EXHIBIT 10.2
INDUSTRIAL LEASE
THIS LEASE AGREEMENT made this 20th day of May, 1997, by and BETWEEN BENAROYA
CAPITAL COMPANY, L.L.C., a Washington limited liability corporation (the
"Lessor") and ICOS CORPORATION (the "Lessee").
1. PREMISES. Lessor does hereby lease to Lessee those certain premises, to
wit: approximately 13,158 square feet of space in the Building located at
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ in Bothell, Washington as outlined on Exhibit A
attached hereto (hereinafter called "Premises") The Building is hereafter
sometimes referred to as the "Project". In addition, the Lessee has the
right, in common with other tenants in the Project and subject to the Rules
and Regulations, to use of the Common Areas including the parking areas.
See Legal Description attached as Exhibit B which Exhibit is incorporated
herein by reference.
2. TERM. This Lease shall be for a term of Five (5) years commencing May 22,
1997 (the "Commencement Date") and terminating May 21, 2002.
3. RENT. Lessee covenants and agrees to pay Lessor at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, or to such other party or at such other
place as Lessor may hereafter designate, monthly rent in advance without
offset or deduction, on or before the first (1st) day of each month of the
Lease term in the amounts as follows:
Months: Base Rent:
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1 through 36 $7,895.00 per month
37 through 60 $8,606.00 per month
4. SECURITY DEPOSIT. Lessee has deposited with Lessor on the date hereof
Eight Thousand Six Hundred and Six and No/100 dollars ($8,606.00). Said
sum shall be held by Lessor as security for the faithful performance by
Lessee of all the terms, covenants and conditions of this Lease to be kept
and performed by Lessee during the entire Term hereof. If Lessee defaults
with respect to any provision of this Lease, including, but not limited to,
the provisions relating to the payment of Minimum Rent, Percentage Rent,
Adjustments or other charges or sums due under this Lease, Lessor may (but
shall not be required to) use, apply or retain all or any part of the
security deposit for the payment of any Minimum Rent, Percentage Rent,
Adjustments or other charges or sums due under this Lease or any sum in
default, or for the payment of any amount which Lessor may spend or become
obligated to spend by reason of Lessee's default, or to compensate Lessor
for any other loss, damage, cost or expense (including attorneys' fees)
which Lessor may suffer or incur by reason of Lessee's default. If any
portion of said security deposit is so used or applied, Lessee shall,
within five (5) days after written demand therefor, deposit a certified or
cashier's check with Lessor in an amount sufficient to restore the security
deposit to its original amount and Lessee's failure to do so shall be a
default under this Lease. Lessor shall not be required to keep the
security deposit separate from its general funds and Lessee shall not be
entitled to interest on such deposit. If Lessee shall fully and faithfully
perform every provision of this Lease to be performed by it, the security
deposit or any balance thereof after deduction hereunder by Lessor shall be
returned to Lessee (or, at Lessor's option, to the last assignee of
Lessee's interest hereunder) within thirty (30) days following expiration
of the Lease Term; provided, that in the event this Lease shall be
terminated upon the default of the Lessee, the security deposit shall be
retained by Lessor and all of Lessee's interest therein shall terminate and
the security deposit will be applied against the damages suffered by Lessor
by reason of the Lessee's default. In the event of termination of Lessor's
interest in this Lease, Lessor shall transfer said deposit to Lessor's
successor in interest.
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5. USE. Lessee shall use the Premises for the purposes of office, laboratory,
process development and related support services (including light
manufacturing and storage related to the foregoing) and for no other
purposes, without prior written consent of Lessor, and shall comply with
all governmental laws, ordinances, regulations, orders and directives and
insurance requirements applicable to Lessee's use of the Premises. Lessee
shall not occupy or use or permit any portion of the Premises to be
occupied or used in such a manner or for any purpose which would increase
the cost of insurance coverage upon the Premises, the building or the
contents thereof.
6. RULES AND REGULATIONS. Lessee agrees to comply with any Rules and
Regulations attached hereto, as well as such other reasonable rules and
regulations as may from time to time be adopted by Lessor for the
management, good order and safety of common areas, the building and its
Lessee(s). Lessee shall be responsible for the compliance with such rules
and regulations by its employees, agents and invitees. Lessor's failure to
enforce any of such rules and regulations against Lessee or any other
Lessee shall not be deemed to be a waiver of same. Lessor agrees to
enforce the Rules and Regulations equitably among all tenants of the
Project.
7. MAINTENANCE. Lessee agrees by taking possession that the Premises are in
tenantable and good condition. Lessee shall at its expense and at all
times keep, maintain, repair and replace the Premises, including but not
limited to storefronts, exterior doors and windows, Lessee division walls
and mechanical, electrical, sprinkler and other utility systems, together
with connections to utility distribution systems, in good condition, repair
and order and in accordance with applicable laws, ordinances, rules,
regulations and requirements of government authorities and insurance rating
bureaus. Lessee agrees to maintain a preventative maintenance contract
providing for the regular inspection and maintenance of the heating and air
conditioning systems with a licensed mechanical contractor and containing
terms and specifications acceptable to Lessor. Lessee shall further keep
the Premises and adjoining common areas in a neat, clean, safe and sanitary
condition; protect water, drain, gas and other pipes to prevent freezing or
clogging and repair all leaks and damage caused thereby; replace all glass
and panels in windows and doors of the Premises which become cracked,
broken or damaged; and remove ice and snow from entries and common areas
immediately adjacent to the Premises. After reasonable notice from Lessee,
Lessor shall repair the roof, exterior walls (excluding storefronts, doors
and windows), foundations and common areas and facilities, if any, and the
cost thereof shall be shared as provided in Section 9 hereof.
8. UTILITIES AND FEES. Lessee agrees to pay promptly when due all charges for
light, heat, water, sewer, garbage, fire protection and other utilities and
services to the Premises, and all license fees and other governmental
charges levied on Lessee's property and the operation of Lessee's business
on the Premises. Lessor shall not be liable for any injury or damages
suffered as a result of the interruption of utilities or services by fire,
or other casualty, strike, riot, vandalism, the making of necessary repairs
or improvements, or other causes beyond Lessor's control.
9. MONTHLY OPERATING EXPENSE ADJUSTMENTS. Lessee shall pay as additional
monthly rent its prorata share of all expenses incurred by Lessor for
operation of the Project during the term or any extension hereof, as
follows:
a) Real Estate taxes and assessments, including any assessments levied by
the Owner's Association.
b) Usual and necessary costs of operation, maintenance and repair as
determined by standard accounting practice, including without
limitation, all utilities and services not metered or charged
directly to Lessee, insurance, painting, upkeep and repair of
building exterior, roofing, parking, landscaping, and all common
areas and facilities. If any portion of the Property, or any
system or equipment is replaced by Lessor, and if the useful life
of such replaced item extends beyond the term of this Lease (as
such term may be extended by the exercise of any options), the
cost of such replacement will be prorated over its useful life
and Lessee will be responsible only for that portion of the cost
which is applicable to the lease term (as extended).
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c) A Management fee equal to three percent (3%) of Lessee's monthly base
rent. Lessor shall from time to time estimate and provide notice to
Lessee of its monthly expense based upon existing costs. Such monthly
estimated amount shall be paid by Lessee on or before the first day of
each month. Lessor, annually or upon termination hereof, shall compute
Lessee's actual expenses. Any overpayment shall be applied as a
credit to Lessee against future expense payments. Any deficiency
shall be paid to Lessor by Lessee within fifteen (15) days after the
date of Lessor's statement. Lessor's records showing expenditures
made for such expenses shall be available for Lessee's inspection at
any reasonable time.
10. LESSOR'S RESERVATIONS. Lessor reserves the right without liability to
Lessee: (a) at reasonable times and upon notice that is reasonable under
the circumstances (no notice being required in cases of emergency) to
inspect the Premises, and within the last nine (9) months of the Term, to
show them to prospective Lessees, and if they are vacated, to prepare them
for re-occupancy; (b) to retain at all times and to use in appropriate
instances keys to doors within and into the Premises; (c) to make repairs,
alterations, additions or improvements, whether structural or otherwise, in
or about the building, and for such purposes to enter upon the Premises and
during the continuance of any work, to close common areas and to interrupt
or temporarily suspend building services and facilities, all without
affecting any of Lessee's obligations hereunder, so long as the Premises
are reasonably accessible; and (d) generally to perform any act relating to
the safety, protection and preservation of the Premises or building.
11. POSSESSION. If Lessor does not deliver possession of the Premises at the
Commencement Date of the term of this Lease then all rent due under this
Lease shall ▇▇▇▇▇ one day after possession is delivered for every four days
that possession is delayed, and Lessee may give Lessor written notice of
its intention to cancel this Lease if possession is not delivered within
ninety (90) days after receipt of such notice by Lessor. Lessor shall not
be liable for any other damages caused by failure to deliver possession of
the Premises and Lessee shall not be liable for any rent until such time as
Lessor delivers possession and for any additional period for which rent is
abated pursuant to this Section 11.. A delay of possession shall not
extend the termination date. If Lessor offers possession of the Premises
or any portion thereof prior to the Commencement Date of the term of this
Lease, and if Lessee accepts such early possession, then both parties shall
be bound by all of the covenants and terms contained herein during such
period of early possession including the payment of rent which shall be
pro-rated accordingly and for the number of days of such early possession.
Subject to the payment by Lessor to Lessee in the amount of $27,921.00 at
time of delivery of possession of the Premises, Lessee will accept the
Premises "as is" with no obligation by Lessor the repair, restore, modify,
alter, or improve the Premises.
12. ASSIGNMENT AND SUBLETTING. Lessee shall not either voluntarily or by
operation of law assign, transfer, convey or encumber this Lease or any
interest under it, or sublet to occupy or use the Premises without Lessor's
prior written consent which consent shall not be unreasonably withheld or
delayed. Among the criteria to be used by Lessor in evaluating a request
for assignment or subletting will be (i) the proposed use of the Premises;
(ii) the anticipated impact, if any, on parking; (iii) the financial
capacity of the assignee/sublessee to perform the obligations under this
Lease; (iv) the compatibility of the proposed user with the remainder of
the tenants and operation of the Building. Lessor reserves the right to
recapture the Premises or applicable portion thereof in lieu of giving its
consent by notice given to Lessee within twenty (20) days after receipt of
Lessee's written request for assignment or subletting. Such recapture
shall terminate this Lease as to the applicable space effective on the
prospective date of assignment or subletting, which shall be the last day
of a calendar month and not earlier than sixty (60) days after receipt of
Lessee's request hereunder. Lessee shall have three (3) days following
receipt of notice of Lessor's election to recapture to notify Lessor of its
withdrawal of its request to assign or sublet. In the event that Lessor
shall not elect to recapture and shall thereafter give its consent, Lessee
shall pay Lessor a reasonable fee, not to exceed Five Hundred And No/100
Dollars ($500.00) to reimburse Lessor for processing costs incurred in
connection with such consent. Lessor's consent shall not release or
discharge Lessee from future liability under this Lease and shall not waive
Lessor's right to consent to any future assignment or sublease. Any
assignment or subletting without Lessor's consent shall be void and shall,
at Lessor's option, constitute a default under this Lease. A transfer by
the present majority shareholders of ownership or control of a majority of
the voting stock of a corporate Lessee shall be deemed an assignment.
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13. ALTERATIONS. After obtaining the prior written consent of Lessor, which
shall not be unreasonably withheld or delayed, Lessee may make minor
alterations, additions and improvements in said Premises (so long as such
alterations, additions or improvements are not structural in nature and not
visible from the exterior of the Premises) at its sole cost and expense.
Lessee agrees to save Lessor harmless from any damage, loss, or expense
arising therefrom and to comply with all laws, ordinances, rules and
regulations. Upon termination of this Lease, all alterations, additions
and improvements made in, to or on the Premises (including without
limitation all electrical, lighting, plumbing, heating, air conditioning,
and communications equipment and systems, doors, windows, partitions,
drapery, carpeting, shelving, counters, and physically attached fixtures
unless excluded by written agreement annexed hereto), shall remain upon and
be surrendered as a part of the Premises; provided however, upon Lessor's
request, Lessee shall remove those additions, alterations, or improvements
as may be specified by Lessor, and repair and restore the Premises to is
original condition at Lessee's sole cost and expense prior to expiration of
the Term. Lessee may accompany its request for consent with an additional
request for a determination by Lessor of its requirements with regard to
the disposition of such improvements at the expiration of the Lease.
Lessor will respond to such request along with its response to the request
for consent.
14. LIENS. Lessee shall keep the Premises free from any liens arising out of
any work performed, materials furnished, equipment supplied, or obligations
incurred by or on behalf of Lessee. No work performed, material furnished,
equipment supplied or obligations incurred by or on behalf of Lessee shall
be deemed to be for the immediate use and benefit of Lessor so that no
mechanic's lien or other lien shall be allowed against Lessor's estate in
the premises. Lessee shall provide, at Lessee's own cost, waivers of lien
signed by any party (including the Lessee) who performs work, furnishes
materials, or supplies equipment to the Premises. For any single project,
the cost of which will exceed Two Hundred Fifty Thousand and No/100 Dollars
($250,000.00) Lessor may require, at Lessee's sole cost and expense, a lien
release and completion bond in an amount equal to either the actual
contract price or one and one-half times the estimated cost of any
improvements, additions or alterations in the Premises which Lessee desires
to make, to insure Lessor against any liability for lien and to insure
completion of the work.
15. SIGNS. All signs or symbols placed by Lessee in the windows and doors of
the Premises, or upon any exterior part of the building, shall be subject
to Lessor's prior written approval. Prior to termination of this Lease,
Lessee will remove all signs placed by it upon the Premises, and will
repair any damages caused by such removal.
16. INSURANCE.
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A. Lessee shall pay for and maintain, during the entire Lease Term, the
following policies of insurance:
(i) Commercial general liability insurance, including
products, completed operations coverage and auto liability
insurance covering Lessee's operations and the Premises including
but not limited to coverage for personal injuries with limits of
not less than $2,000,000 combined single limit for death,
personal injury, and property damage, per occurrence, including
Lessor as an additional insured. Such policies shall be endorsed
to provide contractual liability insurance covering all liability
assumed by Lessee under the provisions of this Lease and a copy
of said endorsement will be delivered to Lessor prior to
commencement of the Term.
(ii) Special cause of loss or "all risk" perils property
insurance upon all building improvements and alterations on the
Premises and upon Lessee's property, including but not limited to
Fire and Extended Coverage, Vandalism and Malicious Mischief, in
the amount of one hundred percent (100%) full replacement cost,
including Lessor as an additional insured, as its interests may
appear, with a loss payable clause in favor of Lessor to the
extent of Lessor's interest in property damaged, except to the
extent proceeds are required to be paid to holders of mortgages
or trust deeds.
B. Each policy provided by Lessee shall expressly provide that it shall
not be subject to cancellation or material change without at least
thirty (30) days prior written notice to the Lessor. Lessee shall
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furnish Lessor, prior to commencement of the Term, with insurance
certificates and, upon request, copies of such policies required to be
maintained hereunder.
▇. ▇▇▇▇▇▇ shall maintain, during the entire Lease Term, "all risk" perils
property insurance upon the building, including but not limited to
earthquake, flood, fire and extended coverage, in the amount of one
hundred percent (100%) full replacement cost.
17. INDEMNITY AGAINST LIABILITY FOR LOSS OR DAMAGE
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A. Lessee assumes all liability for and shall indemnify, hold harmless
and defend Lessor from and against all loss, damage or expense which
the Lessor may sustain or incur, and against any and all claims,
demands, suits and actions whatsoever, including expense of
investigation and litigation, on account of injury to or death of
persons, including without limitation employees of Lessor, employees
of Lessee or its affiliated companies or on account of damage to or
destruction of property, including without limitation property owned
by and property in the care, custody or control of Lessor during the
Term, due to or arising in any manner from:
(i) The acts or negligence of Lessee or any contractor,
subcontractor, or agent of Lessee or their respective employees;
(ii) The condition, use or operation of the Premises and/or materials
or substances used by Lessee or any of its contractors,
subcontractors or agents of Lessee or by their respective
employees, regardless of whether or not furnished by Lessor under
this Lease or otherwise;
(iii) Any damage or injury to persons or property arising out of
Lessee's breach or this Lease, including, but not limited to,
obligations of Lessee under Section 7, Maintenance.
▇. ▇▇▇▇▇▇ shall have no liability to Lessee as a result of loss or damage
to Lessee's property or for death or bodily injury caused by the acts
or omissions of other tenants in the project or by third parties
(including criminal acts).
C. It is mutually understood and agreed that the assumption of
liabilities and indemnification provided for in this Section shall
survive any termination of this Lease.
D. Lessee, its agents, trustees, officers, employees, contractors and
invitees, shall not be liable to Lessor or its agents, employees,
contractors or invitees or to any third party for any damage to person
or the Premises caused by or arising from or in connection with any
act, or negligence of Lessor. Lessor agrees to indemnify, hold
harmless and defend Lessee, its agents, trustees, officers, employees,
contractors and invitees from and against any and all liability
claims, causes of action, damages, costs and expenses (including,
without limitation, attorney's fees) arising from or in connection
with any act, or neglect of Lessor or its agents, employees,
contractors or invitees; and from any breach or default under this
Lease by Lessor.
18. DAMAGE OR DESTRUCTION. If any of the Premises, or a substantial part of
the building in which the Premises are located, shall be damaged or
destroyed by fire or other insured casualty, to the extent of more than 40%
of its replacement cost and repair of the damage can not be completed
within one hundred eighty (180) days, Lessor shall have the option either
(a) to repair or rebuild within a reasonable time utilizing the insurance
proceeds to effect such repair, or (b) not to repair or rebuild, and to
cancel this Lease on thirty (30) days notice. If Lessor fails to give
Lessee written notice of its election within thirty (30) days from the date
of damage, or if the restoration of the Premises cannot be completed within
one hundred eighty (180) days from date of notice, Lessee may cancel this
Lease at its option on thirty (30) days notice. During the period of
untenantability, rent shall ▇▇▇▇▇ in the same ratio as the portion of the
Premises rendered untenantable bears to the whole of the Premises; provided
that if the damage is due to the fault or neglect of Lessee, there shall be
no abatement of rent.
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If the Premises or the building in which the Premises are located shall be
damaged or destroyed by fire or other insured casualty, and repair of the
damage can be completed within one hundred eighty (180) days, Lessor shall
to repair or rebuild within a reasonable time utilizing the insurance
proceeds to effect such repair.
If a substantial part of the Premises or the building in which the Premises
are located shall be damaged or destroyed by an uninsured casualty Lessor
shall have the option either (a) to repair or rebuild within a reasonable
time, or (b) not to repair or rebuild, and to cancel this Lease on thirty
(30) days notice. In the event of cancellation by Lessor as a result of an
uninsured casualty, Lessee shall have the right, within five (5) days
following Lessor's notice of cancellation, to override such cancellation by
agreeing to repair the damage at Lessee's sole cost and expense. In such
event, the Lessee shall repair or rebuild within a reasonable time
following the damage or destruction.
19. EMINENT DOMAIN. If the whole of the Premises shall be taken by any public
authority under the power of eminent domain, or purchased by the condemnor
in lieu thereof, then the term of this Lease shall cease as of the date
possession is taken by such public authority. If only part of the Premises
shall be so taken, the Lease shall terminate only as to the portion taken,
and shall continue in full force and effect as to the remainder of said
Premises, and the monthly rent shall be reduced proportionately; provided,
however, if the remainder of the Premises cannot be made tenantable for the
purposes for which Lessee has been using the Premises or if more than
twenty-five percent (25%) of the rentable square footage of the Premises
shall be so taken, then either party, by written notice to the other,
given at least thirty (30) days prior to the date that possession must be
surrendered to the public authority, may terminate this Lease effective as
of such surrender of possession. If any part of the building other than
the Premises shall be so taken so as to render in Lessor's opinion the
termination of this Lease beneficial to the remaining portion of the
building, Lessor shall have the right within sixty (60) days of said taking
to terminate this Lease upon thirty (30) days written notice to Lessee. In
the event of any taking, whether whole or partial, Lessor shall be entitled
to all awards, settlements, or compensation which may be given for the land
and buildings. Lessee shall have no claim against Lessor for the value of
any unexpired term of this Lease.
20. INSOLVENCY. If Lessee shall be declared insolvent or bankrupt, or if
Lessee's leasehold interest herein shall be levied upon or seized under
writ of any court of law, or if a trustee, receiver or assignee be
appointed for the property of Lessee, whether under operation of State or
Federal statutes, then Lessor may, at its option, immediately, without
notice (notice being expressly waived), terminate this Lease and take
possession of said Premises, without, however, terminating Lessee's
obligations under this Lease.
21. DEFAULT AND RE-ENTRY. If Lessee fails to keep or perform any of the
covenants and agreements herein contained, then the same shall constitute a
breach hereof, and if Lessee has not remedied such breach within three (3)
days after written notice thereof from Lessor if the breach is non-payment
of rent or other charges, or within ten (10) days after written notice
thereof from Lessor in the event of the breach of any other covenant,
except that if the breach cannot reasonably be cured within such ten (10)
day period, then if Lessee fails to commence to cure within such ten (10)
day period and thereafter, diligently prosecute such cure to completion,
then Lessor may, at its option, without further notice or demand:
(a) Cure such breach for the account and at the expense of Lessee and such
expense shall be deemed additional rent due on the first of the
following month; or
(b) Re-enter the Premises, remove all persons therefrom, take possession
of the Premises and remove all personal property therein at Lessee's
risk and expense and (1) terminate this Lease, or (2) without
terminating the Lease or in any way affecting the rights and remedies
of Lessor or the obligations of Lessee, re-let the whole or any part
of the Premises as agent for Lessee, upon such terms and conditions as
Lessor may deem advisable. In either event, any moneys received from
Lessee and any deposit or other amounts held by Lessor may first be
applied by Lessor to any damages suffered by Lessor as a result of
such default, including without limitation, costs and expenses
incurred on re-entry and re-letting, any unamortized tenant
improvements and commissions, cleaning, necessary repairs, restoration
and alteration, and any commissions incurred on re-letting,
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and the balance of such amounts may be applied toward payment of other
sums due to Lessor hereunder. In the event the Premises are re-let for
Lessee's account, Lessee shall pay to Lessor monthly any deficiency;
however, Lessor shall not be required to pay any excess to Lessee.
Upon termination of this Lease or of Lessee's right to possession,
Lessor has the right to recover from Lessee: (1) The worth of the
unpaid rent that had been earned at the time of such termination; (2)
The worth of the amount of the unpaid rent that would have been earned
after the date of such termination; and (3) Any other amount,
including court, attorney and collection costs, necessary to
compensate Lessor. "The Worth," as used in Section (1) is to be
allowing interest at 18% per year. "The worth" as used for Section (2)
is to be computed by discounting the amount at the discount rate of
the Federal Reserve Bank of San Francisco at the time of termination.
The above remedies of Lessor are cumulative and in addition to any
other remedies now or hereafter allowed by law or elsewhere provided
for in this Lease. Notwithstanding anything to the contrary in this
Section 21, Lessee does not waive any right it may have to require
Lessor to mitigate its damages.
22. REMOVAL OF PROPERTY. Any property of Lessee removed by Lessor in
accordance with Section 21 above may be stored by Lessor or may be
deposited on any area adjacent to the building at the sole risk and expense
of Lessee and without any further responsibility of Lessor, and Lessor may
at its sole discretion without or after removing said property, without
obligation to do so and without notice to Lessee, sell or dispose of the
same at public or private sale for the account of Lessee, in which event
the proceeds therefrom may be applied by Lessor upon any indebtedness due
from Lessee to Lessor. Lessee waives all claims for damages that may be
caused by Lessor re-entering the Premises and removing or disposing of said
property as herein provided.
23. COSTS AND ATTORNEYS' FEES. In the event either party shall commence legal
action to enforce any provision of this Lease, the court shall award to the
prevailing party all reasonable attorneys' fees and all costs incurred in
connection therewith, including fees and costs on appeal. Any action
relating to this Lease shall be brought in the County in which the Premises
are located or, at Lessor's election, in King County, Washington.
24. SUBROGATION WAIVER. Lessor and Lessee each herewith and hereby release and
relieve the other and waive its entire right of recovery against the other
for loss or damage arising out of or incident to the perils of fire,
explosion or any other perils described in the "all risk" insurance
endorsement approved for use in the state in which the Premises are
situated which occurs in, on or about the Premises, whether due to the
negligence of either party, their agents, employees or otherwise Each
party shall obtain from its respective insurer under each insurance policy
that it maintains a waiver of all rights of subrogation which the insurer
may have against the other party for claims that are released under this
Section 24.
25. HOLDING OVER. If Lessee, with the express consent of Lessor, shall hold
over after the expiration of the term of this Lease, Lessee shall remain
bound by all the covenants and agreements herein, except that (a) the
tenancy shall be from month-to-month and (b) unless otherwise agreed, the
monthly rent to be paid by Lessee shall be determined by multiplying the
monthly rent in effect immediately preceding such expiration times 150%.
If Lessee holds possession of the Demised Premises after the expiration of
the Lease without the express written consent of Lessor, Lessee shall
remain bound by all the covenants and agreements herein, except that (a)
the tenancy shall be from month-to-month and (b) the monthly rent to be
paid by Lessee shall be determined by multiplying the monthly rent in
effect immediately preceding such expiration times 200%. Any such tenancy
may be terminated as provided by Washington State law.
26. SUBORDINATION AND ATTORNMENT; MORTGAGE PROTECTION
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A. SUBORDINATION-NOTICE TO MORTGAGEE. At the request of Lessor, Lessee
shall promptly execute, acknowledge and deliver, all instruments which
may be required to subordinate this Lease to any existing or future
mortgages, deeds of trust and/or other security documents on or
encumbering the Premises or on the leasehold interest held by Lessor,
and to any extensions, renewals, or replacements thereof, provided
that the mortgagee or beneficiary, as the case may be, shall agree to
recognize this Lease in the event of foreclosure if Lessee is not in
material default at such time.
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B. LESSEE'S CERTIFICATE. Lessee shall at any time and from time to time
upon not less than two (2) weeks prior written notice from Lessor
execute, acknowledge and deliver to Lessor a statement in writing (a)
certifying that this Lease is unmodified and in full force and effect
(or, if modified, stating the nature of such modification 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 (b) acknowledging that there are not, to
Lessee's knowledge, any uncured defaults on the part of the Lessor or
Lessee hereunder, or specifying such defaults if any are claimed; and
(c) setting forth the date of commencement of rents and expiration of
the Lease Term hereof. Any such statement may be relied upon by any
prospective purchaser on encumbrancer of all or any portion of the
Premises of which the Premises are a part.
C. MORTGAGEE PROTECTION CLAUSE. Lessee agrees to notify any mortgagee
and/or trust deed holders, by registered mail, with a copy of any
notice of default served upon the Lessor, provided that prior to such
notice Lessee has been notified in writing (by way of Notice of
Assignment of Rents and Lease, or otherwise) of the addresses of such
mortgagees and/or trust deed holders. Lessee further agrees that if
Lessor shall have failed to cure such default, then the mortgagees
and/or trust deed holders have thirty (30) days within which to cure
such default or if such default cannot be cured within that time, then
such additional times as may be necessary if within such thirty (30)
days any mortgagee and/or trust deed holder has commenced and is
diligently pursuing the remedies necessary to cure such default
(including but not limited to commencement of foreclosure proceedings
if necessary to affect such cure), in which event this Lease shall not
be terminated if such remedies are being so diligently pursued.
27. SURRENDER OF POSSESSION. Lessee shall, prior to the termination of this
Lease or of Lessee's right to possession, remove from the Premises all
personal property which Lessee is entitled to remove and those alterations,
additions, improvements or signs which may be required by Lessor to be
removed, pursuant to Sections 13 and 15 above, and shall repair or pay for
all damage to the Premises caused by such removal. All such property
remaining and every interest of Lessee in the same shall be conclusively
presumed to have been conveyed by Lessee to Lessor under this Lease as a
▇▇▇▇ of sale, without compensation, allowance, or credit to Lessee. Lessee
shall upon termination of this Lease or of Lessee's right of possession,
deliver all keys to Lessor and peacefully quit and surrender the Premises
without notice, neat and clean, and in as good condition as when Lessee
took possession, except for reasonable wear and tear as determined by
Lessor and except for damage by casualty or condemnation.
28. LATE PAYMENT AND INTEREST. If any amount due from Lessee is not received
in the office of Lessor on or before the tenth (10th) day following the
date upon which such amount is due and payable, a late charge of five
percent (5%) of said amount shall become immediately due and payable, which
late charge Lessor and Lessee agree represents a fair and reasonable
estimate of the processing and accounting costs that Lessor will incur by
reason of such late payment. All past due amounts owing to Lessor under
this Lease, including rent, shall be assessed interest at an annual
percentage rate of eighteen percent (18%) from the date due or date of
invoice, whichever is earlier, until paid.
29. NOTICE. Any notice required to be given by either party to the other
pursuant to the provisions of this Lease or any law, present or future,
shall be in writing, and shall be deemed to have been duly given or sent if
either delivered personally or by facsimile copy or deposited in the United
States Mail, postage prepaid, registered or certified, return receipt
requested, addressed to the Lessor at the address specified for the payment
of rent under paragraph 3 of this Lease or to Lessee at the Premises or to
such other address as either party may designate to the other in writing
from time to time:
30. NO WAIVER OR COVENANTS. Time is of the essence of this Lease. Any waiver
by either party of any breach hereof by the other shall not be considered a
waiver of any future similar or other breach.
31. ENTIRE AGREEMENT. It is expressly understood and agreed by Lessor and
Lessee that there are no promises, agreements, conditions, understandings,
inducements, warranties, or representations, oral or
8
written, express or implied, between them, other than as herein set forth
and that this Lease shall not be modified in any manner except by an
instrument in writing executed by the parties.
32. BINDING ON HEIRS, SUCCESSORS AND ASSIGNS. The covenants and agreements of
this Lease shall be binding upon the heirs, executors, administrators,
successors and assigns of both parties hereto, except as hereinabove
provided.
33. LESSOR'S ASSIGNMENT. It is fully understood that Lessor shall have the
full right to assign this Lease, without any notice to Lessee, thereby
relieving Lessor from all and any liabilities; provided however, that the
assignee assumes all Lessor's responsibilities as set forth in this Lease.
34. OPTION TO EXTEND. Lessor hereby grants to Lessee two successive options to
extend this Lease for additional terms of five (5) years each commencing
on the first day after the Expiration Date of the previous term. Lessee
must exercise the option to extend, if at all, by giving Lessor written
notice of such exercise not less than seven (7) months prior to the
expiration date of the then current term. Upon the exercise of the option
to extend, the term of this Lease shall be extended through the expiration
date of the Renewal Term on the same terms and conditions as contained
herein, except that there shall be no option to extend the term of this
Lease beyond the Second Renewal Term, and the Base Monthly Rent during the
Renewal Terms shall be determined pursuant to this Section.
Base Monthly Rent for each Renewal Term shall be the greater of (a) the
Base Monthly Rent scheduled for the final month of the preceding term (the
initial term or the First Renewal Term, as the case may be), or (b) the
fair market base rental value of the Premises.
Lessor and Lessee agree to be reasonable in their negotiation of rent for
the option periods. Lessor and Lessee shall have thirty (30) days after
Lessee provides Lessor of its notice to exercise its Option to Renew to set
the rent for the option period(s). If Lessor and Lessee are unable to
establish the rent for the option period(s) within the thirty (30) day
period then Lessor and Lessee shall each appoint an appraiser with not less
than ten (10) years experience in real estate appraisal in the Bellevue
real estate market, to set the rent for the option period(s). If the rents
proposed by each appraiser are within ten (10%) percent of each other, then
the rent for the option period(s) shall be the average of the two rents.
If the rents proposed by each appraiser are greater than ten (10%) percent
from each other then the two appraisers will select a third appraiser who
shall also have at least (10) years real estate appraisal experience in the
Bellevue real estate market, to set the rent for the option period(s). The
rent established by the third appraiser will be binding on Lessor and
Lessee and will be no less than the rent proposed by Lessee and no higher
than the rent proposed by Lessor. The total cost of all of the appraiser's
fees will be the responsibility of the party whose proposed rental rate is
farthest from that of the final rental rate established by the appraisers.
35. RIGHT OF FIRST OPPORTUNITY TO LEASE: At any time during the term of this
Lease, and provided that Lessee is not in default of any provisions of this
Lease, and further subject to the specific rights of existing tenants
including the Lessee within such space, if any space within the Building
in which the Premises is located is available for lease or if the Lessor
becomes aware that any such space is to become available, Lessor will
provide Lessee with notice of such availability (the "First Opportunity
Notice"). The First Opportunity Notice will contain the following
Information:
1. The description of the specific space within the Building
2. The date on which the space will become available
3. The rental rate which Lessor is willing to accept for such
space
Within one week following receipt of the First Opportunity Notice, Lessee
will notify Lessor if it chooses to exercise it's right to lease the space
identified in the notice on the terms specified. If Lessee either waives
its right or fails to notify Lessor within one week then Lessor will be
free to lease such space to any third party.
9
Notwithstanding the foregoing, if the First Opportunity Notice is given to
Lessee more than ten(10) months prior to the date on which such space will
become available, Lessee will have sixty (60) days to respond to such
notice rather than the one week period specified above.
If Lessee exercises its right to lease the identified space, the lease term
for the additional space will expire on the later to occur of: (i) the
termination date of this Lease, or (ii) three (3) years following the
commencement date of the Lease for such additional space.
36. FIRST OPPORTUNITY TO PURCHASE:
-----------------------------
36.1 GRANT OF RIGHTS. Except as expressly provided in Section 36.3 below,
in the event Lessor intends to sell or to make the Building in which the
Premises are located available for purchase to third parties, Lessor shall
give Lessee written notice of this intention and of the intended offering
sale price of the Premises (the "Price Notice"). In the event Lessee
desires to purchase the Premises at the offering sale price indicated by
Lessor, Lessee shall give to Lessor a written notice of such desire (the
"Interest Notice") within seven days of receipt of the Price Notice. If no
Interest Notice is timely given by Lessee, Lessee shall have no further
rights under this Section 36 unless Lessor decides to offer the Building
for sale at a price lower than ninety-five percent (95%) of the price set
forth in the Price Notice, in which case a new Price Notice shall be given
to Lessee and seven (7) days afforded to Lessee to give an Interest Notice
stating Lessee's desire to purchase the Premises at the new price. In the
event an Interest Notice is timely given by Lessee, then Lessor and Lessee
shall negotiate during the remainder of the 30 day period following the
giving of Lessor's Price Notice in a good faith attempt to execute a
definitive purchase and sales agreement whereby Lessor would sell to Lessee
and Lessee would purchase from Lessor the Premises at the price stated in
the Price Notice. However, neither party shall have any obligation to
execute a purchase and sale agreement not acceptable to such party, in its
sole and absolute discretion. In the event the parties fail to execute a
mutually agreeable purchase and sale agreement within the 30 day period
allowed, or in the event such a purchase and sale agreement is executed but
is subsequently terminated without consummation of the sale, Lessee shall
have no further rights under this Section 36. In no event shall Lessee have
the right to assert any right to purchase the Building once Lessor has
executed a contract for the sale of the Premises to a third party as
otherwise permitted under this Section 36, even if the price under such
contract, as the same may be amended, is less than the price stated in the
applicable Price Notice or the price at which Lessor would otherwise have
an obligation to give to Lessee a new Price Notice. It is expressly agreed
that any price set forth in a Price Notice given to Lessee, and any
transaction whereby the Building is sold to Lessee, will be on the basis
that Lessor shall pay no real estate commission on account of such sale to
any broker representing Lessee. It is further acknowledged that Lessor may
offer the Premises to third parties at a price equal to or greater than the
price set forth in the price Notice, or at any price greater than ninety-
five (95%) of the price set for in the Price Notice, subject to Lessee's
rights set forth in this Section 36.
36.2 LIMITATION OF RIGHTS. Except for any second Price Notice under
Section 36.1, (a) the notification and negotiation rights allowed to Lessee
pursuant to Section 36.1 are allowed on a "one time" basis only, and (b)
Lessor shall have no obligation to re-notify Lessee of any changes in its
sales intentions or offering price, nor to re-notify Lessee of subsequent
sales efforts if Lessor does not sell the Building following the first
Price Notice.
36.3 EXCLUSIONS. The rights of Lessee under this Section 36 are limited to
notification and negotiation in anticipation of Lessor offering the
Building to purchase by unrelated third parties. There shall be no
notification or negotiation rights of Lessee in any other case whatsoever,
including but not limited to cases of (a) a conveyance by Lessor to an
affiliated party and any conveyance in connection with a merger or other
corporate transaction, (b) a conveyance by Lessor to a lender who then
holds a lien on the Premises, (c) a conveyance in connection with a
foreclosure sale, (d) a conveyance or taking in connection with a
condemnation, (e) a conveyance which is part of a financing transaction
(for example, a sale and master lease back), (f) a conveyance by any
subsequent owner of the Building other than the Lessor originally named
herein, or (g) a sale or offering in which Lessor packages the Building
with one or more other properties owned by Lessor and/or any affiliate of
Lessor for sale as a group, on the open market or
10
otherwise. No conveyance of any or all of the ownership interests within
Lessor (for example, membership interests in limited liability company)
shall be deemed a conveyance or sale of the Premises.
36.4 PERSONAL NATURE OF RIGHTS. Upon any assignment of this Lease or of
any sublease of all or a part of the Premises, (except any assignment or
sublease described in Paragraph 2 of Rider Two described below) the rights
granted to Lessee pursuant to Section 36.1 shall terminate. The rights
granted to Lessee pursuant to Section 36.1 shall also terminate upon the
termination of this Lease or of Tenant's right of possession.
37. ENVIRONMENTAL. See Rider One attached and incorporated into this Lease by
this reference.
38. OTHER. See Rider Two attached and incorporated into this Lease by this
reference.
LESSOR: LESSEE:
Benaroya Capital Company, L.L.C.
/S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /S/ ▇▇▇▇ ▇▇▇▇▇▇
------------------------ -----------------------
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its: Manager Its: Executive Vice President,
Operations
Date: May 20, 1997 Date: May 20, 1997
--------------------- ----------------------
11
STATE OF WASHINGTON ]
] ss.
COUNTY OF KING ]
I certify that I know or have satisfactory evidence that ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
is the person who appeared before me, a Notary Public in and for the State of
Washington duly commissioned and sworn, and acknowledged that he is the Manager
of Benaroya Capital Company, L.L.C., a Washington limited liability corporation,
who executed the within and foregoing instrument, and acknowledged the
instrument to be the free and voluntary act and deed of said company for the
uses and purposes therein mentioned, and on oath stated that affiant is
authorized to execute said instrument on behalf of said company.
IN WITNESS WHEREOF I have hereunto set my hand and affixed my official seal the
day and year first above written.
/S/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------------
Notary Public in and for the
State of Washington
------------------------------------
residing at Bothell
---------------------------------
Commission expires 11/04/99
--------------------------
Print Name ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
STATE OF WASHINGTON ]
] ss.
COUNTY OF Snohomish ]
-----------
I certify that I know or have satisfactory evidence that ▇▇▇▇ ▇▇▇▇▇▇ is
the person who appeared before me, a Notary Public in and for the State of
Washington duly commissioned and sworn, and acknowledged that he/she is the
Executive Vice President/Operations of ICOS Corporation, a __________________,
who executed the within and foregoing instrument, and acknowledged the
instrument to be the free and voluntary act and deed of said corporation for the
uses and purposes therein mentioned, and on oath stated that affiant is
authorized to execute said instrument on behalf of said corporation.
IN WITNESS WHEREOF I have hereunto set my hand and affixed my official seal the
day and year first above written.
/S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Notary Public in and for the
State of Washington
------------------------------------
residing at Bothell
---------------------------------
Commission expires 10/19/00
--------------------------
Print Name ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
12
RIDER ONE
EMISSIONS; STORAGE, USE AND DISPOSAL OF WASTE
a. EMISSIONS. Lessee shall not (i) discharge, emit or permit to be
discharged or emitted, any liquid, solid or gaseous matter, or any combination
thereof, into the atmosphere, the ground or any body of water, which does or may
pollute or contaminate the same, or does or may adversely affect the health or
safety of persons, or the use or enjoyment of the Premises; nor (ii) transmit,
receive or permit to be transmitted or received, any electromagnetic, microwave
or other radiation in, on or about the Premises.
b. STORAGE. If, with or without violation of this Lease, Lessee possesses
at the Premises any matter described in Section A above or any Hazardous
Substances (as defined below), Lessee shall store the same in appropriate leak
proof containers and/or areas which comply with all laws and all prudent
practices.
c. DISPOSAL OF WASTE. Lessee shall not keep any trash, garbage, waste or
other refuse on the Premises except in sanitary containers and shall regularly
and frequently remove same from the Premises. Lessee shall keep all such
containers in a clean and sanitary condition. Lessee shall properly dispose of
all sanitary sewage and shall not use the sewage system for the disposal of
anything except sanitary sewage, nor in excess of capacity. Lessee shall not
cause any obstruction in the sewage disposal system.
d. COMPLIANCE OF LAW. Notwithstanding any other provision in the Lease to
the contrary, Lessee shall comply with all Laws in complying with its
obligations under this Lease, and in particular, Laws relating to the storage,
use and disposal of Hazardous Substances (as defined below).
e. INDEMNIFICATION FOR BREACH. Lessee shall defend, indemnify and hold
Lessor, the Project and the holder of a trust deed or mortgage on the Project
harmless from any loss, claim, liability or expense, including, without
limitation, attorneys fees and costs, at trial and/or on appeal and review,
arising out of or in connection with its failure to observe or comply with the
provisions of this Rider. This indemnity shall survive the expiration or
earlier termination of the term of the Lease or the termination of Lessee's
right of possession and be fully enforceable thereafter.
f. INDEMNIFICATION REGARDING HAZARDOUS SUBSTANCES. In addition to the
indemnity obligations contained elsewhere herein, Lessee shall indemnify, defend
and hold harmless Lessor, the Premises, the Project, and the holder of a trust
deed or mortgage on the Project, from and against all claims, losses, damages,
monitoring costs, response costs, liabilities, and other costs expenses caused
by, arising out of, or in connection with, the generation, release, handling,
storage, discharge, transportation, deposit or disposal in, on, under or about
the Premises by Lessee or any of Lessee's agents of the following (collectively
referred to as "Hazardous Substances"): hazardous materials, hazardous
substances, toxic wastes, toxic substances, pollutants, petroleum products,
underground tanks, oils, pollution, asbestos, PCB's, radioactive materials, or
contaminants, as those terms are commonly used or as defined by federal, state,
and/or local law or regulation related to protection of health or the
environment as any of same may be amended from time to time, and/or by any rules
and regulations promulgated thereunder. Such damages, costs, liability and
expenses shall include such as are claimed by any regulating and/or
administering agency, any ground lessor or master lessor of the Project, the
holder of any Mortgage or Deed of Trust on the Project, and/or any successor of
the Lessor named herein. This indemnity shall include (i) claims of third
parties, including governmental agencies, for damages, fines, penalties,
response costs, monitoring costs, injunctive or other relief; (ii) the costs,
expenses or losses resulting from any injunctive relief, including preliminary
or temporary injunctive relief; (iii) the expenses, including fees of attorneys
and experts, of report the existence of Hazardous Substances to an agency of the
State of which the Premises is located or of the United States as required by
applicable laws and regulations; and (iv) any and all expenses or obligations,
including attorney's fees, incurred at, before and after any administrational
proceeding, trial, appeal and review. This indemnity shall survive the
expiration or earlier termination of the term of the Lease or the termination of
Lessee's right of possession and shall remain fully enforceable thereafter.
13
g. INFORMATION. Lessee shall give prior written notice to Lessor of any
use, whether incidental or otherwise, of Hazardous Substances on the Premises,
and shall immediately deliver to Lessor a copy of any notice of any violation of
any Law with respect to such use. Lessee shall also provide to Lessor, upon
request, with any and all information regarding Hazardous Substances in the
Premises, including contemporaneous copies of all filings and reports to
governmental entities, and any other information requested by Lessor. In the
event of any accident, spill or other incident involving Hazardous Substances,
Lessee shall immediately report the same to Lessor and supply Lessor with all
information and reports with respect to the same. All information described
herein shall be provided to Lessor regardless of any claim by Lessee that it is
confidential or privileged.
14
RULES AND REGULATIONS
1. Except as specifically provided in the Lease to which these Rules and
Regulations are attached, no sign, placard, picture, advertisement, name or
notice shall be installed or displayed on any part of the outside or inside of
the Building or Project without the prior written consent of Lessor. Lessor
shall have the right to remove, at Lessee's expense and without notice, any sign
installed or displayed in violation of this rule. All approved signs or
lettering on doors and walls shall be printed, painted, affixed or inscribed at
the expense of Lessee by a person approved by Lessor.
2. If Lessor objects in writing to any curtains, blinds, shades, screens
or hanging plants or other similar objects attached to or used in connection
with any window or door of the Premises, or placed on any windowsill, which is
visible from the exterior of the Premises, Lessee shall immediately discontinue
such use. Lessee shall not place anything against or near glass partitions or
doors or windows which may appear unsightly from outside the Premises.
3. Lessee shall not obstruct any sidewalks, halls, passages, exits,
entrances, elevators or stairways of the Project. The halls, passages, exits,
entrances, elevators and stairways are not open to the general public, but are
open, subject to reasonable regulations, to Lessee's business invitees. Lessor
shall in all cases retain the right to control and prevent access thereto of all
persons whose presence in the judgment of Lessor would be prejudicial to the
safety, character, reputation and interest of the Project and its Lessees;
provided that nothing herein contained shall be construed to prevent such access
to personnel with whom any Lessee normally deals in the ordinary course of its
business, unless such persons are engaged in illegal or unlawful activities. No
Lessee and no employee or invitee of any Lessee shall go upon the roof(s) of the
Project.
4. Lessor will furnish Lessee, free of charge, with two keys to each door
lock in the Premises. Lessor may make a reasonable charge for any additional
keys. Lessee shall not make or have made additional keys, and Lessee shall not
alter any lock or install a new additional lock or bolt on any door of its
Premises. Lessee, upon the termination of its tenancy, shall deliver to Lessor
the keys of all doors which have been furnished to Lessee, and in the event of
loss of any keys so furnished, shall pay Lessor therefor.
5. If Lessee requires telegraphic, telephonic, burglar alarm or similar
services, it shall first obtain, and comply with, Lessor's instructions in their
installation.
6. No equipment, materials, furniture, packages, supplies, merchandise or
other property will be received in the Building or carried in the elevators
except between such hours and in such elevators as may be designated by Lessor.
Lessee's initial move in and subsequent deliveries of bulky items, such as
furniture, safes and similar items shall, unless otherwise agreed in writing by
Lessor, be made during the hours of 6:00 p.m. to 6:00 a.m. or on Saturday or
Sunday. Deliveries during normal office hours shall be limited to normal office
supplies and other small items. No deliveries shall be made which impede or
interfere with other Lessees or the operation of the Building.
7. Lessee shall not place a load upon any floor of the Premises which
exceeds the load per square foot which such floor was designed to carry and
which is allowed by Law. Lessor shall have the right to prescribe the weight,
size and position of all equipment, materials, furniture or other property
brought into the Building. Heavy objects shall, if considered necessary by
Lessor, stand on such platforms as determined by Lessor to be necessary to
properly distribute the weight, which platforms shall be provided at Lessee's
expense. Business machines and mechanical equipment belonging to Lessee which
cause noise or vibration that may be transmitted to the structure of the
Building or to any space therein shall be placed and maintained by Lessee, at
Lessee's expense, on vibration eliminators, or other devices sufficient to
eliminate noise or vibration. The persons employed to move such equipment in or
out of the Building must be acceptable to Lessor. Lessor will not be
responsible for loss of, or damage to, any such equipment or other property from
any cause, and all damage done to the building by maintaining or moving such
equipment or other property shall be repaired at the expense of Lessee.
15
8. Lessee shall not use or keep in the Premises any kerosene, gasoline or
inflammable or combustible fluid or material other than those limited quantities
necessary for the operation or maintenance of office equipment. Lessee shall
not use or permit to be used in the Premises any foul or noxious gas or
substance, or permit or allow the Premises to be occupied or used in manner
offensive or objectionable to Lessor or other occupants of the building by
reason of noise, odors or vibrations, nor shall Lessee bring into or keep in or
about the Premises any birds or animals.
9. Lessee shall not use any method of heating or air conditioning other
than that supplied by Lessor.
10. Lessee shall not waste electricity, water or air conditioning and
agrees to cooperate fully with Lessor to assure the most effective operation of
the Building's heating and air conditioning and to comply with any governmental
energy-saving rules, laws or regulations of which Lessee has actual notice, and
shall refrain from attempting to adjust controls. Lessee shall keep corridor
doors closed, and shall close window coverings at the end of each business day.
11. Lessor reserves the right, exercisable without notice and without
liability to Lessee, to change the name and street address of the Building.
12. Lessor reserves the right to exclude from the Building between the
hours of 6 p.m. and 7 a.m. the following day, or such other hours as may be
established from time to time by Lessor, and on Sundays and legal holidays, any
person unless that person is known to the person or employee in charge of the
Building and has a pass or is properly identified. Lessee shall be responsible
for all persons for whom it requests passes and shall be liable to Lessor for
all acts of such persons. Lessor shall not be liable for damages for any error
with regard to the admission to or exclusion from the Building of any person.
Lessor reserves the right to prevent access to the Building in case of invasion,
mob, riot, public excitement or other commotion by closing the doors or by other
appropriate action.
13. Lessee shall entirely shut off any water faucets or other water
apparatus, and electricity, gas or air outlets before Lessee and its employees
leave the Premises. Lessee shall be responsible for any damage or injuries
sustained by other Lessees or occupants of the Building or by Lessor for
noncompliance with this rule.
14. The toilet rooms, toilets, urinals, wash bowls and other apparatus
shall not be used for any purpose other than that for which they were
constructed and no foreign substance of any kind whatsoever shall be thrown
therein. The expense of any breakage, stoppage or damage resulting form the
violation of this rule shall be borne by the Lessee who, or whose employees or
invitees, shall have caused it.
15. Lessee shall not sell, or permit the sale at retail of newspapers,
magazines, periodicals, theater tickets or any other goods or merchandise to the
general public in or on the Premises. Lessee shall not make any room-to-room
solicitation of business from other Lessees in the Project. Lessee shall not
use the Premises for any business or activity other than that specifically
provided for in Lessee's Lease. Canvassing, soliciting and distribution of
handbills or any other written material, and peddling in the Project are
prohibited, and Lessee shall cooperate to prevent such activities.
16. Lessee shall not install any radio or television antenna, loudspeaker
or other devices on the roof(s) or exterior walls of the Building or Project.
Lessee shall not interfere with radio or television broadcasting or reception
from or in the Project or elsewhere.
17. Lessee shall not ▇▇▇▇, drive nails, screw or drill into the
partitions, woodwork or plaster or in any way deface the Premises or any part
thereof, except in accordance with the provisions of the Lease pertaining to
alterations. Lessor reserves the right to direct electricians as to where and
how telephone and telegraph wires are to be introduced to the Premises. Lessee
shall not cut or bore holes for wires. Lessee shall not affix any floor
covering to the floor of the Premises in any manner except as approved by
Lessor. Lessee shall repair any damage resulting from noncompliance with this
rule.
18. Lessee shall not install, maintain or operate upon the Premises any
vending machines without the written consent of Lessor.
16
19. Lessor reserves the right to exclude or expel from the Project any
person who, in Lessors' judgment, is intoxicated or under the influence of
liquor or drugs or who is in violation of any of the Rules and Regulations of
the Building.
20. Lessee shall store all its trash and garbage within its Premises or in
other facilities provided by Lessor. Lessee shall not place in any trash box or
receptacle any material which cannot be disposed of in the ordinary and
customary manner of trash and garbage disposal. All garbage and refuse disposal
shall be made in accordance with directions issued from time to time by Lessor.
21. The Premises shall not be used for the storage of merchandise held for
sale to the general public, or for lodging or for manufacturing of any kind, nor
shall the Premises be used for any improper, immoral or objectionable purpose.
No cooking shall be done or permitted on the Premises without Lessor's consent,
except that used by Lessee of Underwriters' Laboratory approved equipment for
brewing coffee, tea, hot chocolate and similar beverages or use of microwave
ovens for employee use shall be permitted, provided that such equipment and use
is in accordance with all applicable Laws.
22. Lessee shall not use in any space or in the public halls of the
Project any hand truck except those equipped with rubber ties and side guards or
such other material-handling equipment as Lessor may approve. Lessee shall not
bring any other vehicles of any kind into the Building or Project.
23. Lessee shall comply with all safety, fire protection and evacuation
procedures and regulations established by Lessor or any governmental agency.
24. Lessee assumes any and all responsibility for protecting its Premises
from theft, robbery and pilferage, which includes keeping doors locked and other
means of entry to the Premises closed.
25. Lessee's requirements will be attended to only upon appropriate
application to the Project management office by an authorized individual.
Employees of Lessor shall not perform any work or do anything outside of their
regular duties unless under special instructions from Lessor.
26. Lessor may waive any one or more of these Rules and Regulations for
the benefit of Lessee or any other Lessee, but no such waiver by Lessor shall be
construed as a waiver of such Rules and Regulations in favor of Lessee or any
other Lessee, nor prevent Lessor from thereafter enforcing any such Rules and
Regulations against any or all of the Lessees of the Project.
27. These Rules and Regulations are in addition to, and shall not be
construed to in any way modify or amend, in whole or in part, the terms,
covenants, agreements and conditions of the Lease.
28. Lessor reserves the right to make such other and reasonable Rules and
Regulations as, in its judgment, may from time to time be needed for safety and
security, for care and cleanliness of the Project and for the preservation of
good order therein. Lessee agrees to abide by all such Rules and Regulations
hereinabove stated and any additional rules and regulations which are adopted.
29. Lessee shall be responsible for the observance of all of the foregoing
rules by Lessee's employees, agents, clients, customers, invitees and guests.
30. Lessee shall comply with the "No Smoking" policy in all interior areas
of the building.
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EXHIBIT A
PREMISES
(PLEASE SEE ATTACHED)
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EXHIBIT B
LEGAL DESCRIPTION
TRACT 11D OF THAT CERTAIN SURVEY IN THE WEST HALF OF SECTION 29, TOWNSHIP 27
NORTH, RANGE 5 EAST, ▇.▇., RECORDED DECEMBER 3, 1995, IN VOLUME 1 OF BINDING
SITE PLANS, PAGES 49 AND 50, UNDER AUDITOR'S FILE NO. ▇▇▇▇▇▇▇▇▇▇.
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RIDER TWO
1. ADDITIONAL PROVISIONS CONCERNING OPERATING EXPENSES
Notwithstanding anything to the contrary contained in the Lease, the
following items shall be excluded (or, as applicable, deducted) from the
calculation of Lessee's share (if any) of operating costs and expenses of the
Building and/or Project:
(a) The cost of repairs or other work occasioned by fire, windstorm or
other casualty or loss in excess of the insurance proceeds therefor (or, if
greater, the proceeds that would have been available had Lessor maintained the
insurance required to be maintained by Lessor pursuant to this Lease), or by the
exercise of eminent domain;
(b) Deductibles under Lessor's insurance policies in excess of $50,000.00;
(c) Costs resulting from the correction of any latent construction defects
in all or any portion of the Building or Project, or any condition with regard
to the structure and the common areas that is, as of the date of this Lease, not
in compliance with applicable laws, codes, rules or regulations;
(d) Rental concessions or lease buyouts;
(e) The costs of renovating or otherwise improving or decorating, painting
or redecorating space (exclusive of common areas) for any lessees or other
occupants of the Building or Project, including, without limitation, Lessee;
(f) Depreciation;
(g) Payments of principal, interest or other payments of any kind on any
deeds to secure debt, mortgages, ground or underlying leases, or other
hypothecations for security of all or any part of the Building or Project by
Lessor;
(h) Rents payable in connection with any ground or underlying lease of all
or any portion of the Building or Project;
(i) Lessor's general overhead and any other expense not directly related to
the Building or Project (other than the management fee referred to in paragraph
9 (c) above);
(j) All items, services and/or goods for which Lessee or any other lessee,
occupant, person or other party is obligated to reimburse Lessor or to pay third
parties;
(k) Advertising and promotional expenses with respect to leasing space in
or selling the Building or Project;
(l) Brokerage, legal and professional fees expended by Lessor in connection
with negotiating and entering into any leases and any related instruments
(including, without limitation, guaranties, surrender agreements, leasing
amendments and consents to assignment or subletting) with any lessee or other
occupant of any portion of the Building or Project, and the enforcement of any
such instruments; or which are expended or incurred by Lessor in connection with
the negotiation and entering of sale, ground lease, financing, partnership or
similar transactions pertaining to the Building, Project, or any portion
thereof, and/or to Lessor or an interest in Lessor, including without
limitation, promissory notes, security deeds, mortgages, ground or master
leases, purchase and sale agreements, options, and any and all similar and/or
related documents, instruments and agreements;
(m) Estate, inheritance, gift, franchise and income taxes of Lessor;
(n) Wages, salaries and other compensation paid to employees of the Lessor
at the Building or Project who are at or above the level of Building Manager;
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(o) All items that would be capitalized under generally accepted accounting
principles as of the date hereof except as expressly provided in Section 9 of
this Lease;
(p) The cost of defending against claims in regard to the existence or
release of hazardous substances or materials at the Building or Project and
costs of any cleanup of any such hazardous substances or materials (except with
respect to those costs for which Lessee is otherwise responsible pursuant to the
express Terms of this Lease);
(q) Costs and expenses incurred in connection with compliance with or the
contesting or settlement of any claimed violation of law or requirements of law;
(r) Interest, penalties or damages incurred by Lessor for late payment of
taxes or assessments or under any agreement to which Lessor is a party by reason
of the breach or default of Lessor:
(s) Expenses incurred in connection with relocating lessees in the Building
or Project;
(t) Amounts received by Lessor through proceeds of insurance to the extent
the proceeds are compensation for expenses which were previously included in
Building operating costs charged to lessees;
(u) Costs related to public transportation, transit or van pools, unless
required by an appropriate government or quasigovernment authority or as a
result of the activities of Lessee; and
(v) All other items for which Lessee or any other lessee, occupant or other
party compensates Lessor, so that no duplication of payments by Lessee or to
Lessor shall occur.
2. ASSIGNMENT AND SUBLETTING BY LESSEE
Lessor hereby consents to an assignment of this Lease or a subletting of
all or part of the Premises to (a) a parent of Lessee, the parent of such
parent, or a wholly owned subsidiary of Lessee, of such parent, or of the parent
of such parent and (b) any entity to whom Lessee sells all or substantially of
its assets provided that any such entity expressly assumes all Lessee's
obligations hereunder.
3. HAZARDOUS SUBSTANCES
To the best of Lessor's knowledge, after reasonable inquiry, there are no
hazardous wastes or substances in the soil or groundwater of the real property
on which the building is located and Lessor has not disposed of or approved any
disposal by any other party of any hazardous wastes or substance son or from the
Building.
4. NOTICE
Any notice required to be given to Lessee shall be sent via facsimile,
overnight express mail or U.S. mail, postage prepaid, addressed as follows:
ICOS Corporation
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Facilities Manager
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Notices shall be effective upon receipt.
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