Washington-Seattle-1111 Third Avenue Lease - Wright Runstad Properties LP and Progressive Networks Inc.
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MIDCOM TOWER
AT
1111 THIRD AVENUE
LEASE AGREEMENT
BETWEEN
WRIGHT RUNSTAD PROPERTIES L. P.
LANDLORD
AND
PROGRESSIVE NETWORKS, INC.
TENANT
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TABLE OF CONTENTS
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1. LEASE DATA AND EXHIBITS................................................1
(A) BUILDING...............................................................1
(B) PREMISES...............................................................1
(C) TENANT'S PRO RATA SHARE:...............................................1
(D) BASIC PLANS DELIVERY DATE:.............................................1
(E) FINAL PLANS DELIVERY DATE:.............................................1
(F) COMMENCEMENT DATE:.....................................................1
(G) EXPIRATION DATE:.......................................................1
(H) RENT:..................................................................1
(I) SECURITY DEPOSIT:......................................................1
(J) BASE YEAR:.............................................................2
(K) TENANT'S LEASING BROKER/AGENT:.........................................2
(L) PARKING:...............................................................2
(M) NOTICE ADDRESSES:......................................................2
(N) PAYMENT ADDRESS:.......................................................2
(O) EXHIBITS:..............................................................2
2. PREMISES:..............................................................2
3. COMMENCEMENT AND EXPIRATION DATES:.....................................2
(A) COMMENCEMENT DATE:.....................................................2
(B) DELAYS:................................................................3
(C) CONFIRMATION OF COMMENCEMENT DATE:.....................................3
(D) EXPIRATION DATE:.......................................................3
4. ACCEPTANCE OF PREMISES:................................................3
5. RENT AND ADDITIONAL RENT:..............................................3
6. SECURITY DEPOSIT:......................................................3
7. PARKING:...............................................................4
8. USES:..................................................................4
9. SERVICES AND UTILITIES:................................................4
(A) STANDARD SERVICES:.....................................................4
(B) NORMAL BUSINESS HOURS:.................................................5
(C) INTERRUPTION OF SERVICES:..............................................5
(D) ADDITIONAL SERVICES:...................................................5
(E) COSTS OF ADDITIONAL SERVICES:..........................................5
10. COSTS OF OPERATIONS AND REAL ESTATE TAXES:.............................6
(A) ADDITIONAL RENT:.......................................................6
(B) DEFINITIONS:...........................................................6
(C) ESTIMATED COSTS:.......................................................6
(D) ACTUAL COSTS:..........................................................7
(E) RECORDS AND ADJUSTMENTS:...............................................7
(F) PERSONAL PROPERTY TAXES:...............................................7
11. CARE OF PREMISES:......................................................7
12. ACCESS:................................................................8
13. DAMAGE OR DESTRUCTION:.................................................8
(A) DAMAGE AND REPAIR:.....................................................8
(B) DESTRUCTION DURING LAST YEAR OF TERM:..................................8
(C) TENANT IMPROVEMENTS:...................................................8
14. WAIVER OF SUBROGATION:.................................................9
15. INDEMNIFICATION:.......................................................9
16. INSURANCE:.............................................................9
(A) LIABILITY INSURANCE:...................................................9
(B) PROPERTY INSURANCE:....................................................9
(C) INSURANCE POLICY REQUIREMENTS:........................................10
(D) CERTIFICATE OF INSURANCE:.............................................10
(E) PRIMARY POLICIES:.....................................................10
17. ASSIGNMENT AND SUBLETTING:............................................10
(A) ASSIGNMENT OR SUBLEASE:...............................................10
(B) LANDLORD RIGHT TO TERMINATE PORTION OF LEASE:.........................10
(C) TENANT TRANSFER OF LEASE:.............................................10
(D) ASSIGNEE OBLIGATIONS:.................................................11
(E) SUBLESSEE OBLIGATIONS:................................................11
18. SIGNS:................................................................11
19. LIENS AND INSOLVENCY:.................................................11
(A) LIENS:................................................................11
(B) INSOLVENCY:...........................................................11
20. DEFAULT:..............................................................11
(A) CUMULATIVE REMEDIES:..................................................12
(B) TENANT'S RIGHT TO CURE:...............................................12
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(C) ABANDONMENT:..........................................................12
(D) LANDLORD'S REENTRY:...................................................12
(E) RELETTING THE PREMISES:...............................................12
(F) TRADE FIXTURES:.......................................................13
21. PRIORITY:.............................................................13
22. SURRENDER OF POSSESSION:..............................................13
23. REMOVAL OF PROPERTY:..................................................13
24. NON-WAIVER:...........................................................14
25. HOLDOVER:.............................................................14
26. CONDEMNATION:.........................................................14
(A) ENTIRE TAKING:........................................................14
(B) CONSTRUCTIVE TAKING OF ENTIRE PREMISES:...............................14
(C) PARTIAL TAKING:.......................................................14
(D) AWARDS AND DAMAGES:...................................................15
27. NOTICES:..............................................................15
28. COSTS AND ATTORNEYS FEES:.............................................15
29. LANDLORD'S LIABILITY:.................................................15
30. ESTOPPEL CERTIFICATES:................................................15
31. TRANSFER OF LANDLORD'S INTEREST:......................................16
32. RIGHT TO PERFORM:.....................................................16
33. QUIET ENJOYMENT:......................................................16
34. CORPORATE AUTHORITY:..................................................16
35. HAZARDOUS MATERIALS:..................................................16
(A) TENANT OBLIGATIONS:...................................................16
(B) LANDLORD OBLIGATIONS:.................................................17
36. TELECOMMUNICATIONS LINES AND EQUIPMENT:...............................17
(A) LOCATION OF TENANT'S EQUIPMENT AND LANDLORD CONSENT:..................17
(B) LANDLORD'S COMMON SPACES:.............................................19
(C) INDEMNIFICATION:......................................................19
(D) LIMITATION OF LIABILITY:..............................................19
(E) ELECTROMAGNETIC FIELDS:...............................................20
37. GENERAL:..............................................................20
(A) HEADINGS:.............................................................20
(B) SUCCESSORS AND ASSIGNS:...............................................20
(C) PAYMENT OF BROKERS:...................................................20
(D) ENTIRE AGREEMENT:.....................................................20
(E) SEVERABILITY:.........................................................20
(F) OVERDUE PAYMENTS:.....................................................20
(G) FORCE MAJEURE:........................................................20
(H) RIGHT TO CHANGE PUBLIC SPACES:........................................21
(I) GOVERNING LAW:........................................................21
(J) BUILDING DIRECTORY:...................................................21
(K) BUILDING NAME:........................................................21
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LEASE AGREEMENT
MIDCOM TOWER AT
1111 THIRD AVENUE
THIS LEASE made this 4TH day of MARCH, 1996, between WRIGHT RUNSTAD PROPERTIES
L. P., a Delaware limited partnership ("Landlord"), and PROGRESSIVE NETWORKS,
INC., a Washington corporation ("Tenant").
As parties hereto, Landlord and Tenant agree:
1. LEASE DATA AND EXHIBITS
The following terms as used herein shall have the meanings provided in this
Section l, unless otherwise specifically modified by provisions of this Lease:
(a) BUILDING
Known as MIDCOM TOWER AT 1111 THIRD AVENUE, or such other name as
Landlord may designate from time to time, situated on a portion of the real
property more particularly described in Section 2 hereof, with an address of
1111 Third Avenue, Seattle, Washington 98101.
(b) PREMISES
Consisting of the area on the FIFTH (5TH) floor of the Building, as
outlined on the floor plan attached hereto as Exhibit A, including tenant
improvements IN "AS IS" CONDITION.
(c) TENANT'S PRO RATA SHARE:
Landlord and Tenant agree that, for purposes of this Lease, the net
rentable area of the Premises is deemed to be AT LEAST 13,000 SQUARE FEET
INITIALLY and Tenant's Pro Rata Share of the Building is deemed to be AT LEAST
2.46% INITIALLY. THE NET RENTABLE AREA OF THE BUILDING IS DEEMED TO BE 528,282
SQUARE FEET. SEE ALSO EXHIBIT C.
"NET RENTABLE SQUARE FEET" AND "RENTABLE AREA" AS USED HEREIN SHALL MEAN
"RENTABLE AREA" AS DEFINED IN BOMA AMERICAN NATIONAL STANDARD Z65.1-1980
(REPRINTED MAY 1981).
(d) BASIC PLANS DELIVERY DATE:
NA
(e) FINAL PLANS DELIVERY DATE:
NA
(f) COMMENCEMENT DATE:
APRIL 1, 1996, OR UPON OCCUPANCY, IF EARLIER.
(g) EXPIRATION DATE:
APRIL 30, 2001, OR SUCH LATER DATE AS MAY BE ESTABLISHED BY TENANT'S
EXERCISE OF ITS OPTION(S) TO EXTEND THE TERM OF THIS LEASE PURSUANT TO SECTION 5
OF EXHIBIT C.
(h) RENT:
SEE EXHIBIT C, ITEM 2.
(i) SECURITY DEPOSIT:
$ NA
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(j) BASE YEAR:
For purposes of this Lease, the Base Year shall be: 1996 FOR THE
INITIAL TERM OF THE LEASE. THE BASE YEAR FOR THE FIRST EXTENDED TERM SHALL
BE THE FIRST YEAR OF THE FIRST EXTENSION OPTION PERIOD, AND THE BASE YEAR
FOR THE SECOND EXTENDED TERM SHALL BE THE FIRST YEAR OF THE SECOND
EXTENSION OPTION PERIOD.
(k) TENANT'S LEASING BROKER/AGENT:
MARTIN SMITH INC.
(l) PARKING:
Tenant shall have the right to purchase ONE (1) permit to park
automobiles in the Building garage PER 1,200 NET RENTABLE SQUARE FEET ON WHICH
TENANT IS PAYING RENT. PARKING SHALL BE on an unassigned self-park (or executive
valet) basis (as designated by Landlord from time to time) at the prevailing
monthly rates established by Landlord from time to time.
(m) NOTICE ADDRESSES:
Landlord: Wright Runstad Properties L. P.
1111 Third Avenue, Suite 2730
Seattle, Washington 98101
Tenant: Progressive Networks, Inc.
1111 Third Avenue, Suite 500
Seattle, Washington 98101
(n) PAYMENT ADDRESS:
Wright Runstad Properties L. P.
P.O. Box 94023
Seattle, Washington 98124-9423
(o) EXHIBITS:
The following exhibits or riders are made a part of this Lease:
Exhibit A - Floor Plan of Premises
Exhibit C - Addendum to Lease
Exhibit D - Subordination Agreement
Exhibit E - Satellite Antenna locations
Exhibit F - Rate Schedule
2. PREMISES:
Landlord does hereby lease to Tenant, and Tenant does hereby lease from
Landlord, upon the terms and conditions herein set forth, the Premises described
in Section l(b) hereof as shown on Exhibit A attached hereto and incorporated
herein, together with rights of ingress and egress over common areas in the
Building located on the land ("Land") more particularly described as:
Lots 2, 3, 6 and 7; Block 14, C.D. Boren's Addition, City of Seattle, King
County, State of Washington.
3. COMMENCEMENT AND EXPIRATION DATES:
(A) COMMENCEMENT DATE:
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THE COMMENCEMENT DATE SHALL BE THE DATE SPECIFIED IN SECTION 1(F).
(B) DELAYS:
[INTENTIONALLY DELETED]
(C) CONFIRMATION OF COMMENCEMENT DATE:
Landlord shall confirm the COMMENCEMENT DATE to Tenant in writing.
(D) EXPIRATION DATE:
This Lease shall expire on the date specified in Section l(g).
4. ACCEPTANCE OF PREMISES:
[INTENTIONALLY DELETED]
5. RENT AND ADDITIONAL RENT:
STARTING MAY 1, 1996, Tenant shall pay Landlord without notice the Rent
stated in Section l(h) hereof and Additional Rent as provided in Section 9 and
Section 10 and any other payments due under this Lease without deduction or
offset in lawful money of the United States in advance on or before the first
day of each month at Landlord's Payment Address set forth in Section 1(n)
hereof, or to such other party or at such other place as Landlord may hereafter
from time to time designate in writing. Rent and Additional Rent for any partial
month at the beginning or end of the Lease term shall be prorated in proportion
to the number of days in such month. All amounts which Tenant assumes or agrees
to pay to Landlord pursuant to this Lease shall be deemed Additional Rent
hereunder and, in the event of nonpayment thereof, Landlord shall have all
remedies provided for in the case of nonpayment of Rent.
6. SECURITY DEPOSIT:
[INTENTIONALLY DELETED]
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7. PARKING:
Use of parking in the Building by Tenant shall be subject to such
reasonable rules and regulations as Landlord or its parking operator, or the
City of Seattle may publish from time to time. Tenant shall provide Landlord
with thirty (30) days prior written notice of the number of parking permits
required by Tenant, up to the maximum number specified in Section 1(l), and of
any changes in those requirements. Short-term hourly parking shall be offered on
a space available basis during Normal Business Hours except Saturdays [as
defined in Section 9(b)], and except Sundays or legal holidays, for Tenant's
clients and customers.
8. USES:
The Premises are to be used only for general office purposes, THE OPERATION
OF COMPUTER SERVERS, A VIDEO RECORDING STUDIO, A SOUND RECORDING STUDIO, AND
RELATED ACTIVITIES ("Permitted Uses"), and for no other business or purpose
without the prior written consent of Landlord, which consent may be withheld if
Landlord, in its sole discretion, determines that any proposed use is
inconsistent with or detrimental to the maintenance and operation of the
Building as a first-class office building or is inconsistent with any
restriction on use of the Premises, the Building, or the Land contained in any
lease, mortgage, or other instrument or agreement by which the Landlord is bound
or to which any of such property is subject. Tenant shall not commit any act
that will increase the then existing cost of insurance on the Building without
Landlord's consent. Tenant shall promptly pay upon demand the amount of any
increase in insurance costs caused by any act or acts of Tenant. Tenant shall
not commit or allow to be committed any waste upon the Premises, or any public
or private nuisance or other act which disturbs the quiet enjoyment of any other
tenant in the Building or which is unlawful. Tenant shall not, without the
written consent of Landlord, use any apparatus, machinery or device in or about
the Premises which will cause any substantial noise, vibration or fumes. If
Tenant shall permit smoking in the Premises, in compliance with any applicable
laws or regulations, Tenant shall be required to install, at Tenant's sole cost,
special tenant improvements designed to alleviate the spread of smoke outside
the Premises, including extending demising walls from structure to structure and
installing a dedicated exhaust system for the Premises in compliance with any
applicable laws or regulations. If any of Tenant's office machines or equipment
should disturb the quiet enjoyment of any other tenant in the Building, then
Tenant shall provide adequate insulation, or take other action as may be
necessary to eliminate the disturbance. Tenant shall comply with all laws
relating to its use or occupancy of the Premises and shall observe such
reasonable rules and regulations (not inconsistent with the terms of this Lease)
as may be adopted and made available to Tenant by Landlord from time to time for
the safety, care and cleanliness of the Premises or the Building, and for the
preservation of good order therein.
9. SERVICES AND UTILITIES:
(a) STANDARD SERVICES:
Landlord shall maintain the Premises and the public and common areas of the
Building in good order and condition consistent with the operation and
maintenance of a first-class office building in downtown Seattle, Washington.
Landlord shall furnish the Premises with electricity for normal office use,
including lighting and operation of low power usage office machines, water and
elevator service at all times during the term of the Lease. IN ADDITION,
LANDLORD SHALL PROVIDE ADDITIONAL ELECTRICAL SERVICE AT TENANT'S REQUEST ,
PROVIDED TENANT PAYS THE COST THEREOF. Landlord shall also provide lamp
replacement service for building standard light fixtures, toilet room supplies,
window washing at reasonable intervals, and customary building janitorial
service. No janitorial service shall be provided for
4
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Saturdays, Sundays or legal holidays. The costs of any janitorial or other
service provided by Landlord to Tenant which are in addition to the services
ordinarily provided MAJOR Building tenants shall be repaid by Tenant as
Additional Rent upon receipt of billings therefor. LANDLORD SHALL PROVIDE
SECURITY PERSONNEL AND SERVICES TYPICAL OF CLASS A BUILDINGS IN DOWNTOWN
SEATTLE.
(b) NORMAL BUSINESS HOURS:
From 7:00 a.m. to 6:00 p.m. on weekdays and from 8:00 a.m. to 1:00 p.m. on
Saturdays, excluding legal holidays ("Normal Business Hours"), Landlord shall
furnish to the Premises heat and air conditioning. If requested by Tenant,
Landlord shall furnish heat and air conditioning at times other than Normal
Business Hours and the cost of such services as estimated by Landlord shall be
paid by Tenant as Additional Rent. During other than Normal Business Hours,
Landlord may restrict access to the Building in accordance with the Building's
security system, provided that Tenant shall have at all times during the term of
this Lease (24 hours of all days) reasonable access to the Premises. LANDLORD
SHALL, AT THE REQUEST OF TENANT PROGRAM THE SECURITY ACCESS SYSTEMS TO RESTRICT
ELEVATOR ACCESS TO THOSE FLOORS ON WHICH TENANT IS THE SOLE OCCUPANT.
(c) INTERRUPTION OF SERVICES:
Landlord shall not be liable for any loss, injury or damage to person or
property caused by or resulting from any variation, interruption, or failure of
such services due to any cause whatsoever OTHER THAN LANDLORD'S GROSS NEGLIGENCE
OR WILLFUL MISCONDUCT. No temporary interruption or failure of such services
incident to the making of repairs, alterations, or improvements, or due to
accident, strike or conditions or events beyond Landlord's reasonable control
shall be deemed an eviction of Tenant or relieve Tenant from any of Tenant's
obligations hereunder; provided, however, if such interruption or failure shall
continue for THREE (3) business days, Tenant's Rent hereunder shall thereafter
abate to the extent the Premises are thereby rendered untenantable for Tenant's
normal business operations until such services are restored. Landlord shall use
its best efforts in good faith to minimize any disruption of Tenant's use of the
Premises arising from any interruption or failure of services.
(d) ADDITIONAL SERVICES:
The Building mechanical system is designed to accommodate heating loads
generated by lights and equipment using up to 2.8 watts per square foot. Before
installing lights and equipment in the Premises which WILL CAUSE the aggregate
ACTUAL LOADS IN THE PREMISES TO EXCEED AN AVERAGE OF 2.8 WATTS PER SQUARE FOOT,
Tenant shall obtain the written permission of Landlord. Landlord may refuse to
grant such permission unless Tenant shall agree to pay the costs of Landlord for
installation of supplementary air conditioning capacity or electrical systems as
necessitated by such equipment or lights. LANDLORD HEREBY APPROVES TENANT'S
INSTALLATION OF ALL COMPUTERS, SOUND STUDIO EQUIPMENT AND SERVICES WHICH TENANT
REQUIRES FOR THE OPERATION OF ITS BUSINESS, PROVIDED, HOWEVER THAT IF THE ACTUAL
LOADS IN THE PREMISES ARE IN EXCESS OF 2.8 WATTS PER SQUARE FOOT, TENANT SHALL
PAY THE COST OF LANDLORD FOR INSTALLATION OF SUPPLEMENTARY AIR CONDITIONING
CAPACITY OR ELECTRICAL SYSTEMS AS NECESSITATED BY SUCH EQUIPMENT OR LIGHTS.
(e) COSTS OF ADDITIONAL SERVICES:
In addition, Tenant shall in advance, on the first day of each month during
the Lease term, pay Landlord as Additional Rent the reasonable amount estimated
by Landlord as the cost of furnishing electricity for the operation of such
equipment or lights and the reasonable amount estimated by Landlord as the costs
of operation and maintenance of supplementary air conditioning units
necessitated by Tenant's use of such equipment or lights. Landlord shall be
entitled to install and operate at Tenant's cost a monitoring/metering system in
the Premises to measure the added demands on electricity, heating, ventilation,
and air conditioning systems resulting from such equipment or lights and from
Tenant's after-hours heating, ventilation and air conditioning service
requirements. Tenant shall comply with Landlord's reasonable instructions for
the use of drapes, blinds and thermostats in the Building.
(f) LANDLORD SHALL PROVIDE AFTER-HOURS HVAC SERVICE TO EACH FLOOR ON WHICH THE
PREMISES ARE LOCATED WHICH CAN BE ACTIVATED BY TENANT BY A SWITCH ON EACH FLOOR
FOR A THREE HOUR (OR LESS) DURATION). TENANT SHALL REIMBURSE LANDLORD THE
REASONABLE COSTS OF INSTALLATION AND PROGRAMMING OF THE SWITCH SYSTEM AND WILL
PAY THE THEN-CURRENT PER HOUR COSTS, AS REASONABLY ESTIMATED BY LANDLORD
(CURRENTLY ESTIMATED TO BE $12.00 PER HOUR PER FLOOR), FOR AFTER-HOURS HVAC.
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10. COSTS OF OPERATIONS AND REAL ESTATE TAXES:
(A) ADDITIONAL RENT:
Tenant shall pay as Additional Rent its pro rata share of increases in
taxes and operating costs in excess of taxes and operating costs in the Base
Year ("Base Amounts"). Operating costs shall be adjusted to reflect 100%
occupancy in the Building.
(B) DEFINITIONS:
(i) For the purposes of this section, "Taxes" shall mean taxes and
assessments (including special district levies) on real and personal property
payable during any calendar year or fiscal year, based on the actual assessment
period, with respect to the Land, the Building and all property of Landlord,
real or personal, used directly in the operation of the Building and located in
or on the Building, together with any taxes levied or assessed in addition to or
in lieu of any such taxes or any tax upon leasing of the Building or the rents
collected (excluding any net income or franchise tax) ("Taxes").
(ii) For purposes of this Section, "Operating Costs" or "Costs" shall
mean all expenses of Landlord for maintaining, operating and repairing the Land
and Building and the personal property used in connection therewith, including
without limitation insurance premiums, utilities, REASONABLE management fees and
other expenses which in accordance with generally accepted accounting and
management practices would be considered an expense of maintaining, operating or
repairing the Building ("Operating Costs" or "Costs"); excluding, however: (I)
Costs of any special services rendered to individual tenants for which a
separate charge is collected; (II) leasing commissions and other leasing
expenses; (III) Costs of improvements required to be capitalized in accordance
with generally accepted accounting principals, except Operating Costs shall
include amortization of capital improvements (A) made subsequent to initial
development of the Building which are designed with a reasonable probability of
improving the operating efficiency of the Building, or providing savings in the
cost of operating the Building; or, (B) which are reasonably responsive to
requirements imposed with respect to the Building under any amendment to any
applicable building, health, safety, fire, nondiscrimination, or similar law or
regulation ("law"), or any new law, or any new interpretation of an existing law
("new interpretation"), which amendment, law or new interpretation is adopted or
arose after the Commencement Date of this Lease; (IV) INTEREST AND AMORTIZATION
OF PRINCIPAL OF MORTGAGES, AND OTHER DEBT COSTS OR GROUND LEASE PAYMENTS, IF
ANY; (V) LEGAL FEES IN CONNECTION WITH LEASING, TENANT DISPUTES, ENFORCEMENT OF
LEASES OR DEFENSE OF LANDLORD'S TITLE TO OR ANY INTEREST IN THE PREMISES, THE
BUILDING OR THE PROPERTY; (VI) COSTS OF IMPROVEMENTS OR ALTERATIONS TO TENANT
SPACES, INCLUDING BUT NOT LIMITED TO PERMIT, LICENSE AND INSPECTION FEES; (VII)
COSTS PAID BY ANY TENANT DIRECTLY TO THIRD PARTIES OR AS TO WHICH LANDLORD IS
OTHERWISE REIMBURSED BY ANY THIRD PARTY OR TENANT IN CONNECTION WITH ANY SERVICE
PROVIDED FOR ANY TENANT; (VIII) ANY COSTS EXPRESSLY EXCLUDED FORM OPERATING
COSTS ELSEWHERE IN THIS LEASE; (IX) COSTS OF ANY ITEMS TO THE EXTENT LANDLORD
RECEIVES REIMBURSEMENT FROM INSURANCE PROCEEDS OR FROM A THIRD PARTY (SUCH
PROCEEDS WILL BE DEDUCTED FROM OPERATING COSTS IN THE YEAR IN WHICH RECEIVED);
(X) COSTS INCURRED DUE TO A VIOLATION BY LANDLORD OR ANY OTHER TENANT OF ANY OF
THE TERMS AND CONDITIONS OF ANY LEASE OR LAW; (XI) OVERHEAD AND PROFIT
INCREMENTS OR OTHER SUMS PAID TO SUBSIDIARIES, AFFILIATES, OR OTHER PARTIES
RELATED TO LANDLORD, OR TO LANDLORD'S ASSET MANAGER OR PROPERTY MANAGER (FOR
ITEMS OTHER THAN THE PROPERTY MANAGEMENT FEE) FOR SERVICES, SUPPLIES OR OTHER
MATERIALS, TO THE EXTENT THAT THE COST OF THE SERVICES, SUPPLIES OR MATERIALS
EXCEED THE COSTS THAT WOULD HAVE BEEN PAID HAD THE SERVICES, SUPPLIES OR
MATERIALS BEEN PROVIDED BY UNAFFILIATED PARTIES ON A COMPETITIVE BASIS; (XII)
ADVERTISING OR PROMOTIONAL EXPENDITURES; AND, (XIII) SEPARATELY IDENTIFIABLE AND
DIRECT COSTS INCURRED IN THE DAY TO DAY OPERATION OF THE PARKING FACILITIES;
EXCLUDING ANY PORTION OF THE PROPERTY MANAGEMENT FEE ATTRIBUTABLE TO GROSS
PARKING REVENUES. For purposes of this Lease, a new interpretation shall mean
any interpretation, enforcement or application of a law enacted prior to the
Commencement Date that imposes requirements with respect to the Building that
Landlord in the exercise of sound business judgment and good faith at the time
of Landlord's execution of this Lease would not have deemed applicable to the
Building.
(iii) "Year" shall mean the calendar year.
(C) ESTIMATED COSTS:
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At the beginning of each year after the Base Year, Landlord shall furnish
Tenant a written statement of estimated Operating Costs and Taxes for such year;
a calculation of the amount, if any, by which such estimated Operating Costs and
Taxes will exceed the relevant Base Amounts; and a calculation of Tenant's Pro
Rata Share of any such amount. Tenant shall pay one-twelfth (1/12) of that
amount as Additional Rent for each month during the year. If at any time during
the year Landlord reasonably believes that the actual Operating Costs or Taxes
will vary from such estimated Operating Costs or Taxes by more than five percent
(5%), Landlord may by written notice to Tenant revise the estimate for such
year, and Additional Rent for the balance of such year shall be paid based upon
such revised estimates.
(D) ACTUAL COSTS:
Within ninety (90) days after the end of each year after the Base Year or
as soon thereafter as practicable, Landlord shall deliver to Tenant a written
statement setting forth Tenant's Pro Rata Share of the actual Operating Costs
and Taxes in excess of the Base Amounts during the preceding year. If the actual
Operating Costs in excess of the Base Amount or actual Taxes in excess of the
Base Amount, or both, exceed the estimates for each paid by Tenant during the
year, Tenant shall pay the amount of such excess to Landlord as Additional Rent
within thirty (30) days after receipt of such statement. If the actual Operating
Costs in excess of the Base Amount or actual Taxes in excess of the Base Amount,
or both, are less than the amount paid by Tenant to Landlord, then the amount of
such overpayment by Tenant shall be, at Landlord's option, credited against any
amounts owed by Tenant under this Lease, refunded by check to Tenant, or
credited against the next Rent payable by Tenant hereunder. Notwithstanding any
other provision of this Section 10, Tenant shall not receive any credit or
offset to that extent against any other amount payable under this Lease to the
extent actual Operating Costs or Taxes are less than the applicable Base Amount.
(E) RECORDS AND ADJUSTMENTS:
Landlord shall keep records showing all expenditures made in connection
with Operating Costs and Taxes, and such records shall be available for
inspection by Tenant within 60 days after receipt of the statement of actual
costs; Landlord and Tenant agree the results of any such audit or review shall
remain confidential. Tenant hereby waives any right to any adjustment of sums
paid under this Section 10 unless a claim in writing specifying the reasons
therefor is delivered to Landlord no later than TWELVE (12) months after the end
of the year for which the sums were paid. Operating Costs and Taxes shall be
prorated for any portion of a year at the beginning or end of the term of this
Lease. Notwithstanding this Section 10, the Rent payable by Tenant shall in no
event be less than the Rent specified in Section 1(h) hereof.
(F) PERSONAL PROPERTY TAXES:
Tenant shall pay all personal property taxes with respect to property of
Tenant located on the Premises or in the Building. "Property of Tenant" shall
include all improvements which are paid for by Tenant and "personal property
taxes" shall include all property taxes assessed against the property of Tenant,
whether assessed as real or personal property.
11. CARE OF PREMISES:
Landlord shall perform all normal maintenance and repairs reasonably
determined by Landlord as necessary to maintain the Premises and the Building as
a first-class office building; provided that Landlord shall not be required to
maintain or repair any property of Tenant or any appliances (such as
refrigerators, water heaters, microwave ovens, and the like) which are part of
the Premises. Tenant shall take good care of the Premises. Tenant shall not make
any alterations, additions or improvements ("Alterations") in or to the
Premises, or make changes to locks on doors, or add, disturb or in any way
change any plumbing or wiring (OTHER THAN LINES ADDRESSED SECTION 36)
("Changes") without first obtaining the written consent of Landlord, WHICH
CONSENT SHALL NOT BE UNREASONABLY WITHHELD, CONDITIONED OR DELAYED, and, where
appropriate, in accordance with plans and specifications reasonably approved by
Landlord. Any Alterations or Changes required to be made to Tenant's Premises by
any amendment to any applicable building, health, safety, fire,
nondiscrimination, or similar law or regulation ("law"), or any new law shall be
made at Tenant's sole expense and shall be subject to the prior written consent
of Landlord. Tenant shall reimburse Landlord for any reasonable sums expended
for examination and approval of the architectural and mechanical plans and
specifications of the Alterations
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and Changes and direct OUT OF POCKET costs reasonably incurred during any
inspection or supervision of the Alterations or Changes. All damage or injury
done to the Premises or Building by Tenant or by any persons who may be in or
upon the Premises or Building with the express or implied consent of Tenant,
including but not limited to the cracking or breaking of any glass of windows
and doors, shall be paid for by Tenant. LANDLORD SHALL PERFORM ANY IMPROVEMENTS
TO THE BUILDING COMMON AREAS REQUIRED BY THE AMERICANS WITH DISABILITIES ACT AND
SUCH IMPROVEMENTS SHALL BE TREATED AS ANY OTHER EXPENSE MANDATED BY GOVERNMENTAL
JURISDICTION.
12. ACCESS:
Tenant shall permit Landlord and its agents to enter into and upon the
Premises at all reasonable times for the purpose of inspecting the same or for
the purpose of cleaning, repairing, altering or improving the Premises or the
Building. Upon reasonable notice, Landlord shall have the right to enter the
Premises for the purpose of showing the Premises to prospective tenants within
the period of one hundred eighty (180) days prior to the expiration or sooner
termination of the Lease term.
13. DAMAGE OR DESTRUCTION:
(A) DAMAGE AND REPAIR:
If the Building is damaged by fire or any other cause to such extent that
the cost of restoration, as reasonably estimated by Landlord, will equal or
exceed thirty percent (30%) of the replacement value of the Building (exclusive
of foundations) just prior to the occurrence of the damage, or if insurance
proceeds sufficient for restoration are for any reason unavailable, then
Landlord may no later than the sixtieth day following the damage, give Tenant a
notice of election to terminate this Lease. In the event of such election, this
Lease shall be deemed to terminate on the third day after the giving of said
notice, and Tenant shall surrender possession of the Premises within a
reasonable time thereafter, and the Rent and Additional Rent shall be
apportioned as of the date of said surrender and any Rent and Additional Rent
paid for any period beyond such date shall be repaid to Tenant. If the cost of
restoration as estimated by Landlord shall amount to less than thirty percent
(30%) of said replacement value of the Building and insurance proceeds
sufficient for restoration are available, or if Landlord does not elect to
terminate this Lease, Landlord shall restore the Building and the Premises (to
the extent of improvements to the Premises originally provided by Landlord
hereunder) with reasonable promptness, subject to delays beyond Landlord's
control and delays in the making of insurance adjustments by Landlord, and
Tenant shall have no right to terminate this Lease except as herein provided. To
the extent that the Premises are rendered untenantable, the Rent and Additional
Rent shall proportionately abate. No damages, compensation or claim shall be
payable by Landlord for inconvenience, loss of business or annoyance arising
from any repair or restoration of any portion of the Premises or of the
Building. Landlord shall use its best efforts to effect such repairs promptly.
NOTWITHSTANDING THE PROVISIONS OF SECTION 13(a) TO THE CONTRARY, WITHIN SIXTY
(60) DAYS FOLLOWING THE DATE OF SUCH DAMAGE OR DESTRUCTION, LANDLORD SHALL GIVE
NOTICE TO TENANT OF THE ESTIMATED DATE FOR COMPLETION OF SUCH REPAIRS WITH
RESPECT TO THE PREMISES OR THE BUILDING. IF RESTORATION OF TENANT'S PREMISES OR
THE BUILDING IS REASONABLY ESTIMATED TO EXCEED 180 DAYS FROM THE DATE OF THE
CASUALTY, THEN FOLLOWING TENANT'S RECEIPT OF THE ESTIMATED RESTORATION DATE,
TENANT SHALL HAVE THE OPTION TO TERMINATE THIS LEASE BY GIVING LANDLORD WRITTEN
NOTICE OF TERMINATION WITHIN 30 DAYS FOLLOWING THE RECEIPT OF SUCH NOTICE BY
TENANT FROM LANDLORD; SUCH TERMINATION TO BE EFFECTIVE 30 DAYS FOLLOWING
LANDLORD'S RECEIPT OF SUCH TERMINATION NOTICE FROM TENANT.
(b) DESTRUCTION DURING LAST YEAR OF TERM:
In case the Building shall be substantially destroyed by fire or other
cause at any time during the last twelve months of the term of this Lease,
either Landlord or Tenant may terminate this Lease upon written notice to the
other party hereto given within sixty (60) days of the date of such destruction.
(c) TENANT IMPROVEMENTS:
Landlord will not carry insurance of any kind on any improvements paid for
by Tenant or on Tenant's furniture or furnishings or on any fixtures, equipment,
improvements or
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appurtenances of Tenant under this Lease and Landlord shall not be obligated to
repair any damage thereto or replace the same.
14. WAIVER OF SUBROGATION:
Whether a loss or damage is due to the negligence of either Landlord or
Tenant, their agents or employees, or any other cause, Landlord and Tenant do
each hereby release and relieve the other, their agents or employees, from
responsibility for, and waive their entire claim of recovery for (i) any loss or
damage to the real or personal property of either located anywhere in the
Building or on the Land, including the Building itself, arising out of or
incident to the occurrence of any of the perils which are covered AND PAID by
their respective insurance policies, and (ii) any loss resulting from business
interruption at the Premises or loss of rental income from the Building, arising
out of or incident to the occurrence of any of the perils which are covered by a
business interruption insurance policy or loss of rental income insurance policy
held by Landlord or Tenant. Each party shall use best efforts to cause its
insurance carriers to consent to the foregoing waiver of rights of subrogation
against the other party. Notwithstanding the foregoing, no such release shall be
effective unless the aforesaid insurance policy or policies shall expressly
permit such a release or contain a waiver of the carrier's right to be
subrogated.
15. INDEMNIFICATION:
(a) Tenant shall indemnify and hold Landlord harmless from and against
liabilities, damages, losses, claims, and expenses, including attorneys fees,
arising FROM DAMAGE TO PROPERTY OR INJURY TO OR DEATH OF ANY PERSON TO THE
EXTENT CAUSED BY ANY NEGLIGENT ACT, NEGLIGENT OMISSION, OR WILLFUL MISCONDUCT,
of Tenant or its officers, contractors, licensees, agents, OR employees, in or
about the Building or Premises or arising from any breach or default under this
Lease by Tenant. The foregoing provisions shall not be construed to make Tenant
responsible for loss, damage, liability or expense resulting from injuries to
third parties caused by the negligence of Landlord, or its officers,
contractors, licensees, agents, employees, clients or customers or other tenants
of the Building.
(b) Landlord shall indemnify and hold Tenant harmless from and against all
liabilities, damages, losses, claims, and expenses, including attorneys' fees
arising FROM DAMAGE TO PROPERTY OR INJURY TO OR DEATH OF ANY PERSON TO THE
EXTENT CAUSED BY ANY NEGLIGENT ACT, NEGLIGENT OMISSION, OR WILLFUL MISCONDUCT,
of Landlord or its officers, contractors, licensees, agents, OR employees, in or
about the Building or Premises, or arising from any breach or default under this
Lease by Landlord. Landlord shall not be liable for any loss or damage to
persons or property sustained by Tenant or other persons, which may be caused by
theft, or by any act or neglect of Tenant or any other tenant or occupant of the
Building or any third parties.
16. INSURANCE:
(a) LIABILITY INSURANCE:
Tenant shall, throughout the term of this Lease and any renewal hereof, at
its own expense, keep and maintain in full force and effect, a policy of
commercial general liability (occurrence form) insurance, including contractual
liability insuring Tenant's activities upon, in or about the Premises or the
Building against claims of bodily injury or death or property damage or loss
with a combined single limit of not less than Three Million Dollars ($3,000,000)
per occurrence and Five Million Dollars ($5,000,000) in the aggregate. Landlord
and the Building manager shall be named as an additional insureds.
(b) PROPERTY INSURANCE:
Tenant shall, throughout the term of this Lease and any renewal thereof, at
its own expense, keep and maintain in full force and effect, what is commonly
referred to as "All Risk" or "Special" coverage insurance (excluding earthquake
and flood) on Tenant's leasehold improvements in an amount not less than one
hundred percent (100%) of the replacement value thereof.
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(c) INSURANCE POLICY REQUIREMENTS:
All insurance required under this Section 16 shall be with companies rated
AX or better by A.M. Best or otherwise reasonably approved by Landlord. No
insurance policy required under this Section 16 shall be cancelled or reduced in
coverage except after forty-five (45) days prior written notice to Landlord,
except after ten (10) days prior written notice to Landlord in the case of
non-payment of premium.
(d) CERTIFICATE OF INSURANCE:
Tenant shall deliver to Landlord prior to the Commencement Date, and from
time to time thereafter, copies of policies of such insurance or certificates
evidencing the existence and amounts of same and evidencing Landlord and the
Building manager as additional insureds thereunder. In no event shall the limits
of any insurance policy required under this Section 16 be considered as limiting
the liability of Tenant under this Lease. LANDLORD WILL PROVIDE A CERTIFICATE OF
INSURANCE TO TENANT UPON TENANT'S REQUEST, PROVIDED TENANT REIMBURSES LANDLORD
FOR ITS REASONABLE OUT-OF-POCKET COSTS INCURRED FOR PROVIDING SUCH CERTIFICATE.
(E) PRIMARY POLICIES:
All policies required under Section 16(a) shall be written as primary
policies and not contributing to or in excess of any coverage Landlord may
choose to maintain.
17. ASSIGNMENT AND SUBLETTING:
(A) ASSIGNMENT OR SUBLEASE:
Tenant shall not assign, mortgage, encumber or otherwise transfer this
Lease nor sublet the whole or any part of the Premises without in each case
first obtaining Landlord's prior written consent. SUCH consent shall not be
unreasonably withheld, except: (1) Landlord may withhold its consent if in
Landlord's judgment occupancy by any proposed assignee, subtenant, or other
transferee (i) is not consistent with the maintenance and operation of a
first-class office building due to the nature of the proposed occupant's
business or manner of conducting business or its experience or reputation in the
community, or (ii) is likely to cause disturbance to the normal use and
occupancy of the Building; (2) Landlord may withhold in its absolute and sole
discretion consent to any mortgage, hypothecation, pledge, or other encumbrance
of any interest in this Lease or the Premises by Tenant or any subtenant; (3)
Landlord may withhold its consent to the extent it deems necessary to comply
with any restriction on use of the Premises, the Building, or the Land contained
in any lease, mortgage, or other agreement or instrument by which the Landlord
is bound or to which any of such property is subject. No such assignment,
subletting or other transfer shall relieve Tenant of any liability under this
Lease. Consent to any such assignment, subletting or transfer shall not operate
as a waiver of the necessity for consent to any subsequent assignment,
subletting or transfer. Each request for an assignment or subletting must be
accompanied by a Processing Fee of $500 in order to reimburse Landlord for
expenses, including attorneys fees, incurred in connection with such request
("Processing Fee"). Tenant shall provide Landlord with copies of all
assignments, subleases and assumption instruments. TRANSFER OF STOCK OWNERSHIP
OFTENANT SHALL NOT BE DEEMED TO BE AN ASSIGNMENT OR TRANSFER OF THIS LEASE.
(b) LANDLORD RIGHT TO TERMINATE PORTION OF LEASE:
[INTENTIONALLY DELETED]
(c) TENANT TRANSFER OF LEASE:
If a Tenant is a corporation or partnership, any transfer of this Lease by
merger, consolidation or liquidation, shall constitute an assignment for the
purpose of this Section. If Tenant is a
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partnership, conversion of Tenant to a limited liability company or partnership
or to a corporation (or to another entity by which the parties in Tenant would
be relieved of liability to any creditors of Tenant) shall constitute an
assignment for purposes of this Section.
(d) ASSIGNEE OBLIGATIONS:
As a condition to Landlord's approval, any potential assignee otherwise
approved by Landlord shall assume in writing all obligations of Tenant under
this Lease and shall be jointly and severally liable with Tenant for rental and
other payments and performance of all terms, covenants and conditions of this
Lease.
(e) SUBLESSEE OBLIGATIONS:
Any sublessee shall assume all obligations of Tenant as to that portion of
the Premises which is subleased and shall be jointly and severally liable with
Tenant for rental and other payments and performance of all terms, covenants,
and conditions of this Lease with respect to such portion of the Premises.
18. SIGNS:
Tenant shall not place or in any manner display any sign, graphics, or
other advertising matter anywhere in or about the Premises or the Building at
places visible (either directly or indirectly) from anywhere outside the
Premises without first obtaining Landlord's written consent thereto, such
consent to be at Landlord's sole discretion. Any such consent by Landlord shall
be upon the understanding and condition that Tenant shall remove the same at the
expiration or sooner termination of this Lease and Tenant shall repair any
damage to the Premises or the Building caused thereby. Landlord shall not
unreasonably withhold its consent to normal Tenant signage within the Premises
which is consistent in Landlord's opinion with the Building's image and signage
and graphics program. Signage other than Building directory or building standard
elevator lobby directory signage is at Tenant's sole expense.
19. LIENS AND INSOLVENCY:
(a) LIENS:
Tenant shall keep its interest in this Lease, the Premises, the Land and
the Building free from any liens arising out of any work performed and materials
ordered or obligations incurred by or on behalf of Tenant and hereby indemnifies
and holds Landlord harmless from any liability from any such lien including
without limitation, liens arising from ANY TENANT IMPROVEMENT WORK UNDERTAKEN BY
TENANT. In the event any lien is filed against the Building, the Land or the
Premises by any person claiming by, through or under Tenant, Tenant shall, upon
request of Landlord and at Tenant's expense, immediately cause such lien to be
released of record or furnish to Landlord a bond, in form and amount and issued
by a surety reasonably satisfactory to Landlord, indemnifying Landlord, the Land
and the Building against all liability, costs and expenses, including attorneys
fees, which Landlord may incur as a result thereof. Provided that such bond has
been furnished to Landlord, Tenant, at its sole cost and expense and after
written notice to Landlord, may contest, by appropriate proceedings conducted in
good faith and with due diligence, any lien, encumbrance or charge against the
Premises arising from work done or materials provided to or for Tenant, if, and
only if, such proceedings suspend the collection thereof against Landlord,
Tenant and the Premises and neither the Premises, the Building nor the Land nor
any part thereof or interest therein is or will be in any danger of being sold,
forfeited or lost.
(b) INSOLVENCY:
If Tenant becomes insolvent or voluntarily or involuntarily bankrupt, or if
a receiver, assignee or other liquidating officer is appointed for the business
of Tenant, Landlord at its option may terminate this Lease and Tenant's right of
possession under this Lease and in no event shall this Lease or any rights or
privileges hereunder be an asset of Tenant in any bankruptcy, insolvency or
reorganization proceeding.
20. DEFAULT:
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(a) CUMULATIVE REMEDIES:
All rights of Landlord herein enumerated shall be cumulative, and none
shall exclude any other right or remedy allowed by law. In addition to the other
remedies provided in this Lease, Landlord shall be entitled to restrain by
injunction the violation or threatened violation of any of the covenants,
agreements or conditions of this Lease.
(b) TENANT'S RIGHT TO CURE:
Tenant shall have a period of TEN (10) business days from the date of
written notice from Landlord to Tenant within which to cure any default in the
payment of Rent, Additional Rent and other sums due hereunder. Tenant shall have
a period of THIRTY (30) days from the date of written notice from Landlord to
Tenant within which to cure any other default hereunder; provided, however, that
with respect to any such default capable of being cured by Tenant which cannot
be cured within THIRTY (30) days, the default shall not be deemed to be uncured
if Tenant commences to cure within THIRTY (30) days and for so long as Tenant is
diligently pursuing the cure thereof.
(c) ABANDONMENT:
Abandonment shall be defined as an absence from the Premises of five (5)
days or more while Tenant is in default or Landlord otherwise reasonably
determines that Tenant has abandoned the Premises and its interest under this
Lease. Any abandonment by Tenant shall be considered a default with no right to
cure, allowing Landlord to re-enter the Premises as hereinafter set forth.
(d) LANDLORD'S REENTRY:
Upon abandonment or an uncured default of this Lease by Tenant, Landlord,
in addition to any other rights or remedies it may have, at its option, may
enter the Premises or any part thereof, and expel, remove or put out Tenant or
any other persons who may be thereon, together with all personal property found
therein; and Landlord may terminate this Lease, or it may from time to time,
without terminating this Lease, relet the Premises or any part thereof for such
term or terms (which may be for a term less than or extending beyond the term
hereof) and at such rental or rentals and upon such other terms and conditions
as Landlord in its sole discretion may deem advisable, with the right to repair,
renovate, remodel, redecorate, alter and change the Premises, Tenant remaining
liable for any deficiency computed as hereinafter set forth. In the case of any
default, reentry and/or dispossession all Rent and Additional Rent shall become
due thereupon, together with such expenses as Landlord may reasonably incur for
attorneys fees, advertising expenses, brokerage fees and/or putting the Premises
in good order or preparing the same for re-rental, together with interest
thereon as provided in Section 37(f) hereof, accruing from the date of any such
expenditure by Landlord. No such re-entry or taking possession of the Premises
shall be construed as an election on Landlord's part to terminate this Lease
unless a written notice of such intention be given to Tenant.
(e) RELETTING THE PREMISES:
At the option of Landlord, rents received by Landlord from such reletting
shall be applied first to the payment of any indebtedness from Tenant to
Landlord other than Rent and Additional Rent due hereunder; second, to the
payment of THE PRO RATA SHARE, BASED ON THE REMAINING TERM OF TENANT'S LEASE
COMPARED TO THE TOTAL TERM OF THE NEW TENANT'S LEASE, OF any costs and expenses
of such reletting and including, but not limited to, attorneys fees, advertising
fees and brokerage fees, and to the payment of any repairs, renovations,
remodeling, redecoration, alterations and changes in the Premises; third, to the
payment of Rent and Additional Rent due and to become due hereunder, and, if
after so applying said Rents there is any deficiency in the Rent or Additional
Rent to be paid by Tenant under this Lease, Tenant shall pay any deficiency to
Landlord monthly on the dates specified herein. Any payment made or suits
brought to collect the amount of the deficiency for any month shall not
prejudice in any way the right of Landlord to collect the deficiency for any
subsequent month. The failure of Landlord to relet the Premises or any part or
parts thereof shall not release or affect Tenant's liability hereunder, nor
shall Landlord be liable for failure to relet, or in the event of reletting, for
failure to collect the Rent thereof, and in no event shall Tenant be entitled to
receive any excess of net Rents collected over sums payable by Tenant to
Landlord hereunder. Notwithstanding any such reletting without termination,
Landlord may at any time elect to terminate this Lease for such previous breach
and default. Should Landlord terminate this Lease by reason of any default, in
addition to any other remedy it may have, it may recover from Tenant the then
present value of Rent and Additional Rent reserved in this Lease for the balance
of the
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Term, as it may have been extended, over the then fair market rental value of
the Premises for the same period, plus all court costs and attorneys fees
incurred by Landlord in the collection of the same.
(f) TRADE FIXTURES:
21. PRIORITY:
(a) Tenant agrees that this Lease shall be subordinate to any first
mortgage or deed of trust now existing upon the Premises or the Building created
by or at the instance of Landlord and to any and all advances to be made
thereunder and to interest thereon and all renewals, , or extensions thereof
("Landlord's Mortgage"). Upon demand by Landlord or the holder of any Landlord's
Mortgage ("Holder"), Tenant shall execute and deliver subordination and
attornment agreements in form and substance satisfactory to such Holder.
Notwithstanding the foregoing, upon demand of such Holder, such Landlord's
Mortgage shall be subordinate to this Lease; provided, however, that in such
event, notwithstanding such subordination, such Landlord's Mortgage shall be
superior to this Lease with respect to (i) the right, claim and lien of the
Landlord's Mortgage in, to and upon any award or other compensation for any
taking by eminent domain of any part of the Premises or the Building and the
right of disposition thereof in accordance with the provisions of the Landlord's
Mortgage; and upon any proceeds payable under any policies of fire and rental
insurance upon the Premises or the Building and to the right of disposition
thereof in accordance with the terms of the Landlord's Mortgage; (ii) any lien,
right or judgment which may have arisen at any time under the terms of the
Lease; and (iii) such other matters as may be specifically reserved by the
Holder of such Landlord's Mortgage in writing in connection with such
subordination.
(b) Upon request Tenant shall attorn to the Holder of any Landlord's
Mortgage or any person or persons purchasing or otherwise acquiring the Land,
Building or Premises at any sale or other proceeding under any Landlord's
Mortgage, PROVIDING THAT SUCH PERSON AGREES TO RECOGNIZE TENANT'S LEASE AND NOT
DISTURB TENANT'S QUIET ENJOYMENT OF THE PREMISES UNDER THE LEASE. Tenant shall
properly execute, acknowledge and deliver instruments which the holder of any
Landlord's Mortgage may reasonably require to effectuate the provisions of this
Section.
(c) IN THE EVENT ANY LANDLORD'S MORTGAGE IS HEREAFTER PLACED UPON THE
PREMISES OR THE BUILDING BY OR AT THE INSTANCE OF LANDLORD, UPON THE REQUEST OF
THE HOLDER THEREOF THIS LEASE SHALL BE SUBORDINATE TO SUCH MORTGAGE OR DEED OF
TRUST AND TO ANY AND ALL ADVANCES THEREUNDER, INTEREST THEREON AND ALL RENEWALS,
REPLACEMENTS, OR EXTENSIONS THEREOF, PROVIDED THAT SUCH HOLDER AND TENANT SHALL
ENTER INTO AN AGREEMENT FOR SUBORDINATION, ATTORNMENT, AND NON-DISTURBANCE BY
WHICH SUCH HOLDER SHALL AGREE TO RECOGNIZE THIS LEASE AND NOT DISTURB TENANT'S
OCCUPANCY UNDER THIS LEASE AS LONG AS TENANT IS NOT IN DEFAULT HEREUNDER BEYOND
ANY APPLICABLE PERIOD TO CURE, AND OTHERWISE UPON SUCH TERMS AND CONDITIONS AS
ARE THEN CUSTOMARILY IN USE BY INSTITUTIONAL LENDERS IN LIKE CIRCUMSTANCES AND
ARE REASONABLY ACCEPTABLE TO SUCH HOLDER AND TO TENANT. NOTWITHSTANDING THE
FOREGOING, UPON THE DEMAND OF SUCH HOLDER, A SUBSEQUENT LANDLORD'S MORTGAGE
SHALL BE SUBORDINATE TO THIS LEASE UPON THE TERMS AND CONDITIONS SET FORTH IN
THE THIRD SENTENCE OF SECTION 21(A) ABOVE.
22. SURRENDER OF POSSESSION:
Subject to the terms of Section 13 relating to damage and destruction, upon
expiration of the term of this Lease, whether by lapse of time or otherwise,
Tenant shall promptly and peacefully surrender the Premises to Landlord in as
good condition as when received by Tenant from Landlord or as thereafter
improved, reasonable use and wear and tear AND CASUALTY DAMAGE AND DESTRUCTION
excepted.
23. REMOVAL OF PROPERTY:
Tenant shall remove all of its movable personal property, telephone, data
and computer cabling, and trade fixtures paid for by Tenant which can be removed
without damage to the Premises at the
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expiration or earlier termination of this Lease, and shall pay Landlord any
damages for injury to the Premises or Building resulting from such removal. All
other improvements and additions to the Premises shall thereupon become the
property of Landlord. NOTWITHSTANDING THE FOREGOING, UPON THE EXPIRATION OR
SOONER TERMINATION OF THIS LEASE TENANT SHALL REMOVE ALL NON-STANDARD
IMPROVEMENTS (E.G. SOUND STUDIO, RAISED FLOORING IN A COMPUTER ROOM, SERVERS,
ETC.) MADE TO THE PREMISES BY TENANT; SUCH NON-STANDARD IMPROVEMENTS SHALL BE
IDENTIFIED BY LANDLORD AND TENANT UPON COMPLETION OF PLANS FOR THE INITIAL
PREMISES AND ANY FURTHER EXPANSIONS.
24. NON-WAIVER:
Waiver by Landlord or Tenant of any term, covenant or condition herein
contained or any breach thereof shall not be deemed to be a waiver of such term,
covenant, or condition or of any subsequent breach of the same or any other
term, covenant, or condition herein contained. The subsequent acceptance of any
payment hereunder by Landlord shall not be deemed to be a waiver of any
preceding breach by Tenant of any term, covenant or condition of this Lease,
other than the failure of Tenant to pay the amount so accepted, regardless of
Landlord's knowledge of such preceding breach at the time of acceptance of such
payment.
25. HOLDOVER:
If Tenant shall, with the written consent of Landlord, hold over after the
expiration of the term of this Lease, such tenancy shall be deemed a
month-to-month tenancy, which tenancy may be terminated as provided by
applicable law. During such tenancy, Tenant agrees to pay to Landlord the
greater of (a) the then quoted rates for similar space in the Building or (b)
ONE HUNDRED TEN PERCENT (110%) of the Rent and Additional Rent in effect upon
the date of such expiration as stated herein, and to be bound by all of the
terms, covenants and conditions herein specified, so far as applicable.
Acceptance by Landlord of Rent and Additional Rent after such expiration or
earlier termination shall not result in a renewal of this Lease. The foregoing
provisions of this Section 25 are in addition to and do not affect Landlord's
right of re-entry or any rights of Landlord hereunder or as otherwise provided
by law. If Tenant shall hold over after the expiration or earlier termination of
this Lease without the written consent of Landlord, such occupancy shall be
deemed an unlawful detainer of the Premises subject to the applicable laws of
the state in which the Building is located and, in addition, Tenant shall be
liable for any costs, damages, losses and expenses incurred by Landlord as a
result of Tenant's failure to surrender the Premises in accordance with this
Lease.
26. CONDEMNATION:
(a) ENTIRE TAKING:
If all of the Premises or such portions of the Building as may be required
for the reasonable use of the Premises, are taken by eminent domain, this Lease
shall automatically terminate as of the date title vests in the condemning
authority and all Rent, Additional Rent and other payments shall be paid to that
date.
(b) CONSTRUCTIVE TAKING OF ENTIRE PREMISES:
In the event of a taking of a material part of but less than all of the
Building, where Landlord shall reasonably determine that the remaining portions
of the Premises cannot be economically and effectively used by it (whether on
account of physical, economic, aesthetic or other reasons), or if, in the
opinion of Landlord, the Building should be restored in such a way as to alter
the Premises materially, Landlord shall forward a written notice to Tenant of
such determination not more than sixty (60) days after the date of taking. The
term of this Lease shall expire upon such date as Landlord shall specify in such
notice but not earlier than sixty (60) days after the date of such notice.
(c) PARTIAL TAKING:
In case of taking of a part of the Premises, or a portion of the Building
not required for the reasonable use of the Premises, then this Lease shall
continue in full force and effect and the Rent shall be equitably reduced based
on the proportion by which the floor area of the Premises is reduced, such Rent
reduction to be effective as of the date title to such portion vests in the
condemning authority. If a portion
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of the Premises shall be so taken which renders the remainder of the Premises
unsuitable for continued occupancy by Tenant under this Lease, Tenant may
terminate this Lease by written notice to Landlord within sixty (60) days after
the date of such taking and the term of this Lease shall expire upon such date
as Tenant shall specify in such notice not later than sixty (60) days after the
date of such notice.
(d) AWARDS AND DAMAGES:
Landlord reserves all rights to damages to the Premises for any partial,
constructive, or entire taking by eminent domain, and Tenant hereby assigns to
Landlord any right Tenant may have to such damages or award, and Tenant shall
make no claim against Landlord or the condemning authority for damages for
termination of the leasehold interest or interference with Tenant's business.
Tenant shall have the right, however, to claim and recover from the condemning
authority compensation for any loss to which Tenant may be put for Tenant's
moving expenses, business interruption or taking of Tenant's personal property
and leasehold improvements paid for by Tenant (not including Tenant's leasehold
interest) provided that such damages may be claimed only if they are awarded
separately in the eminent domain proceedings and not out of or as part of the
damages recoverable by Landlord.
27. NOTICES:
All notices under this Lease shall be in writing and delivered in person or
sent by registered or certified mail, or nationally recognized courier (such as
Federal Express, DHL, etc.), postage prepaid, to Landlord and to Tenant at the
Notice Addresses provided in Section 1(m) (provided that after the Commencement
Date any such notice may be mailed or delivered by hand to Tenant at the
Premises) and to the holder of any mortgage or deed of trust at such place as
such holder shall specify to Tenant in writing; or such other addresses as may
from time to time be designated by any such party in writing. Notices mailed as
aforesaid shall be deemed given on the date of such mailing.
28. COSTS AND ATTORNEYS FEES:
If Tenant or Landlord shall bring any action for any relief against the
other, declaratory or otherwise, arising out of this Lease, including any suit
by Landlord for the recovery of Rent, Additional Rent or other payments
hereunder or possession of the Premises, each party shall, and hereby does, to
the extent permitted by law, waive trial by jury and the losing party shall pay
the prevailing party a reasonable sum for attorneys fees in such suit, at trial
and on appeal, and such attorneys fees shall be deemed to have accrued on the
commencement of such action.
29. LANDLORD'S LIABILITY:
Anything in this Lease to the contrary notwithstanding, covenants,
undertakings and agreements herein made on the part of Landlord are made and
intended not as personal covenants, undertakings and agreements for the purpose
of binding Landlord personally or the assets of Landlord except Landlord's
interest in the Premises and Building, but are made and intended for the purpose
of binding only the Landlord's interest in the Premises and Building, as the
same may from time to time be encumbered. No personal liability or personal
responsibility is assumed by, nor shall at any time be asserted (EXCEPT FOR THE
PURPOSE OF OBTAINING JURISDICTION OVER LANDLORD'S INTEREST IN THE BUILDING) or
enforceable against Landlord or its partners or their respective heirs, legal
representatives, successors, and assigns on account of the Lease or on account
of any covenant, undertaking or agreement of Landlord in this Lease contained.
30. ESTOPPEL CERTIFICATES:
Tenant shall, from time to time, upon written request of Landlord, execute,
acknowledge and deliver to Landlord or its designee a written statement prepared
by Landlord stating: The date this Lease was executed and the date it expires;
the date the term commenced and the date Tenant accepted the Premises; the
amount of minimum monthly Rent and the date to which such Rent has been paid;
and certifying to the extent true: That this Lease is in full force and effect
and has not been assigned, modified, supplemented or amended in any way (or
specifying the date and terms of agreement so affecting this Lease); that this
Lease represents the entire agreement between the parties as to this leasing;
that all conditions under this Lease to be performed by Landlord have been
satisfied; that all required
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<PAGE> 19
contributions by Landlord to Tenant on account of Tenant's improvements have
been received; that on this date there are no existing claims, defenses or
offsets which Tenant has against the enforcement of this Lease by Landlord; that
the security deposit is as stated in the Lease; and such other matters as
Landlord may reasonably request. It is intended that any such statement
delivered pursuant to this paragraph may be relied upon by a prospective
purchaser of Landlord's interest or the holder of any mortgage upon Landlord's
interest in the Building. If Tenant shall fail to respond within FIFTEEN (15)
days of receipt by Tenant of a written request by Landlord as herein provided,
Tenant shall be deemed to have given such certificate as above provided without
modification and shall be deemed to have admitted the accuracy of any
information supplied by Landlord to a prospective purchaser or mortgagee and
that this Lease is in full force and effect, that there are no uncured defaults
in Landlord's performance, that the security deposit is as stated in the Lease,
and that not more than one month's Rent has been paid in advance.
31. TRANSFER OF LANDLORD'S INTEREST:
In the event of any transfers of Landlord's interest in the Premises or in
the Building, other than a transfer for security purposes only, AND PROVIDED THE
TRANSFEREE AGREES WITH TENANT TO ASSUME AND PERFORM ALL OF LANDLORD'S
OBLIGATIONS UNDER THE LEASE FROM AND AFTER THE DATE OF TRANSFER, the transferor
shall be automatically relieved of any and all obligations and liabilities on
the part of Landlord accruing from and after the date of such transfer and such
transferee shall have no obligation or liability with respect to any matter
occurring or arising prior to the date of such transfer. Tenant agrees to attorn
to the transferee.
32. RIGHT TO PERFORM:
If Tenant shall fail to pay any sum of money, other than Rent and
Additional Rent required to be paid by it hereunder, or shall fail to perform
any other act on its part to be performed hereunder, and such failure shall
continue for ten (10) days after notice thereof by Landlord, Landlord may, but
shall not be obligated so to do, and without waiving or releasing Tenant from
any obligations of Tenant, make such payment or perform any such other act on
Tenant's part to be made or performed as provided in this Lease. Any sums paid
by Landlord hereunder shall be immediately due and payable by Tenant to Landlord
and Landlord shall have (in addition to any other right or remedy of Landlord)
the same rights and remedies in the event of the nonpayment of sums due under
this Section as in the case of default by Tenant in the payment of Rent.
33. QUIET ENJOYMENT:
Tenant shall have the right to the peaceable and quiet use and enjoyment of
the Premises, subject to the provisions of this Lease, as long as Tenant is not
in default hereunder.
34. CORPORATE AUTHORITY:
If Tenant is a corporation, each individual executing this Lease on behalf
of Tenant represents and warrants that he or she is duly authorized to execute
and deliver this Lease on behalf of Tenant, in accordance with a duly adopted
resolution of the Board of Directors of Tenant and in accordance with the bylaws
of Tenant, and that this Lease is binding upon Tenant in accordance with its
terms. At Landlord's request, Tenant shall, within thirty (30) days after
execution of this Lease, deliver to Landlord a certified copy of a resolution of
the Board of Directors of Tenant authorizing or ratifying the execution of this
Lease.
35. HAZARDOUS MATERIALS:
(a) TENANT OBLIGATIONS:
(i) Tenant shall not dispose of or otherwise allow the release of any
hazardous waste or materials in, on or under the Premises or the Building, or
any adjacent property, or in any improvements placed on the Premises. Tenant
represents and warrants to Landlord that Tenant's intended use of the Premises
does not involve the use, production, disposal or bringing on to the Premises of
any hazardous
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waste or materials, except only ordinary and general office supplies typically
used in first-class downtown office buildings and only in such quantities or
concentrations as allowed under applicable laws, rules and regulations. As used
in this Section, the term "hazardous waste or materials" includes any substance,
waste or material defined or designated as hazardous, toxic or dangerous (or any
similar term) pursuant to any statute, regulation, rule or ordinance now or
hereafter in effect. Tenant shall promptly comply with all such statutes,
regulations, rules and ordinances, and if Tenant fails to so comply Landlord
may, after reasonable prior notice to Tenant (except in case of emergency)
effect such compliance on behalf of Tenant. Tenant shall immediately reimburse
Landlord for all costs incurred in effecting such compliance.
(ii) Tenant agrees to indemnify and hold harmless Landlord against any
and all losses, liabilities, suits, obligations, fines, damages, judgements,
penalties, claims, charges, cleanup costs, remedial actions, costs and expenses
(including, without limitation, consultant fees, attorneys' fees and
disbursements) which may be imposed on, incurred or paid by Landlord, or
asserted in connection with (i) any misrepresentation, breach of warranty or
other default by Tenant under this Lease, or (ii) the acts or omissions of
Tenant, or any subtenant or other person for whom Tenant would otherwise be
liable, resulting in the release of any hazardous waste or materials.
(b) LANDLORD OBLIGATIONS:
Landlord represents to Tenant that, to the best of Landlord's knowledge, no
hazardous waste or materials have been generated, stored or disposed of on the
Premises other than in compliance with all applicable laws. Landlord will hold
Tenant harmless from and indemnify Tenant against any actual costs resulting
from any breach of this representation or resulting from the release of
hazardous waste or materials on the Premises by Landlord or its employees,
agents or contractors. Landlord shall not be responsible for any hazardous waste
or materials resulting from the acts of other tenants or occupants of the
Building or other third parties, or for consequential damages arising from the
presence of any hazardous wastes or materials on the Premises or in the
Building.
36. TELECOMMUNICATIONS LINES AND EQUIPMENT:
(a) LOCATION OF TENANT'S EQUIPMENT AND LANDLORD CONSENT:
(i) TENANT MAY INSTALL, MAINTAIN, REPLACE, REMOVE AND USE COMMUNICATIONS
AND COMPUTER WIRES, CABLES AND RELATED DEVICES NECESSARY FOR THE OPERATION OF
TENANT'S BUSINESS (COLLECTIVELY, THE "LINES") WHICH: CONNECT TO THE
INTRABUILDING NETWORK CABLING ("INC"); INTERCONNECT TENANT'S PREMISES ON
MULTIPLE FLOORS IN THE BUILDING; OR, IN THE ABSENCE OF INC ADEQUATE TO SERVICE
TENANT'S BUSINESS, CONNECT TO LINES PROVIDED BY TENANT'S COMMUNICATIONS SERVICE
PROVIDER, AND LANDLORD SHALL NOT ASSESS ANY SURCHARGES FOR ACCESS TO INSTALL
SUCH LINES OTHER THAN PURSUANT TO EXHIBIT F. LANDLORD SHALL PROVIDE SPACE
NECESSARY TO ACCOMMODATE THE LINES SUBJECT TO LANDLORD'S CONSENT RIGHTS AND ALL
OTHER RIGHTS SPECIFIED HEREIN. TENANT MUST OBTAIN LANDLORD'S PRIOR WRITTEN
CONSENT, WHICH CONSENT MAY NOT BE UNREASONABLY WITHHELD, FOR TENANT'S INITIAL
WIRING PLAN FOR EACH FLOOR OF TENANT'S PREMISES AND FOR TENANT'S INITIAL WORK
AND ALL SUBSEQUENT WORK IN THE BUILDING COMMON AREAS. TENANT SHALL LOCATE ALL
ELECTRONIC TELECOMMUNICATIONS AND SWITCHING EQUIPMENT WITHIN THE PREMISES.
TENANT'S REQUEST FOR CONSENT TO TENANT'S INITIAL WIRING PLAN FOR EACH FLOOR OF
TENANT'S PREMISES AND TO TENANT'S INITIAL AND SUBSEQUENT WORK IN THE BUILDING
COMMON AREAS SHALL CONTAIN DETAILED PLANS, DRAWINGS AND SPECIFICATIONS
IDENTIFYING ALL WORK TO BE PERFORMED, THE TIME SCHEDULE FOR COMPLETION OF THE
WORK, THE IDENTITY OF THE ENTITY THAT WILL PROVIDE SERVICE TO THE LINES AND THE
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<PAGE> 21
IDENTITY OF THE ENTITY THAT WILL PERFORM THE PROPOSED WORK (WHICH ENTITY SHALL
BE SUBJECT TO LANDLORD'S REASONABLE APPROVAL). LANDLORD SHALL HAVE FIVE (5)
BUSINESS DAYS IN WHICH TO EVALUATE THE REQUEST AFTER IT IS SUBMITTED BY TENANT.
(ii) LANDLORD MAY CONSIDER THE FOLLOWING FACTORS IN MAKING ITS
DETERMINATION OF CONSENT: (A) THE EXPERIENCE, QUALIFICATIONS AND PRIOR WORK
PRACTICE OF THE PROPOSED CONTRACTOR AND ITS ABILITY TO PROVIDE SUFFICIENT
INSURANCE COVERAGE FOR ITS WORK AT THE BUILDING; (B) WHETHER OR NOT THE PROPOSED
WORK WILL ADVERSELY AFFECT IN A MATERIAL WAY THE OPERATION OF ANY THEN EXISTING
LINES AT THE BUILDING; (C) WHETHER OR NOT TENANT IS IN DEFAULT OF ANY OF ITS
OBLIGATIONS UNDER THIS LEASE; (D) WHETHER TENANT'S PROPOSED SERVICE PROVIDER IS
WILLING TO ENTER INTO A TELECOMMUNICATIONS LICENSE AGREEMENT WITH LANDLORD,
INCLUDING, BUT NOT LIMITED TO, THE PAYMENT OF REASONABLE MONETARY COMPENSATION
FOR THE USE AND OCCUPATION OF THE BUILDING; AND (E) WHETHER THE WORK OR
RESULTING LINES WOULD ADVERSELY AFFECT IN A MATERIAL WAY THE STRUCTURAL
INTEGRITY OF THE LAND, BUILDING OR ANY SPACE IN THE BUILDING IN ANY MANNER. THE
PARTIES AGREE THAT THE RATES SHOWN ON EXHIBIT F ARE REASONABLE CHARGES FOR A
SERVICE PROVIDER'S USE AND OCCUPATION OF THE BUILDING. LANDLORD'S RATES SHALL
NOT EXCEED THE RATES GENERALLY CHARGED BY CLASS A BUILDINGS IN SEATTLE. TENANT
AND ITS SERVICE PROVIDERS SHALL NOT BE REQUIRED BY LANDLORD TO PAY COMPENSATION
FOR LINES WHICH INTERCONNECT TENANT'S PREMISES.
(iii) LANDLORD'S CONSENT TO TENANT'S INITIAL WIRING PLANS FOR EACH FLOOR OF
TENANT'S PREMISES, AND FOR TENANT'S WORK IN THE BUILDING COMMON AREAS OR
TENANT'S CONTRACTOR, OR REQUIREMENTS CONCERNING, THE LINES OR ANY EQUIPMENT
RELATED THERETO, THE PLANS, SPECIFICATIONS OR DESIGNS RELATED THERETO, THE
CONTRACTOR OR SUBCONTRACTOR, OR THE WORK PERFORMED HEREUNDER, SHALL NOT BE
DEEMED A WARRANTY AS TO THE ADEQUACY THEREOF, AND LANDLORD HEREBY DISCLAIMS ANY
RESPONSIBILITY OR LIABILITY FOR THE SAME. LANDLORD DISCLAIMS ALL RESPONSIBILITY
FOR THE CONDITION OR UTILITY OF THE LINES AND MAKES NO REPRESENTATION REGARDING
THE SUITABILITY OF THE LINES FOR TENANT'S INTENDED USE.
(iv) TENANT SHALL (A) PAY ALL COSTS IN CONNECTION WITH TENANT'S WORK ON THE
LINES; (B) COMPLY WITH ALL REQUIREMENTS AND CONDITIONS OF THIS SECTION; (C) USE,
MAINTAIN AND OPERATE THE LINES AND RELATED EQUIPMENT IN ACCORDANCE WITH AND
SUBJECT TO ALL LAWS GOVERNING THE LINES AND EQUIPMENT.
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TENANT SHALL FURTHER INSURE THAT (I) TENANT'S CONTRACTOR COMPLIES WITH THE
PROVISIONS OF THIS SECTION AND LANDLORD'S REASONABLE REQUIREMENTS GOVERNING ANY
WORK PERFORMED; (II) TENANT'S CONTRACTOR PROVIDES ALL INSURANCE REQUIRED BY
LANDLORD; (III) ANY WORK PERFORMED SHALL COMPLY WITH ALL LAWS; AND (IV) AS SOON
AS THE WORK IN COMPLETED, TENANT SHALL SUBMIT "AS-BUILT" DRAWINGS TO LANDLORD.
[INTENTIONALLY OMITTED]
(b) LANDLORD'S COMMON SPACES:
LANDLORD SHALL PROVIDE ALL ACCESS FOR THE LINES THROUGH BUILDING COMMON
SPACES NECESSARY FOR TENANT TO INSTALL THE LINES. LANDLORD WILL PERMIT TENANT
ACCESS TO THE LINES TO ALLOW TENANT TO INSTALL, INSPECT, MAINTAIN AND REPAIR THE
LINES IN THE COMMON AREAS, FOLLOWING REASONABLE NOTICE FROM TENANT TO LANDLORD'S
MANAGEMENT OFFICE AND SUBJECT TO LANDLORD'S CONSENT RIGHTS AND ALL OTHER RIGHTS
SPECIFIED HEREIN.
(c) INDEMNIFICATION:
In addition to any other indemnification obligations under this Lease,
Tenant shall indemnify and hold harmless Landlord and its employees, agents,
officers, and contractors from and against any and all claims, demands,
penalties, fines, liabilities, settlements, damages, costs or expenses
(including reasonable attorneys' fees) arising out of or in any way related to
the acts and omissions of Tenant, Tenant's officers, directors, employees,
agents, contractors, subcontractors, subtenants, and invitees with respect to:
(i) any Lines or equipment related thereto serving Tenant in the Building; (ii)
any personal injury (including wrongful death) or property damage arising out of
or related to any Lines or equipment related thereto serving Tenant in the
Building; (iii) any lawsuit brought or threatened, settlement reached, or
governmental order, fine or penalty relating to such Lines or equipment related
thereto; and (iv) any violations or Laws or demands of governmental authorities,
or any reasonable policies or requirement of Landlord, which are based upon or
in any way related to such Lines or equipment. This indemnification and hold
harmless agreement shall survive the termination of this Lease.
(d) LIMITATION OF LIABILITY:
Except to the extent arising from the negligence OF, BREACH OF THIS LEASE
BY, or willful misconduct of Landlord or Landlord's agents or employees,
Landlord shall have no liability for damages arising from, and Landlord does not
warrant that the Tenant's use of any Lines will be free from the following
(collectively called "Line Problems"): (I) any shortages, failures, variations,
interruptions, disconnections, loss or damage caused by the installation,
maintenance, or replacement, use or removal of Lines by or for other tenants or
occupants at the Building, by any failure of the environmental conditions or the
power supply for the Building to conform to any requirement of the Lines or any
associated equipment, or any other problems associated with any Lines by any
other cause; (ii) any failure of any Lines to satisfy Tenant's requirements; or
(iii) any eavesdropping or wire-tapping by unauthorized parties. Landlord in no
event shall be liable for damages by reason of loss of profits, business
interruption or other consequential damage arising from any Line Problems. Under
no circumstances shall any Line Problems be deemed an actual or constructive
eviction of Tenant, render Landlord liable to Tenant for abatement of Rent, or
relieve Tenant from performance of Tenant's obligations under this Lease.
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(e) ELECTROMAGNETIC FIELDS:
If Tenant at any time uses any equipment that may create an electromagnetic
field exceeding the normal insulation ratings of ordinary twisted pair riser
cable or cause radiation higher than normal background radiation, Landlord
reserves the right to require Tenant to appropriately insulate the Lines
therefore (including riser cables) to prevent such excessive electromagnetic
fields or radiation.
37. GENERAL:
(a) HEADINGS:
Titles to Sections of this Lease are not a part of this Lease and shall
have no effect upon the construction or interpretation of any part hereof.
(b) SUCCESSORS AND ASSIGNS:
All of the covenants, agreements, terms and conditions contained in this
Lease shall inure to and be binding upon the Landlord and Tenant and their
respective, successors and assigns.
(c) PAYMENT OF BROKERS:
Landlord shall pay the commissions due those real estate brokers or agents
named in Section 1(k). If Tenant has dealt with any other person or real estate
broker with respect to leasing or renting space in the Building, Tenant shall be
solely responsible for the payment of any fee due said person or firm and Tenant
shall indemnify and hold Landlord harmless against any liability in respect
thereto, including Landlord's attorneys' fees and costs in defense of any such
claim.
(d) ENTIRE AGREEMENT:
This Lease contains all covenants and agreements between Landlord and
Tenant relating in any manner to the leasing, use and occupancy of the Premises,
to Tenant's use of the Building and other matters set forth in this Lease. No
prior agreements or understanding pertaining to the same shall be valid or of
any force or effect and the covenants and agreements of this Lease shall not be
altered, modified or added to except in writing signed by Landlord and Tenant.
(e) SEVERABILITY:
Any provision of this Lease which shall be held invalid, void or illegal
shall in no way affect, impair or invalidate any other provision hereof and the
remaining provisions hereof shall nevertheless remain in full force and effect.
(f) OVERDUE PAYMENTS:
Tenant acknowledges that a late payment of Rent or other sums due hereunder
will cause Landlord to incur costs not contemplated by this Lease. Such costs
may include, but not be limited to, processing and accounting charges, and
penalties imposed by terms of any contracts, mortgages or deeds of trust
covering the Building. Therefore, in the event Tenant shall fail to pay any
Rent, Additional Rent or other sums payable by Tenant under this Lease for five
(5) days after TENANT'S RECEIPT OF LANDLORD'S WRITTEN NOTICE THAT such amount is
PAST due, then Tenant shall pay Landlord, as Additional Rent, a late charge
("Late Charge") equal to 5% of such amount owing, but not in excess of the
highest rate permitted by law. In addition to any Late Charges which may be
incurred hereunder, any Rent, Additional Rent or other sums payable by Tenant
under this Lease which are more than thirty (30) days past due, shall bear
interest at a rate equal to FOUR PERCENTAGE POINTS ABOVE THE PRIME RATE OF
INTEREST PUBLISHED OR ANNOUNCED FROM TIME TO TIME BY SEATTLE FIRST NATIONAL BANK
OR ITS SUCCESSOR per annum but not in excess of the highest lawful rate
permitted under applicable laws, calculated from the original due date thereof
to the date of payment ("Overdue Fee"); provided, however, the minimum Overdue
Fee shall be $100.00.
(g) FORCE MAJEURE:
Except for the payment of Rent, Additional Rent and other sums payable by
Tenant, time periods for Tenant's or Landlord's performance under any provisions
of this Lease shall be extended for periods of time during which Tenant's or
Landlord's performance is prevented due to circumstances beyond Tenant's or
Landlord's reasonable control.
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(h) RIGHT TO CHANGE PUBLIC SPACES:
Landlord shall have the right at any time, without thereby creating an
actual or constructive eviction or incurring any liability to Tenant therefor,
to change the arrangement or location of such of the following as are not
contained within the Premises or any part thereof: entrances, passageways, doors
and doorways, corridors, stairs, toilets and other like public service portions
of the Building. Nevertheless, in no event shall Landlord diminish any service,
change the arrangement or location of the elevators serving the Premises, make
any change which shall diminish the area of the Premises, make any change which
shall interfere with access to the Premises or change the character of the
Building from that of a first-class office building.
(I) GOVERNING LAW:
This Lease shall be governed by and construed in accordance with the laws
of the State of Washington.
(J) BUILDING DIRECTORY:
Landlord shall maintain in the lobby of Building a directory which shall
include the name of Tenant and any other names reasonably requested by Tenant in
proportion to the number of listings given to comparable tenants of the
Building.
(K) BUILDING NAME:
The Building shall be known by such name as Landlord may designate from
time to time.
###
IN WITNESS WHEREOF this Lease has been executed the day and year first above set
forth.
TENANT: PROGRESSIVE NETWORKS, INC.
a Washington corporation
By:/s/ Andrew F. Sharpless
-----------------------------------------
Its: SVP
-------------------------------------
TENANT CORPORATE ACKNOWLEDGMENT
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
THIS IS TO CERTIFY that on this 21st day of MARCH, 1996, before me, the
undersigned, a notary public in and for the state of WASHINGTON , duly
commissioned and sworn, personally appeared ANDREW F. SHARPLESS, to me known to
be the SENIOR VICE PRESIDENT respectively, of Progressive Networks, Inc., the
corporation that executed the within and foregoing instrument, and acknowledged
the said instrument to be the free and voluntary act and deed of said
corporation for the uses and purposes therein mentioned, and on oath stated that
they were authorized to execute said instrument, and that the seal affixed, if
any, is the corporate seal of said corporation.
WITNESS my hand and official seal the day and year in this certificate
first above written.
Signature /s/ JUDITH K. HOYLE
--------------------------------------------
Printed Name JUDITH K. HOYLE
---------------------------------------------
Notary public in and for the state of WASHINGTON,
residing at SEATTLE
My appointment expires 11-6-99
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<PAGE> 25
LANDLORD: WRIGHT RUNSTAD PROPERTIES L.P.
a Delaware limited partnership
By: WRIGHT RUNSTAD ASSET MANAGEMENT L.P.,
a Washington limited partnership
By: WRAM, Inc.
a Washington corporation
By: /s/ H. JON RUNSTAD
-----------------------------------
Its H. JON RUNSTAD
-----------------------------------
CHAIRMAN AND
CHEIF EXECUTIVE OFFICER
LANDLORD ACKNOWLEDGMENT
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
THIS IS TO CERTIFY that I know or have satisfactory evidence that H. JON
RUNSTAD, is the person who appeared before me, and said person acknowledged that
he signed this instrument, on oath stated that he was authorized to execute the
instrument and acknowledged it as the CHAIRMAN AND CEO of WRAM, Inc., a
corporation, to me known to be the general partner of WRIGHT RUNSTAD ASSET
MANAGEMENT L.P., a limited partnership, to me known to be the general partner of
WRIGHT RUNSTAD PROPERTIES L.P., the limited partnership that executed the within
and foregoing instrument, and acknowledged the said instrument to be the free
and voluntary act and deed of said corporation and partnerships for the uses and
purposes therein mentioned, and on oath stated that said individual was
authorized to execute said instrument.
WITNESS my hand and official seal this 22nd day of March, 1996.
Signature /s/ CORLISS J. PERDAEMS
------------------------------------------------
Printed Name CORLISS J. PERDAEMS
--------------------------------------------
Notary public in and for the state of Washington,
residing at SEATTLE
--------------------------------------------
My appointment expires 3/29/96
----------------------------------
22