and it is available for occupancy by Tenant, said Suite shall be deemed
included in the definition of "Premises" under this Lease, and shall be subject
to all of the terms and conditions hereof.
(d) Landlord shall not agree to extend any lease, or modify any lease
to allow an extension, without Tenant's prior written consent, which consent
shall not be unreasonably withheld or delayed, unless such lease currently
allows the tenant under it to extend.
(e) The table below is a description of all of the Suites of the
Project, and the approximate square footage and type of space in each Suite.
This table shall be used in calculating the rent payable for each Suite,
regardless of the actual square footage of the Suite, except, however, for the
Suites constituting the Expansion Space described in Paragraph 1(b)(3) herein,
Tenant shall have thirty (30) days from the date of initial occupancy to notify
Landlord of any variation is square footage from the numbers shown on the table
and, subject to Landlord's verification of Tenant's numbers, the rent shall then
be based on the actual square footage and determined in accordance with Section
34 herein.
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SUITE SQ. FEET OFFICE WAREHOUSE
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A 18,203 4,866 13,337
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B1 1,310 1,100 210
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B2 1,240 1,240 0
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C 8,620 2,190 6,430
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D 13,892 1,910 11,982
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E 7,705 1,125 6,580
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F 1,584 0 1,584
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K&L 11,032 6,046 4,986
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M 6,940 940 6,000
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N 7,872 1,390 6,482
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M (▇▇▇▇ Group) 675 675 0
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2. USE
Tenant shall use the Premises exclusively for general office and
warehouse purposes, in addition to a research and development lab in Suite L,
and shall not use or permit the Premises to be used for any other purpose
without the prior written consent of Landlord, which consent shall not be
unreasonably withheld. Landlord represents that the Project is currently zoned
L1 as is Tenant's current facility and to the best of Landlord's knowledge, the
Tenant's proposed use is permitted by the current zoning. Tenant is responsible
for confirming that its intended use of the Premises is allowable under this
current zoning.
3. MINIMUM RENT
Tenant agrees to pay to Landlord as Minimum Rent the monthly sums set
forth below, in advance, without notice, on or before the first day of each and
every successive calendar month during the term hereof, except the first month's
rent shall be paid upon the execution hereof. Rent for any period which is for
less than one (1) month shall be a prorated portion of the monthly installment
herein based upon a thirty (30) day month. Said rental shall be paid to
Landlord, without deduction or offset, in lawful money of the United States of
America and at such place as Landlord may from time to time designate in
writing.
(a) Current Premises. For the Current Premises described in Paragraph
1(a) above, the monthly rent is as follows:
Commencement Date through July 31, 1995 (including Suite D): $16,040.68/mo.
August 1, 1995 through July 31, 1996 (including Suite D): $16,179.60/mo.
August 1, 1996 through July 31, 1997 (including Suite D): $16,318.52/mo
August 1, 1997 through July 31, 1998 (including Suite D): $1.03/sq. ft./mo. for office
$ .515/sq. ft./mo. for warehouse
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August 1, 1998 through July 31, 1999 (including Suite D): $1.06/sq. ft./mo. for office
$ .53/sq. ft./mo. for warehouse
August 1, 1999 through April 30, 2000 (including Suite D): $1.09/sq. ft./mo. for office
$ .545/sq. ft./mo. for warehouse
(b) Paragraphs 1(b)(1) and 1(b)(2) Expansion Space. For the
Expansion Space described in Paragraphs 1(b)(1) and 1(b)(2) above, the monthly
rent is as follows:
Commencement Date through October 31, 1996 $1.00/sq. ft./mo. for office
$ .50/sq. ft./mo. for warehouse
November 1, 1996 through October 31, 1997 $1.03/sq. ft./mo. for office
$ .515/sq. ft./mo. for warehouse
November 1, 1997 through October 31, 1998 $1.06/sq. ft./mo. for office
$ .53/sq. ft./mo. for warehouse
November 1, 1998 through October 31, 1999 $1.09/sq. ft./mo. for office
$ .545/sq. ft./mo. for warehouse
November 1, 1999 through April 30, 2000 $1.12/sq. ft./mo. for office
$ .56/sq. ft./mo. for warehouse
(c) Paragraph 1(b)(3) Expansion Space. For the Expansion Space
described in Paragraph 1(b)(3) above, Tenant agrees to pay to Landlord the fair
market rent of the applicable Suite at the time said Suite is made available for
Tenant's occupancy. The rental shall commence as of the date said Suite is made
available for Tenant's occupancy.
(d) Rent Table. A table showing the monthly rent for each Suite, based
on the square footage of each Suite, is attached hereto as Exhibit "D" and
incorporated herein by this reference.
4. TERM
4.1 The lease term shall be that period specified below. The parties
hereto acknowledge that certain obligations under various articles hereof may
commence prior to the lease term (i.e., construction, hold harmless, liability
insurance, etc.) and the parties agree to be bound by these articles prior to
commencement of the lease term.
(a) Current Premises: March 1, 1995 through April 30, 2000.
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(b) Paragraphs 1(b)(1) and 1(b)(2) Expansion Space: Commencing on the
date the applicable Suite Is made available for occupancy by Tenant through
April 30, 2000.
(c) Paragraph 1(b)(3) Expansion Space: Commencing on the date the
applicable Suite is made available for occupancy by Tenant for a minimum term of
two (2) years (or longer upon mutual agreement).
4.2 Early Termination. Tenant shall have the option to terminate this
Lease upon at least nine (9) months' prior notice, which notice may be given at
any time after August 1, 1997. To be effective, the notice must be in writing,
specify the date of termination, and enclose $10,000 of the early termination
fee described in the schedule set forth below, with the balance of the fee to be
paid three (3) months before the early termination date:
Termination Date Between: Fee:
May 1, 1998 and October 31, 1998: 6 months' rent
November 1, 1998 and April 30, 1999: 5 months' rent
May 1, 1999 and October 31, 1999: 2 months' rent
November 1, 1999 and April 30, 2000: none
Provided, however, with respect to any of the Expansion Space leased by Tenant
in accordance with Paragraph 1(b)(3) above, Tenant agrees: (i) not to terminate
this Lease so that the term expires during the months of October, November,
December and January; and (ii) not to terminate this Lease as to more than
one-third of such Expansion Space leased at the end of the required term and a
maximum of an additional one-third of such Expansion Space released at the end
of successive three (3) month periods, such that the total space will be
released to Landlord over six (6) months. Landlord and Tenant agree that should
the termination date occur on or after May 1, 1999, then the early termination
fee with respect to such Expansion Space shall be reduced by the base rental
payments made during the staged termination described in the preceding clause
4.2(ii).
5. SECURITY DEPOSIT
[INTENTIONALLY OMITTED]
6. ADDITIONAL CHARGES
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(a) Adjustments
(1) It is the intent of the Landlord and Tenant that the Lease be
"triple net". Accordingly, in addition to the Minimum Rent provided in Paragraph
3, and commencing at the same time as the minimum rental commences hereunder,
Tenant shall pay to Landlord the following items, hereinafter referred to as
"Additional Rent". Tenant shall either pay the expenses hereinafter set forth
directly, if they are separately metered or otherwise directly identified with
and charged to the Premises, or shall pay to Landlord Tenant's allocable share
of such expenses not specifically identified to the Premises. Tenant's allocable
share of expenses not specifically identified to the Premises shall be
determined as that percent of the total cost of the following items (which are
not specifically identified to the Premises) as Tenant's total floor area bears
to the total rentable floor area of the project determined as of the first day
of each calendar quarter; provided, however, that if any tenant in the project
pays any of the following items directly, such tenant's square footage shall not
be deemed a part of the total rentable floor area of the project for purposes of
determining Tenant's allocable share of such item.
(a) All real estate taxes and insurance premiums on the
Premises during the lease term, including land, building, and improvements
thereon. Said real estate taxes shall include all real estate taxes and
assessments that are levied upon and/or assessed against the Premises, including
any taxes which may be levied on rent. Said insurance shall include all
insurance premiums for fire, extended coverage, liability and any other
insurance that Landlord deems necessary on the Premises.
(b) All costs to maintain, repair, and replace common areas
and other areas used in common by the tenants of the project.
(c) All costs to supervise and administer said common areas,
sidewalks, and other areas used in common by the tenants or occupants of the
Project. Such costs shall include such fees as may be paid to a third party in
connection with same and shall in any event include a fee to Landlord to
supervise and administer the common areas. This shall also include property
management costs ordinary to the course of collection of rents, payments of
expenses, related accounting duties, and administration of all maintenance
contracts and services provided to the project.
(d) Any parking charges, utilities surcharges, or any other
costs levied, assessed, or imposed by any governmental authority in connection
with the use or occupancy of the Premises of the parking facilities serving the
Premises.
(2) Upon commencement of rental Landlord shall submit to tenant a
budget of the anticipated monthly additional rent for the period between such
commencement and the following December 31, and Tenant shall pay these
adjustments on a monthly basis concurrently with the payment of the Minimum
Rent. Tenant shall
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continue to make said monthly payments until notified by Landlord of a change
thereof. By March 31 of each year, Landlord shall endeavor to give Tenant a
statement showing the total costs which constitute additional rental items for
the Project for the prior calendar year. If the amount paid by the Tenant during
the previous year turns out to be less than the Tenant's actual share of such
additional rent items, then Tenant shall pay the difference in a lump sum within
twenty (20) days after receipt of such statement of the Landlord. Any
overpayment by Tenant shall immediately be credited towards the monthly
additional rent next coming due. Even though the term has expired and Tenant has
vacated the Premises, when the final determination is made of Tenant's share of
additional rent for the year in which this lease terminates, Tenant shall
immediately pay any increase due over the estimated adjustments previously paid
and, conversely, any overpayment made shall be immediately repaid by Landlord to
Tenant. Failure of Landlord to submit written statements as called for herein
shall not be deemed to be a waiver of Tenant's obligations to pay sums as herein
provided.
7. RISK TO PROPERTY
(a) Permitted Use--See Section 2 above.
(b) Not Permitted
Tenant shall not do or permit anything to be done in or about the
Premises nor bring or keep anything therein which is not within the permitted
use of the Premises which will in any way increase the existing rate of or
affect any fire or other insurance upon the Project or any of its contents, or
cause a cancellation of any insurance upon the Project or any of its contents,
or cause a cancellation of any insurance policy covering said building or any
part thereof or any of its contents. If Tenants activities do have increased
insurance costs, Tenant may engage in such activities provided such activities
are lawful, and tenant shall pay for the increased premiums. Tenant shall not do
or permit anything to be done in or about the Premises which will in any way
obstruct or interfere with the rights of other tenants or occupants of the
building or cause injury or use or allow the Premises to be used for any
improper, immoral, unlawful, or objectionable purpose; nor shall Tenant cause,
maintain, or permit any nuisance in, on or about the Premises. Tenant shall not
commit or allow to be committed any waste in or upon the Premises.
8. COMPLIANCE WITH LAW
Tenant shall, at its sole cost and expense, promptly comply with all
laws, statutes, ordinances, and governmental rules, regulations or requirements
now in force or which may hereafter be in formed and with the requirements of
any board of fire underwriters or other similar bodies now or hereafter
constituted relating to or affecting the condition, use, or occupancy of the
premises, excluding structural changes materially or
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substantially related to or affected by Tenant's improvements or acts. The
judgment of any court of competent jurisdiction or the admission of Tenant in
any action against Tenant, whether Landlord be a party thereto or not, that
Tenant has violated any law, suite, ordinance or governmental rule, regulation,
or requirement shall be conclusive of the fact as between the Landlord and
Tenant.
9. ALTERATIONS AND ADDITIONS
Tenant shall not make or allow to be made any alterations, additions,
or improvements to or of the Premises or any part thereof without first
obtaining the written consent of Landlord and any alterations, additions, or
improvements to or of said Premises including, but not limited to, wall
covering, paneling, and built-in cabinet work, but excepting movable furniture
and trade fixtures, shall at once become a part of the realty and belong to the
Landlord and shall be surrendered with the Premises. In the event Landlord
consents to the making of any alterations, additions, or improvements to the
Premises by Tenant, the same shall be made by Tenant at Tenant's sole cost and
expense. Upon the expiration or sooner termination of the term hereof, Tenant
shall upon written demand by Landlord, given at least thirty (30) days prior to
the end of the term, at Tenant's sole cost and expense, forthwith and with all
due diligence, remove any alterations, additions, or improvements made by
Tenant, designated by Landlord to be removed, and Tenant shall, forthwith and
with all due diligence, at its sole cost and expense, repair any damage to the
premises caused by such removal. Landlord agrees to reasonably cooperate with
Tenant's efforts to obtain the necessary permits, at Tenant's sole cost and
expense, to construct a footbridge across the creek at the south end of the
Project. Landlord grants Tenant permission to connect a data and telephone cable
to the building at Tenant's sole expense.
10. REPAIRS
(a) Upon commencement of possession hereunder, Tenant shall be deemed
to have accepted the Premises as being in good, sanitary order, condition, and
repair in an "as-is" condition; provided, however, that, with respect to
Expansion Space, Tenant shall not be liable for damage caused by a previous
occupant of said Space and the Space shall be delivered in broom clean
condition. Tenant shall, at Tenant's sole cost and expense, keep the Premises
and every part thereof in good condition and (except as hereinafter provided
with respect to Landlord's obligations) including, without limitation, the
maintenance, replacement, and repair of any storefront, doors, window casements,
glazing, interior plumbing, pipes, electrical wiring and conduits,
air-conditioning system, if any, and heating system. Tenant shall, upon the
expiration or sooner termination of this lease hereof, surrender the Premises to
the Landlord in good condition, broom clean, ordinary wear and tear and damage
from causes beyond the reasonable control of tenant excepted. Any damage to
adjacent premises caused by Tenant's use of the Premises shall be repaired at
the sole cost and expense of Tenant. If any of the above items shall fail as
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a result of defective workmanship or equipment, Landlord shall be responsible
for the repair of said items. Landlord shall obtain a service contract for the
maintenance of the HVAC equipment servicing Tenant's Premises, the cost of said
contract shall be paid by the Tenant as provided under Paragraph 6, Additional
Charges, of the Lease.
(b) Notwithstanding the provisions of Paragraph 10 (a), Landlord shall
repair and maintain the structural portions of the building in which the
Premises are situated, consisting of the foundation, exterior walls and roof,
unless such maintenance and repairs are required in part or in whole by the act,
neglect, fault, or omission of any duty by the Tenant, its agents, servants,
employees, invitees, or any damage caused by breaking and entering, in which
case Tenant shall pay to Landlord the actual cost of such maintenance and
repairs. Landlord shall not be liable for any failure to make such repairs or to
perform any maintenance unless such failure shall persist for an unreasonable
time but in no event later than thirty (30) days after written notice of the
need of such repairs or maintenance is given to Landlord by Tenant.
Notwithstanding the foregoing, in the event of a roof leak that impairs Tenant's
business, if Landlord does not commence repairs within three (3) days of Tenant
issuing notice, Tenant may, at its option, have repairs made sufficient to stop
the leak and deduct the cost of repairs from its rent, with the deduction not to
exceed 50% of the rent due in any succeeding month. Except as provided in herein
there shall be no abatement of rent and no liability of Landlord by reason of
any injury to or interference with Tenant's business arising from the making of
any repairs, alterations, or improvements in or to any portion of the building
or the Premises or in or to fixtures, appurtenances and equipment therein unless
due to Landlord negligence.
11. LIENS
Tenant shall keep the Premises and any building of which the Premises
are a part free from any liens arising out of work performed, materials
furnished or obligations incurred by Tenant and shall indemnify, hold harmless
and defend Landlord from any liens and encumbrances arising out of any work
performed or materials furnished by or at the direction of Tenant.
Landlord shall have the right at all times to post and keep posted on
the Premises any notices permitted or required by law, or which Landlord shall
deem proper, for the protection of Landlord and the Premises, and any other
party having and interest therein, from mechanics' and materialmen's liens and
Tenants shall give to Landlord at least ten (10) business days prior written
notice of the expected date of commencement of any work relating to alterations
or additions to the Premises. With respect to the Current Premises only,
Landlord shall waive the requirement for Tenant to give Landlord ten (10)
business days prior notice of its expected date of commencement of any work
relating to alterations or additions to the Current Premises for Tenant's
initial tenant improvements. This waiver shall not affect the ten (10) business
days' notice and approval requirements
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set forth above for any alterations or additions to any Expansion Space
described in this Lease.
12. ASSIGNMENT AND SUBLETTING
Tenant shall not either voluntarily, or by operation of law, assign,
transfer, mortgage, pledge, hypothecate, or encumber this Lease or any interest
thereof, or any right or privilege appurtenant thereto, or allow any other
person (the employees, agents, servants, and invites of Tenant excepted) to
occupy or use the said Premises, or any portion thereof, without first obtaining
the written consent of Landlord, which consent shall not be unreasonably
withheld. A consent to one assignment, subletting, occupation, or use by any
other person shall not be deemed to be a consent to any subsequent assignment,
subletting, occupation, or use by another person. Consent to any such assignment
or subletting shall in no way relieve Tenant of any liability under this Lease.
Any such assignment or subletting without such consent shall be void and shall,
at the option of the Landlord, constitute a default under the terms hereunder,
Tenant shall pay Landlord reasonable fees, not to exceed Five hundred and no/100
Dollars ($500.00) incurred in connection with the processing of documents for
the giving of such consent.
13. HOLD HARMLESS
Tenant shall indemnify and hold harmless Landlord against and from any
and all claims arising from Tenant's use of the premises or from the conduct of
its business or from any activity, work, or other things done, permitted, or
suffered by the Tenant in our about the Premises, and shall further indemnify
and hold harmless Landlord against and from any and all claims arising from any
breach or default in the performance of any obligation on Tenant's part to be
performed under the terms of this lease or arising from any act or negligence of
the Tenant or any officer, agent, employee, guest, or invites of Tenant, and
from all costs, attorney's fees, and liabilities incurred to defend against any
such claim or any action or proceeding brought thereon; and if any action or
proceeding shall be threatened or brought against landlord by reason of such
claim Tenant upon notice from Landlord shall defend the same at Tenant's expense
by Tenants legal counsel reasonably satisfactory to Landlord. Tenant, as a
material part of the consideration to Landlord, hereby assumes all risk of
damage to property or injury to persons in, upon, or about the Premises, from
any cause other than Landlord's negligence; and Tenant hereby waives all claims
in respect thereof against Landlord. Tenant shall give prompt notice to Landlord
in case of casualty or accidents in the Premises. Landlord or its agents shall
not be liable for any loss or damage to persons or property resulting from fire,
explosion, falling plaster, steam, gas, electricity, water, or rain which may
leak from any part of the building or from the pipes, appliance, or plumbing
works therein or from the roof, street, or subsurface or from any other place
resulting from dampness or any other cause whatsoever, unless caused by or due
to the negligence of Landlord, its agents, servants, or
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employees. Landlord or its agents shall not be liable for interference with the
light or air, or for any latent defect in the Premises.
14. HAZARDOUS SUBSTANCES
The Term "hazardous substances" as used in this lease shall include,
without limitation, flammable, explosives, radioactive materials, asbestos,
polychlorinated biphenyls (PCB's), chemicals known to cause cancer or to
reproductive toxicity, pollutants, contaminants, hazardous waste, toxic
substances or related materials, petroleum and petroleum products, and
substances declared to be hazardous or toxic under any laws or relation now or
hereafter enacted or promulgated by any governmental authority.
14.1. Tenant shall not cause or permit to occur:
(a) Any violation of any federal, state, or local law, ordinance, or
regulation now or hereafter enacted, related to environmental conditions, on,
under, or about the Premises, or arising from Tenant's use or occupancy of the
Premises, including, but not limited to soil and ground water conditions; or
(b) The use, generation, release, manufacture, refining, production,
processing, storage, or disposal of any Hazardous Substance on, under, or about
the Premises, or the transportation to or from the Premises of any Hazardous
Substance, except in the ordinary course of business and in strict compliance
with all applicable environmental laws.
14.2. Tenant shall, at Tenant's own expense, comply with all laws
regulating the use, generation, storage, transportation, or disposal of
Hazardous Substances ("Laws").
(a) Tenant shall, at Tenant's own expense, make all submissions to,
provide all information required by, and comply with all requirements of all
governmental authorities (the "Authorities") under the Laws.
(b) Should any Authority or any third party demand that a cleanup plan
be prepared and that a clean-up be undertaken because of any deposit, spill,
discharge, or other release of Hazardous Substances that occurs during the term
of this Lease, at or from the Premises, or which arises at any time from
Tenant's use or occupancy of the Premises, then Tenant shall, at Tenant's own
expense, prepare and submit the required plans and all related bonds and other
financial assurances; and Tenant shall carry out all such clean-up plans.
(c) Tenant shall promptly provide all information regarding the use,
generation, storage, transportation or disposal of Hazardous Substances that is
requested by Landlord. If Tenant fails to fulfill any duty imposed under this
Paragraph within a reasonable time,
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Landlord may do so; and in such case, Tenant shall cooperate with Landlord in
order to prepare all documents Landlord deems necessary or appropriate to
determine the applicability of the Laws to the Premises and Tenant's use
thereof, and for compliance therewith, and Tenant shall execute all documents
promptly upon Landlord's request. No such action by Landlord and no attempt made
by Landlord to mitigate damages under any law shall constitute a waiver of any
of Tenant's obligations under this paragraph.
14.3. Tenant shall indemnify, defend, and hold harmless Landlord, and
manager of the property, and their respective officers, directors,
beneficiaries, shareholders, partners, agents, and employees, from all fines,
suits, procedures, claims, and actions of every kind, and all costs associated
therewith (including attorneys' and consultants' fees) arising out of or in any
way connected with any deposit, spill, discharge, or other release of Hazardous
Substances that occurs during the term of this Lease (except as such deposits,
spills, discharges, or other releases may be caused by Landlord or Landlord's
agents, employees or contractors), at or from the Premises, or which arises at
any time from Tenant's use or occupancy of the Premises, or from Tenant's
failure to provide all information, make all submissions, and take all steps
required by all Authorities under the Laws and other environmental laws.
14.4 Tenant's obligations and liabilities under this Paragraph 14
shall survive the expiration of this Lease.
15. SUBORDINATION
As long as their respective insurers so permit, Landlord and Tenant
hereby mutually waive their respective rights of recovery against each other for
any loss insured by fire, extended coverage, and other property insurance
policies existing for the benefit of the respective parties. Each party shall
apply to their insurers to obtain said waivers. Each party shall obtain any
special endorsements, if required by their insurer, to evidence compliance with
such waiver.
16. LIABILITY INSURANCE
Tenant shall, at Tenant's expense, obtain and keep in force during the
term of this Lease a policy of comprehensive public liability insurance insuring
Landlord and Tenant against any liability arising out of the ownership, use,
occupancy, or maintenance of the Premises and all areas appurtenant thereto, and
against liability for property damage, in combined single limits of at least one
million and no/100 ($1,000,000). The limits of any such insurance shall not,
however, limit the liability of the Tenant hereunder. Tenant may provide this
insurance under a blanket policy, provided that said insurance shall have a
Landlord's protective liability endorsement attached thereto. If Tenant shall
fail to procure and maintain said insurance, Landlord may, but shall not be
required to, procure and maintain same, but at the expense of Tenant. Insurance
required hereunder shall be
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in companies acceptable to Landlord. Tenant shall deliver to Landlord, prior to
the right of entry, copies of policies of liability insurance required herein or
certificates evidencing the existence of amounts of such insurance with loss
payable clauses satisfactory to Landlord. No policy shall be cancelable or
subject to reduction of coverage without thirty (30) days prior written notice
to Landlord. All such policies shall be written as primary policies not
contributing with and not in excess of coverage which Landlord may carry. Tenant
shall be allowed to self insure for the amounts and types of insurance covered
by this paragraph.
17. UTILITIES
Tenant shall pay for all water, gas, heat, light, power, sewer
charges, garbage, telephone service, and all other services and utilities
supplied to the Premises, together with any taxes thereon. If any such services
are not separately metered to Tenant, Tenant shall pay a reasonable proportion
of such expenses to be determined by Landlord in accordance with Paragraph 6.
18. PERSONAL PROPERTY TAXES
Tenant shall pay before delinquency any and all taxes levied or
assessed and which become payable during the term hereof upon all Tenant's
leasehold improvements, equipment, furniture, fixtures, and any other personal
property located in the premises. If any or all of Tenant's leasehold
improvements, equipment, furniture, fixtures, and any other personal property
shall be assessed and taxes with the real property, Tenant shall pay to Landlord
its share of such taxes within ten (10) days after delivery to Tenant by
Landlord of a statement in writing setting forth the amount of such taxes
applicable to Tenant's property.
19. RULES AND REGULATIONS
Tenant shall faithfully observe and comply with the rules and
regulations that Landlord shall from time to time promulgate and/or modify. The
rules and regulations shall be binding upon the Tenant upon delivery of a copy
of them to Tenant. Landlord shall not be responsible to the Tenant for
noncompliance with any said rules and regulations by any other tenants or
occupants.
20. HOLDING OVER
If Tenant remains in possession of the Premises or any part thereof
after the expiration of the term hereof with the express written consent of
Landlord, such occupancy shall be a tenancy from month-to-month at a rental rate
in the amount of the last monthly Minimum Rent and Additional Rent which would
be payable hereunder during such period following the expiration of the term
hereof if the lease were still in
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effect. All the terms hereof not inconsistent with a month-to-month tenancy
shall apply to such tenancy.
21. ENTRY BY LANDLORD
Landlord reserves the right to enter the Premises to inspect the same,
to submit said Premises to prospective purchasers or tenants, to post notices of
non-responsibility, or to repair the Premises and any portion of the building of
which the Premises are a part that Landlord may deem necessary or desirable, and
during the last ninety (90) days of the term hereof or immediately following
notice of termination to Tenant in accordance with the terms hereof, to show the
Premises to prospective purchasers or tenant, all without abatement of rent. For
purposes of repair, Landlord may erect scaffolding and other necessary
structures where reasonably required by the character of the work to be
performed, always providing that the entrance to the Premises shall not be
unreasonably blocked thereby, and further providing that the business of the
Tenant shall not be interfered with unreasonably. Tenant hereby waives any claim
for damages or for any injury or inconvenience to or interference with Tenant's
business, any loss of occupancy or quiet enjoyment of the Premises, and any
other loss occasioned thereby unless due to Landlords negligence. For each of
the foregoing purposes, Landlord shall at all times have and retain a key with
which to unlock all of the doors in, upon, and about the Premises, excluding
Tenant's vaults, safes, and files, and Landlord shall have the right to use any
and all means which Landlord may deem proper to open such doors in an emergency,
in order to obtain entry to the Premises without liability to Tenant except for
any failure to exercise due care for Tenant's property. Damaged occasions by
such entry shall be repaired by landlord at Landlord's expense. Any entry to the
Premises obtained by Landlord by any means shall not under any circumstances be
construed or deemed to be a forcible or unlawful entry into, or a detainer of,
the Premises, or an eviction of the Tenant from the Premises or any portion
thereof.
22. TENANT'S DEFAULT
The occurrence of any one or more of the following events shall
constitute a default and breach of the Lease by Tenant.
(a) The failure by Tenant to make any payment of rent or any other
payment required to be made by Tenant hereunder, as and when due, where such
failure shall continue for a period of ten days after written notice thereof by
Landlord to Tenant.
(b) The failure by Tenant to observe or perform any of the covenants,
conditions, or provisions of this lease to be observed or performed by the
Tenant, other than those set forth in Paragraph 22(b), where such failure shall
continue for a period of thirty (30) days are reasonably required for its cure,
then Tenant shall not be deemed to
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be in default if Tenant commences such cure within said thirty (30) day period
and thereafter diligently prosecutes such cure to completion.
(c) The making by Tenant of any general assignment or general
arrangement for the benefit of creditors; or the filing by or against Tenant of
a petitioning to have Tenant adjudged bankrupt, or a petition or reorganization
or arrangement under any law relating to bankruptcy unless, in the case of a
petition filed against Tenant, the same is dismissed within sixty (60) days; or
the appointment of a trustee or a receiver to take possession of substantially
all of Tenant's assets located at the Premises or of Tenant's interest in this
Lease, where possession is not restored to Tenant within thirty (30) days; or
the attachment, execution, or other judicial seizure of substantially all of
Tenant's assets located as the Premises or of Tenant's interest in this lease,
where such seizure is not discharged within thirty (30) days.
23. REMEDIES IN DEFAULT
If Tenant fails to pay rent as herein required or to perform any other
covenant of this Lease, Landlord may re-enter and take possession of the
Premises and shall have all the rights of a Landlord under the Laws of the state
of Washington. Notwithstanding such retaking of possession by Landlord, Tenant
shall remain liable for the rental for the balance of the term. Upon re-entering
and taking possession of the Premises, the Landlord has several alternative
options. The Landlord may elect:
1. To terminate/cancel the Lease, in which event the unpaid rent
for the balance of the rental period if it is greater than the
present reasonable rental value of the Premises in the market
place shall be due and owing to the Landlord by the Tenant, or;
2. The Landlord may re-lease the Premises without terminating the
Lease. The Landlord has the option to re-lease all or any part
of the Premises that the Landlord is able to re-lease and which
is deemed advisable in the opinion of the Landlord to re-lease.
Upon any re-leasing of the property any and all rents received
shall be accounted to for the Tenant. The Tenant shall be
responsible for any differences between any rental amount
collected by the Landlord on re-leasing the Premises and the
rental rate of the Tenant under the Lease in determining the
amount due. The Landlord may deduct from any rental amount the
following associated expenses in releasing the Premises.
(a) Any necessary renovations and alterations of the
Premises;
(b) Reasonable attorney's fees incurred in re-leasing the
Premises;
(c) Any real estate leasing commissions paid on re-leasing
the space.
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The Tenant shall be responsible for payment to the Landlord monthly, any
deficiency between the net amount received by the Landlord for the re-lease and
the original lease amount agreed upon by the Tenant.
In the event of re-entry or taking possession of the Premises,
Landlord shall have the right but not the obligation to remove therefrom all
property located therein and may store the same in any place selected by
Landlord, including but not limited to a public warehouse at the expense and
risk of Tenant thereof with the right to sell such property without notice to
Tenant after it has been stored for a period of thirty (30) days. The proceeds
of such sale shall be applied first to the cost of sale, second to the payment
of storage charges, and third to the payment of any other sums which may then be
due to Landlord from Tenant, with any balance to be paid to Tenant.
24. DEFAULT BY LANDLORD
Landlord shall not be in default unless Landlord fails to perform
obligations required of Landlord within a reasonable time, but in no event later
than thirty (30) days after written notice by Tenant to Landlord and to the
holder of any first mortgage or deed of trust covering the Premises whose name
and address shall have theretofore been furnished to Tenant in writing,
specifying wherein Landlord has failed to perform such obligation; provided,
however, that if the nature of Landlord's obligation is such that more than
thirty (30) days are required for performance, then Landlord shall not be in
default if Landlord commences performance within such thirty (30) day period and
thereafter diligently prosecutes the same to completion. In no event shall
Tenant have the right to terminate this Lease as a result of Landlord's default,
and Tenant's remedies shall be limited to damages and/or an injunctive relief.
25. RECONSTRUCTION
In the event the Premises are damaged by fire or other perils covered
by extended coverage insurance, Landlord agrees to forthwith repair same, and
this Lease shall remain in full force and effect, except that Tenant shall be
entitled to a proportionate reduction of the Minimum Rent from the date of
damage and while such repairs are being made, such proportionate reduction to be
based upon the square footage of the devised premises which is rendered
unsuitable for occupancy by Tenant the extent to which the damage and making of
such repairs shall interfere with the business carried on by the Tenant in the
Premises. In the event the destruction of the Premises is to an extent of ten
percent (10%) or more of the full replacement cost, then Landlord shall have the
option to (1) repair or restore such damage, this Lease continuing in full force
and effect, but the Minimum Rent to be proportionately reduced as herein above
in this Article provided; or (2) give notice to Tenant at any time within sixty
(60) days after such damage, terminating this lease as of the date specified in
such notice, which date shall be not more than thirty (30) days after the giving
of such notice. In the event of giving of such notice,
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this Lease shall expire and all interest of the Tenant in the Premises shall
terminate on the date so specified in such notice and the Minimum Rent, reduced
by a proportionate reduction, based upon the square footage of the devised
Premises which is rendered unsuitable for occupancy by Tenant. The extent, if
any, to which such damage interfered with the business carried on by the Tenant
in the Premises, shall be paid up to date of said termination.
26. EMINENT DOMAIN
If more than twenty-five percent (25%) of the Premises shall be taken
or appropriated by any public or quasi-public authority under the power of
eminent domain, either party hereto shall have the right, at his option, within
sixty (60) days after said taking, to terminate this Lease upon thirty (30) days
written notice. If any portion of the Project other than the Premises may be so
taken or appropriated, Landlord shall within sixty (60) days of said taking have
the right at its option to terminate this lease upon written notice to Tenant.
In the event of any taking or appropriation whatsoever, Landlord shall be
entitled to any and all awards and/or settlements which may be given, other than
any amount specifically allocated to the value of Tenant's leasehold interest.
27. PARKING AND COMMON AREAS
Prior to the date of Tenant's opening for business in the Premises,
Landlord shall cause said common and parking area or areas to be graded,
surfaced, marked, and landscaped at no expense to the Tenant.
(a) The Landlord shall keep said automobile parking and common areas
in a neat, clean, and orderly condition, and shall repair any damage to the
facilities thereof, but all expenses in connection with said automobile parking
and common areas shall be charged and prorated in the manner as set forth in
Paragraph 6 hereof.
(b) Tenant, for the use and benefit of Tenant, its agents, employees,
customers, licensees and subtenants, shall have the exclusive use of 62 parking
spaces, and the exclusive use of an additional 37 parking spaces upon its
occupancy of Suites M and N as described in Paragraph 1(b)(1) and 1(b)(2) above,
with the location of said 99 parking spaces being highlighted in yellow on
Exhibit "C" attached hereto and incorporated herein, during the entire term of
this Lease or any extension thereof, for ingress and egress, and automobile
parking. In addition, as Tenant adds Paragraph (1)(b)(3) Expansion Space
pursuant to the terms of this Lease, additional exclusive parking shall be
granted to Tenant according to Schedule "1" attached to Exhibit "C" and
incorporated herein.
(c) The Tenant, in the use of said common and parking areas, agrees to
comply with such reasonable rules, and regulations, and charges for parking as
the Landlord may
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adopt from time to time for the orderly and proper operation of said common and
parking areas. Such rules may include but shall not be limited to the following:
(1) the restricting of employee parking to a limited, designated area or areas;
and (2) the regulation of the removal, storage, and disposal of Tenant's refuse
and other rubbish at the sole cost and expense of Tenant, or as provided in
Paragraph 6. Landlord shall not be responsible to the Tenant for noncompliance
with any said rules and regulations by any other tenants or occupants.
28. SIGNS
The Tenant may affix to the Premises only such signs, advertising
placards, names insignia, trademarks, and descriptive material as shall have
first received the written approval of the Landlord as to type, size, color,
location, copy nature, and display qualities. Anything to the contrary in the
lease notwithstanding, Tenant shall not affix any sign to the roof. Tenant may,
however, erect one sign on the front of the premises not later than the date
Tenant opens for business, in accordance with a design to be prepared by the
Tenant and approved in writing by the Landlord. Consent of Landlord shall not be
unreasonably withheld.
29. DISPLAYS
The Tenant may not display or sell merchandise within the control of
Tenant outside the defined exterior walls and permanent doorways of the
Premises. Tenant further agrees not to install any exterior lighting,
amplifiers, or similar devices or use in or about the premises an advertising
medium which may be heard or seen outside the Premises, such as flashing lights,
searchlights, loudspeakers, phonographs, or radio broadcasts.
30. AUCTIONS
Tenant shall not conduct or permit to be conducted any sale by auction
in, upon, or from the Premises whether said auction be voluntary, involuntary,
pursuant to any assignment for the payment or creditors, or pursuant to any
bankruptcy or other inclemency proceeding.
31. GENERAL PROVISIONS
(a) Plats and Riders. Exhibits, clauses, plats, riders, and addenda,
if any, affixed to this Lease are a part hereof, and specifically incorporated
by this reference as if fully set forth herein.
(b) Waiver. The waiver by Landlord of any term, covenant, or condition
herein contained shall not be deemed to be a waiver of such term, covenant, or
condition or any subsequent breach of the same or any other term, covenant, or
condition herein contained.
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The subsequent acceptance of rent hereunder by Landlord shall not be deemed to
be a waiver of any preceding default by Tenant of any term, covenant, or
condition of this Lease, other than the failure of the Tenant to pay the
particular rental so accepted, regardless of Landlord's knowledge of such
preceding default at the time of the acceptance of such rent.
(c) Joint Obligation. If there be more than one Tenant, the
obligations hereunder imposed shall be joint and several.
(d) Marginal Headings. The marginal headings and article titles to the
articles of this Lease are not a part of the Lease and shall have no effect upon
the construction or interpretation of any part hereof.
(e) Time. Time is of the essence of this Lease and each and all of its
provisions in which performance is a factor.
(f) Successors and Assigns. The covenants and conditions herein
contained, subject to the provisions as to assignment, apply to and bind the
heirs, successors, executors, administrators, and assigns of the parties hereto.
(g) Recordation. Neither Landlord nor Tenant shall record this Lease,
but a short-form memorandum hereof may be recorded at the request of Landlord or
Tenant.
(h) Quiet Possession. Upon Tenant paying the rent reserved hereunder
and observing and performing all of the covenants, conditions, and provisions on
Tenant's part to be observed and performed hereunder, Tenant shall have quiet
possession of the Premises for the entire term hereof, subject to all the
provisions of this Lease.
(i) Late Charge. Tenant hereby acknowledges that late payment by
Tenant to Landlord of rent or other sums due hereunder will cause Landlord to
incur costs not contemplated by this Lease, the exact amount of which will be
extremely difficult to ascertain. Such costs include, but are not limited to,
processing and accounting charges, and late charges which may be imposed upon
Landlord by terms of any mortgage or trust deed covering the Premises.
Accordingly, if any installment of rent or any sum due from Tenant shall not be
received by Landlord or Landlord's designed within ten (10) days after that said
amount is past due, the Tenant shall pay to Landlord a late charge equal to the
maximum amount permitted by law (and in absence of any governing law, ten
percent (10%) of such overdue amount), plus any attorney's fees incurred by
Landlord by reason of Tenant's failure to apply rent and/or other charges when
due hereunder. The parties hereby agree that such late charges represent a fair
and reasonable estimate of the cost that landlord will incur by reason of the
late payment by Tenant. Acceptance of such late charges by the Landlord shall in
no event constitute a waiver of Tenant's default with
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respect to such overdue amount, nor prevent Landlord from exercising any of the
other rights and remedies granted hereunder.
(j) Prior Agreements. This Lease contains all of the agreement of the
parties hereto with respect to any matter covered or mentioned in this lease,
and no prior agreements or understanding pertaining to any such matters shall be
effective for any purpose. No provision of this lease may be amended or added to
except by an agreement in writing signed by the parties hereto or their
respective successors in interest. This interest shall not be effective or
binding on any party until fully executed by both parties hereto.
(k) Inability to Perform. This Lease and the obligations of the Tenant
hereunder shall not be affected or impaired because the Landlord is unable to
fulfill any of its obligations hereunder or is delayed in doing so, if such
inability or delay is caused by reason of strike, labor troubles, acts of God,
or any other cause beyond the reasonable control of the Landlord.
(l) Partial Invalidity. Any provision of this Lease which shall prove
to be invalid, void, or illegal shall in no way affect, impair, or invalidate an
other provision hereof and such other provision shall remain in full force and
effect.
(m) Cumulative Remedies. No remedy hereunder shall be deemed exclusive
but shall, wherever possible, be cumulative with all other remedies at law or in
equity.
(n) Choice of Law. This Lease shall be governed by the laws of the
State of Washington. Venue for any action hereunder may be properly laid in King
County.
(o) Attorney's Fees. In the event of any action or proceeding brought
by either party against the other under this Lease, the prevailing party shall
be entitled to recover for the fees of its attorneys in such action or
proceeding, including costs of appeal, if any, in such amount as the court may
adjudge reasonable as attorney's fees. In addition, should it be necessary for
Landlord to employ legal counsel to enforce any of the provisions herein
contained, Tenant agrees to pay all attorney's fees and court costs reasonably
incurred.
(p) Sale of Premises by Landlord. In the event of any sale of the
Premises by Landlord, Landlord shall be and is hereby entirely freed and
relieved of all liability under any and all of its covenants and obligations
contained in or derived from this Lease arising out of any act, occurrence, or
omission occurring after the consummation of such sale; and the purchaser, at
such sale or any subsequent sale of the Premises, shall be deemed, without any
further agreement between the parties or their successors in interest or between
the parties and any such purchaser, to have assumed and agreed to carry out any
and all of the covenants and obligations of the Landlord hereunder.
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(q) Subordination, Attornment. Upon request of the Landlord, Tenant
will in writing subordinate its rights hereunder to the lien of any mortgage or
deed of trust, to any bank, insurance company, or other lending institution, now
or hereafter in force against the Premises, and do all advances made or
hereafter to be made upon the security thereof. In the event any proceedings are
brought for foreclosure, or in the event of the exercise of the power of sale
under any mortgage or deed of trust made by the Landlord covering the premises,
the Tenant shall attorn to the purchaser upon any such foreclosure or sale and
recognize such purchaser as the Landlord under this Lease. The provisions of
this paragraph to the contrary notwithstanding, and so long as Tenant is not in
default hereunder, this Lease shall remain in full force and effect for the full
term hereof.
(r) Notices. All notices and demands which are required or permitted
to be given by either party on the other hereunder shall be in writing. All
notices and demands by the Landlord to the Tenant shall be sent by United States
Mail, postage prepaid, addressed to the Tenant at the address set forth herein,
or to such other place as Tenant may from time to time designate in a notice to
the Landlord. All notices and demands by the Tenant to the Landlord shall be
sent by United States Mail, postage prepaid, addressed to the Landlord at the
address set forth herein, and to such other person or place as the Landlord may
from time to time designate in a notice to the Tenant.
To Landlord at: KAMBER PARK ASSOCIATES
c/o The ▇▇▇▇ Group
▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
To Tenant at: OPTIVA CORPORATION
▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(s) Tenant's Statement. Tenant shall at any time and from time to
time, upon not less than seven (7) days prior written notice from Landlord,
execute, acknowledge, and deliver to Landlord a statement in writing (1)
certifying that this Lease is unmodified and in full force and effect (or, if
modified, stating the nature of such modifications and certifying that this
Lease as so modified is in full force and effect), and the date to which the
rental and other charges are paid in advance, if any; and (2) acknowledging that
there are not, to Tenant's knowledge, any uncured defaults on the part of the
Landlord hereunder, or specifying such defaults if any are claimed; and (3)
setting forth the date of commencement of rents and expiration of the term
hereof. Any such statement may be relied upon by the prospective purchaser or
encumbrancer of all or any portion of the real property of which the Premises
are a part.
(t) Authority of Tenant. If Tenant is a corporation, each individual
executing this Lease on behalf of said corporation represents and warrants that
he is duly authorized
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to execute and deliver this Lease on behalf of said corporation, in accordance
with the bylaws of said corporation, and that this Lease is binding upon said
corporation and Tenant shall provide Landlord with a Certified Corporate
Resolution authorizing Tenant to enter into this Lease. The parties hereto
acknowledge and agree that they have each been represented in the negotiations
and preparation of this Lease by independent counsel of their choice, and that
they have read this Lease, have had its contents fully explained to them by such
counsel, and are aware of the contents hereof and of its legal effect. No
representation or recommendation is made by the Landlord, real estate broker, or
its agents or employees. In the event it should be determined that any provision
of this Agreement is uncertain or ambiguous, the language in all parts of this
Agreement shall be in all cases construed as a whole according to its fair
meaning and not strictly construed for nor against any party.
(u) Unavoidable Circumstances. No party hereto shall be deemed to be
in breach or in violation of this Agreement if the party is prevented from
performing any of its obligations hereunder for any reason beyond its reasonable
control including and without limitation acts of God, riots, strikes, fires,
storms, public disturbances, or any regulation of any federal, state or local
government or any agency thereof. Without limiting the generality of the
foregoing, Landlord shall not be liable if any such unavoidable circumstances
prevent it from delivering Expansion Space to Tenant in a timely manner.
32. BROKERS
Tenant warrants that it has had no dealings with any real estate
broker or agents in connection with the negotiation of this lease excepting only
The ▇▇▇▇ Group, Inc., Property Investments Incorporated and Business Space
Resources Ltd.; it knows of no other real estate broker or agent who is entitled
to a commission in connection with this lease.
33. ARBITRATION OF ALL CONTROVERSIES AMERICAN ARBITRATION ASSOCIATION
Any disagreements between the parties with respect to the
interpretation or application of the lease or the obligations of the parties
hereunder may be determined by arbitration. Such arbitration may be conducted
only upon the request of the Landlord and the Tenant before one arbitrator
designated by the American Arbitration Association and in accordance with the
rules of such Association. The arbitrator designated and acting under this Lease
shall make his award in strict conformity with such rules and provisions
thereof. The expenses of arbitration together with reasonable attorneys' fees
and costs incurred shall be the responsibility of the losing party, all as
determined by the arbitrator and notwithstanding any contrary provisions in the
rules of the American Arbitration
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Association. All arbitration proceedings shall be conducted in the City of
Seattle, or any other location designated at the sole option of the Landlord.
34. FAIR RENTAL VALUE.
Whenever the provisions of this Lease require a determination of the
fair rental value of a Suite in the Project, said fair rental value shall be
determined in accordance with the procedure set forth in this Section 34.
As used in this Lease, the "fair rental value" shall mean the annual
rate of base monthly rent per rentable square foot being quoted by owners to
prospective tenants of comparable status and financial condition and comparable
use or, to the extent applicable, to existing tenants, at such point in time
(i) for space in the Project and for space in other
office/warehouse buildings in the same general area that
are comparable to the Project in age, class and quality,
which space in comparable in size, location and
configuration with respect to which such rate is to
apply; and
(ii) for a lease term of substantially the same duration and
commencement date as the term for the applicable Suite.
The parties shall have thirty (30) days after a Triggering Event in
which to agree on the fair rental value of the applicable Suite. If Landlord and
Tenant are unable to agree on the fair rental value for the applicable Suite by
that time, then the fair rental value shall be arbitrated in the following
manner: Landlord and Tenant shall each, within five (5) days thereafter, select
an arbitrator who shall be a disinterested person with reasonable knowledge and
experience relative to the subject to be arbitrated. The two arbitrators thus
selected shall immediately thereafter select a third arbitrator who shall
likewise be a disinterested person having reasonable knowledge and experience
relative to the subject to be arbitrated. The three arbitrators so chosen shall
meet promptly after the appointment of the third arbitrator and shall act as a
committee to determine the fair rental value of the affected premises, subject
to the definition of "fair rental value" set forth above and the limitations set
forth below. The expenses of the individual arbitrators shall be borne by the
appointing parties, and the expense of the third arbitrator shall be borne
equally by Landlord and Tenant. In no event shall the fair rental value of a
Suite as determined by negotiation between Landlord and Tenant or as determined
by arbitration be less than the then current monthly rental for that particular
Suite as set forth in Section 3(b) above.
35. CONSTRUCTION OF LEASE.
This Lease is intended to supersede and replace the Lease between
Landlord and Tenant dated February 17, 1995, except with respect to the lease of
the Current Premises
DB DG
-------- ------
LANDLORD TENANT
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CONFIDENTIAL
until the effective date of this Lease. Without limiting the generality of the
foregoing, Landlord shall have no obligation to provide tenant improvements to
Tenant for the Current Premises or Expansion Space.
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be
duly executed as of the date and year first above written.
DB DG
-------- ------
LANDLORD TENANT
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CONFIDENTIAL
LANDLORD: TENANT:
KAMBER PARK ASSOCIATES OPTIVA CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------ ------------------------------
Its: General Partner Its: President/CEO
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
I certify that I know or have satisfactory evidence that ▇▇▇▇▇ ▇.
▇▇▇▇▇▇ is the person who appeared before me, and that person acknowledged
signing this instrument, on oath stated his authority to execute the instrument
and acknowledged it as the authorized agent of the party on behalf of KAMBER
PARK ASSOCIATES to be the free and voluntary act of such party for the uses and
purposes mentioned in the instrument.
SUBSCRIBED and SWORN to before me this 16th day of May, 1995.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
(printed name): ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
NOTARY PUBLIC in and for the State
of Washington, residing at Bellevue
My Commission expires: 3-4-97
[Seal]
DB DG
-------- ------
LANDLORD TENANT
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CONFIDENTIAL
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
I certify that I know or have satisfactory evidence that ▇▇▇▇▇
▇▇▇▇▇▇▇▇ is the person who appeared before me, and that person acknowledged
signing this instrument, on oath stated his authority to execute the instrument
and acknowledged it as the authorized agent of OPTIVA CORPORATION to be the free
and voluntary act of such party for the uses and purposes mentioned in the
instrument.
SUBSCRIBED and SWORN to before me this 15th day of May, 1995.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
-----------------------------------
(printed name):
NOTARY PUBLIC in and for the State
of Washington, residing at Kirkland
My Commission expires:
[Seal]
DB DG
-------- ------
LANDLORD TENANT
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CONFIDENTIAL
OPTIVA RENT AT KAMBER PARK
5/2/95
Sq. Ft. Rate/ Sq. Ft. Rate/ Rate for Total Date
Suite Sq. Ft. Office sq ft/mo Warehouse sq ft/mo the Suite Rent/mo. Rent/mo. Effective
K&L 11,032 6,046 $1.00 4,986 $0.50 $8,539.00 $8,539.00 Mar-95
D 13,892 1,910 11,982 $0.54 7,501.68 $16,040.68 Jun-95
M 6,940 940 $1.00 6,000 $0.50 3,940.00 $19,980.68 est Aug-95
D Rate Increase $0.55 7,640.60 $20,119.60 Aug-95
N 7,872 1,390 $1.00 6,482 $.050 4,631.00 $24,750.60 Nov-95
D Rate increase $0.56 7,779.52 $24,889.52 Aug-96
M&N Rate increase $1.03 $0.515 8,828.13 $25,146.65 Nov-96
D, K & L Rate increase $1.03 $0.515 16,933.20 $25,761.33 Aug-97
M&N Rate increase $1.06 $0.53 9,085.26 $26,018.46 Nov-97
D, K & L Rate increase $1.06 $.053 17,426.40 $26,511.66 Aug-98
M&N Rate increase $1.09 $0.545 9,342.39 $26,768.79 Nov-98
D, K & L Rate increase $1.09 $0.545 17,919.60 $27,261.99 Aug-99
M&N Rate increase $1.12 $0.56 9,599.52 $27,519.12 Nov-99
Note: The rents shown are the minimum rents per the lease.
29
CONFIDENTIAL
OPTIVA RENT AT KAMBER PARK
5/2/95
Sq. Ft. Rate/ Sq. Ft. Rate/ Rate for Total Date
Suite Sq. Ft. Office sq ft/mo Warehouse sq ft/mo the Suite Rent/mo. Rent/mo. Effective
K&L 11,032 6,046 $1.00 4,986 $0.50 $8,539.00 $8,539.00 Mar-95
D 13,892 1,910 11,982 $0.54 7,501.68 $16,040.68 Jun-95
M 6,940 940 $1.00 6,000 $0.50 3,940.00 $19,980.68 est Aug-95
D Rate Increase $0.55 7,640.60 $20,119.60 Aug-95
N 7,872 1,390 $1.00 6,482 $.050 4,631.00 $24,750.60 Nov-95
D Rate increase $0.56 7,779.52 $24,889.52 Aug-96
M&N Rate increase $1.03 $0.515 8,828.13 $25,146.65 Nov-96
D, K & L Rate increase $1.03 $0.515 16,933.20 $25,761.33 Aug-97
M&N Rate increase $1.06 $0.53 9,085.26 $26,018.46 Nov-97
D, K & L Rate increase $1.06 $.053 17,426.40 $26,511.66 Aug-98
M&N Rate increase $1.09 $0.545 9,342.39 $26,768.79 Nov-98
D, K & L Rate increase $1.09 $0.545 17,919.60 $27,261.99 Aug-99
M&N Rate increase $1.12 $0.56 9,599.52 $27,519.12 Nov-99
Note: The rents shown are the minimum rents per the lease
30
CONFIDENTIAL
May 12, 1995
▇▇. ▇▇▇ ▇▇▇▇▇▇
Gymnastics East, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear ▇▇. ▇▇▇▇▇▇,
Optiva Corp. appreciates you cooperation in helping provide
additional expansions space. Pursuant to our agreement and your amended lease
with Kamber Park Associates I am enclosing an $8,000 check to help defray
certain costs for Gymnastics East to move into Suite C. Optiva will provide an
additional $8,000 upon Gymnastics East occupying Suite C.
Please acknowledge by signing in the space provided below, returning
the original to me in the enclosed envelope.
Sincerely,
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Finance Director
Acknowledged by:
/s/ ▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
▇▇. ▇▇▇ ▇▇▇▇▇▇
Gymnastics East, Inc.
cc: ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
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CONFIDENTIAL
AMENDMENT TO LEASE
This is an amendment to that certain Lease (the "Lease") dated
February 11, 1993, by and between Kamber Park Associates, Landlord, and
Gymnastics East, Inc., Tenant.
Landlord hereby gives its consent to Tenant, and Tenant hereby agrees,
to move from Tenant's current location at Kamber Park, Suite M, to Suite C. Said
move shall occur upon the vacation of Suite C by its current occupant, US West.
As soon as practicable following mutual execution of this Amendment, Landlord
shall give US West the requisite ninety (90) day written notice to vacate Suite
C. Tenant's occupancy of Suite C shall commence immediately upon vacation by US
West. Landlord shall not be liable should US West fail to vacate Suite C in a
timely manner.
Tenant's new Premises (Suite C) shall encompass an area, including
warehouse and some office space, totaling approximately 8,620 square feet. Based
on rates of $.50/square foot for warehouse space, and $1.00/square foot for
office space, the monthly NNN rent payable through the balance of Tenant's term
will be $5,405.00. Rent shall be paid at these amounts regardless of the actual
square footage of the new or current Premises.
Optiva Corporation, by virtue of a separate agreement with Landlord,
has agreed to contribute $1,000.00 per month of Tenant's rent, through direct
payments to Landlord. Tenant's net monthly rent will therefore be $4,505.00. In
consideration of certain expenses associated with Tenant's move to Suite C,
Optiva Corporation has also agreed to pay directly to Tenant the amount of
$8,000.00 payable on mutual execution and acknowledgment of this Amendment, and
an additional $8,000.00 when Tenant takes occupancy of Suite C. Except as set
forth in this paragraph, the move described herein shall be at Tenant's cost and
expense.
Tenant, for the use and benefit of Tenant, its agents, employees,
customers, licensees and subtenants, shall have the exclusive use of sixteen
(16) parking spaces, with the location of said parking spaces being highlighted
in yellow on Exhibit "A" attached hereto and incorporated herein, during the
entire term of this Lease or any extension thereof, for ingress and egress, and
for automobile parking.
Tenant is hereby given the option to terminate the Lease at any time
during the term thereof upon sixty (60) days' prior written notice to Landlord.
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CONFIDENTIAL
ALL OTHER TERMS AND CONDITIONS OF THE ORIGINAL LEASE SHALL REMAIN IN
FULL FORCE AND EFFECT.
LANDLORD: TENANT:
KAMBER PARK ASSOCIATES GYMNASTICS EAST, INC.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇ ▇▇▇▇▇▇
---------------------------- ----------------------------
By: ▇▇▇▇▇ ▇▇▇▇▇▇ By: ▇▇▇ ▇▇▇▇▇▇
Date: 5/16/95 Date: 5/18/95
----------------------- -----------------------
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