Washington-Seattle-701 Fifth Avenue Lease - EOP-Columbia Center LLC and Avenue A Inc.
BANK OF AMERICA TOWER
SEATTLE, WASHINGTON
OFFICE LEASE AGREEMENT
BETWEEN
EOP-COLUMBIA CENTER, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY
("LANDLORD")
AND
AVENUE A, INC., a Washington corporation
("TENANT")
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TABLE OF CONTENTS
I. Basic Lease Information................................................. 1
II. Lease Grant............................................................. 2
III. Possession.............................................................. 2
IV. Rent.................................................................... 3
V Compliance with Laws; Use............................................... 7
VI. Security Deposit........................................................ 7
VII. Services to be Furnished by Landlord.................................... 7
VIII. Leasehold Improvements.................................................. 8
IX. Repairs and Alterations................................................. 9
X. Use of Electrical Services by Tenant.................................... 10
XI. Entry by Landlord....................................................... 10
XII. Assignment and Subletting............................................... 10
XIII. Liens................................................................... 12
XIV. Indemnity and Waiver of Claims.......................................... 12
XV. Insurance............................................................... 12
XVI. Subrogation............................................................. 13
XVII. Casualty Damage......................................................... 13
XVIII. Condemnation............................................................ 14
XIX. Events of Default....................................................... 14
XX. Remedies................................................................ 15
XXI. Limitation of Liability................................................. 16
XXII. No Waiver............................................................... 16
XXIII. Quiet Enjoyment......................................................... 16
XXIV. Relocation.............................................................. 16
XXV. Holding Over............................................................ 16
XXVI. Subordination to Mortgages; Estoppel Certificate........................ 17
XXVII. Attorneys' Fees......................................................... 17
XXVIII Notice.................................................................. 17
XXIX. Excepted Rights......................................................... 17
XXX. Surrender of Premises................................................... 18
XXXI. Miscellaneous........................................................... 18
XXXII. Entire Agreement........................................................ 20
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OFFICE LEASE AGREEMENT
This Office Lease Agreement (the "Lease") is made and entered into as of
the _________________ day of __________________, by and between EOP-COLUMBIA
CENTER, L.L.C., a Delaware limited liability company ("Landlord") and AVENUE A,
INC., a Washington corporation ("Tenant").
I. Basic Lease Information.
A. "Building" shall mean the building located at 701 Fifth Avenue,
Seattle, Washington 98104, and commonly known as Bank of America
Tower.
B. "Rentable Square Footage of the Building" is deemed to be 1,468,858
square feet.
C. "Premises" shall mean the area shown on Exhibit A to this Lease. The
Premises are located on floor 26 and known as suite number 2600. The
"Rentable Square Footage of the Premises" is deemed to be 23,751
square feet.
D. "Base Rent":
Annual Rate Per Annual Monthly
Period Rentable Square Foot Base Rent Base Rent
------ -------------------- --------- ---------
02/23/00 - 02/29/00 $27.50 $ 1,876.88
03/01/00 - 12/31/00 $27.50 $653,152.50 $54,429.38
E. "Tenant's Pro Rata Share": 1.6170%.
F. "Base Year" for Taxes: 2000; "Base Year" for Expenses: 2000.
G. "Term": A period of 10 months and 7 days. The Term shall commence on
February 23, 2000 (the "Commencement Date") and, unless terminated
early in accordance with this Lease, end on December 31, 2000 (the
"Termination Date").
H. Tenant allowance(s): None.
I. "Security Deposit": $54,429.38.
J. "Guarantor(s)": None.
K. "Broker(s)": Wright Runstad Associates Limited Partnership and
Washington Partners, Inc.
L. "Permitted Use": Data center for internet advertising business,
including general office use.
M. "Notice Addresses":
Tenant:
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Prior to, on and after the Commencement Date, notices shall be sent to
Tenant at the following address:
Avenue A, Inc.
The Smith Tower
506 Second Avenue, 9th Floor
Seattle, WA 98104
Attention: V.P., Finance and Administration
Phone #: (206) 521-8800
Fax #: (206) 521-8808
Landlord: With a copy to:
EOP-Columbia Center, L.L.C. Equity Office Properties
c/o Equity Office Properties Two North Riverside Plaza
701 Fifth Avenue, Suite 4040 Suite 2200
Seattle, Washington 98104-7089 Chicago, Illinois 60606
Attention: Building Manager Attention: West Regional Counsel
Rent (defined in Section IV.A) is payable to the order of Equity Office
Properties at the following address: P. O. Box 931753, Atlanta, Georgia
31193-1753.
N. "Business Day(s)" are Monday through Friday of each week, exclusive of
New Year's Day, President's Day, Memorial Day, Independence Day, Labor
Day, Thanksgiving Day and Christmas Day ("Holidays"). Landlord may
designate additional Holidays, provided that the additional Holidays
are commonly recognized by other office buildings in the area where
the Building is located.
O. "Landlord Work" means the work, if any, that Landlord is obligated to
perform in the Premises pursuant to a separate work letter agreement
(the "Work Letter"), if any, attached as Exhibit D. If a Work Letter
is not attached to this Lease or if an attached Work Letter does not
require Landlord to perform any work, the occurrence of the
Commencement Date shall not be conditioned upon the performance of
work by Landlord and, accordingly, Section III.A. shall not be
applicable to the determination of the Commencement Date.
P. "Law(s)" means all applicable statutes, codes, ordinances, orders,
rules and regulations of any municipal or governmental entity.
Q. "Normal Business Hours" for the Building are 9:00 a.m. to 6:00 p.m. on
Business Days and 9:00 a.m. to 1:00 p.m. on Saturdays.
R. "Property" means the Building and the parcel(s) of land on which it is
located and, at Landlord's discretion, the Building garage and other
improvements serving the Building, if any, and the parcel(s) of land
on which they are located.
II. Lease Grant.
Landlord leases the Premises to Tenant and Tenant leases the Premises from
Landlord, together with the right in common with others to use any portions of
the Property that are designated by Landlord for the common use of tenants and
others, such as sidewalks, unreserved parking areas, common corridors, elevator
foyers, restrooms, vending areas and lobby areas (the "Common Areas").
III. Possession.
A. Intentionally Omitted.
B. Subject to Landlord's obligations under Section IX.B., the Premises
are accepted by Tenant in "as is" condition and configuration. By
taking possession of the Premises, Tenant agrees that the Premises are
in good order and satisfactory condition, and that there are no
representations or warranties by Landlord regarding the condition of
the Premises or the Building. If Landlord is delayed
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delivering possession of the Premises or any other space due to the
holdover or unlawful possession of such space by any party, Landlord
shall use reasonable efforts to obtain possession of the space. The
Commencement Date shall be postponed until the date Landlord delivers
possession of the Premises to Tenant free from occupancy by any party,
and the Termination Date, at the option of Landlord, may be postponed
by an equal number of days. Notwithstanding the foregoing, if the
Commencement Date does not occur by the Outside Possession Date (as
hereinafter defined), Tenant, as its sole remedy, may terminate this
Lease by giving Landlord written notice of termination on or before
the earlier to occur of: (i) five (5) Business Days after the Outside
Possession Date; and (ii) the Commencement Date. In such event, this
Lease shall be deemed null and void and of no further force and effect
and Landlord shall promptly refund any prepaid rent and Security
Deposit previously advanced by Tenant under this Lease and, so long as
Tenant has not previously defaulted under any of its obligations, the
parties hereto shall have no further responsibilities or obligations
to each other with respect to this Lease. The "Outside Possession
Date" shall for the purposes of this Lease be the date which is 270
days following the last to occur of (a) payment by Tenant to Landlord
of the Security Deposit, if any; (b) payment by Tenant to Landlord of
the installment of Base Rent for the first full calendar month of the
Term; and (c) execution of the Lease by both Landlord and Tenant.
Notwithstanding anything herein to the contrary, if Landlord
determines that it will be unable to cause the Commencement Date to
occur by the Outside Possession Date, Landlord shall have the right to
immediately provide Tenant with written notice (the "Outside Extension
Notice") of such inability, which Outside Extension Notice shall set
forth the date on which Landlord reasonably believes that the
Commencement Date will occur. Upon receipt of the Outside Extension
Notice, Tenant shall have the right to terminate this Lease by
providing written notice of termination to Landlord within five (5)
Business Days after the date of the Outside Extension Notice. In the
event that Tenant does not terminate this Lease within such five (5)
Business Day period, the Outside Possession Date shall automatically
be amended to be the date set forth in Landlord's Outside Extension
Notice.
C. If Tenant takes possession of the Premises before the Commencement
Date, such possession shall be subject to the terms and conditions of
this Lease and Tenant shall pay Rent (defined in Section IV.A.) to
Landlord for each day of possession before the Commencement Date.
However, except for the cost of services requested by Tenant (e.g.
freight elevator usage), Tenant shall not be required to pay Rent for
any days of possession before the Commencement Date during which
Tenant, with the approval of Landlord, is in possession of the
Premises for the sole purpose of performing improvements or installing
furniture, telephone system, computer cabling, equipment or other
personal property.
IV. Rent.
A. Payments. As consideration for this Lease, Tenant shall pay Landlord,
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without any setoff or deduction, the total amount of Base Rent and
Additional Rent due for the Term. "Additional Rent" means all sums
(exclusive of Base Rent) that Tenant is required to pay Landlord.
Additional Rent and Base Rent are sometimes collectively referred to
as "Rent". Tenant shall pay and be liable for all rental, sales and
use taxes (but excluding income taxes), if any, imposed upon or
measured by Rent under applicable Law. Base Rent and recurring
monthly charges of Additional Rent shall be due and payable in advance
on the first day of each calendar month without notice or demand,
provided that the installment of Base Rent for the first full calendar
month of the Term shall be payable upon the execution of this Lease by
Tenant. All other items of Rent shall be due and payable by Tenant on
or before 30 days after billing by Landlord. All payments of Rent
shall be by good and sufficient check or by other means (such as
automatic debit or electronic transfer) acceptable to Landlord. If
Tenant fails to pay any item or installment of Rent when due, Tenant
shall pay Landlord an administration fee equal to 5% of the past due
Rent, provided that Tenant shall be entitled to a grace period of 5
days for the first 2 late payments of Rent in a given calendar year.
If the Term commences on a day other than the first day of a calendar
month or terminates on a day other than the last day of a calendar
month, the monthly Base Rent and Tenant's Pro Rata Share of any Tax
Excess (defined in Section IV.B.) or Expense Excess (defined in
Section IV.B.) for the
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month shall be prorated based on the number of days in such calendar
month. Landlord's acceptance of less than the correct amount of Rent
shall be considered a payment on account of the earliest Rent due. No
endorsement or statement on a check or letter accompanying a check or
payment shall be considered an accord and satisfaction, and either
party may accept the check or payment without prejudice to that
party's right to recover the balance or pursue other available
remedies. Tenant's covenant to pay Rent is independent of every other
covenant in this Lease.
B. Expense Excess and Tax Excess. Tenant shall pay Tenant's Pro Rata
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Share of the amount, if any, by which Expenses (defined in Section
IV.C.) for each calendar year during the Term exceed Expenses for the
Base Year (the "Expense Excess") and also the amount, if any, by which
Taxes (defined in Section IV.D.) for each calendar year during the
Term exceed Taxes for the Base Year (the "Tax Excess"). If Expenses
and/or Taxes in any calendar year decrease below the amount of
Expenses and/or Taxes for the Base Year, Tenant's Pro Rata Share of
Expenses and/or Taxes, as the case may be, for that calendar year
shall be $0. Landlord shall provide Tenant with a good faith estimate
of the Expense Excess and of the Tax Excess for each calendar year
during the Term. On or before the first day of each month, Tenant
shall pay to Landlord a monthly installment equal to one-twelfth of
Tenant's Pro Rata Share of Landlord's estimate of the Expense Excess
and one-twelfth of Tenant's Pro Rata Share of Landlord's estimate of
the Tax Excess. If Landlord determines that its good faith estimate of
the Expense Excess or of the Tax Excess was incorrect by a material
amount, Landlord may provide Tenant with a revised estimate upon
thirty (30) days prior written notice. Thereafter, Tenant's monthly
payments shall be based upon the revised estimate. If Landlord does
not provide Tenant with an estimate of the Expense Excess or of the
Tax Excess by January 1 of a calendar year, Tenant shall continue to
pay monthly installments based on the previous year's estimate(s)
until Landlord provides Tenant with the new estimate. Upon delivery
of the new estimate, an adjustment shall be made for any month for
which Tenant paid monthly installments based on the previous year's
estimate(s). Tenant shall pay Landlord the amount of any underpayment
within 30 days after receipt of the new estimate. Any overpayment
shall be refunded to Tenant within 30 days or credited against the
next due future installment(s) of Additional Rent.
As soon as is practical following the end of each calendar year,
Landlord shall furnish Tenant with a statement of the actual Expenses
and Expense Excess and the actual Taxes and Tax Excess for the prior
calendar year. If the estimated Expense Excess and/or estimated Tax
Excess for the prior calendar year is more than the actual Expense
Excess and/or actual Tax Excess, as the case may be, for the prior
calendar year, Landlord shall apply any overpayment by Tenant against
Additional Rent due or next becoming due, provided if the Term expires
before the determination of the overpayment, Landlord shall refund any
overpayment to Tenant after first deducting the amount of Rent due.
If the estimated Expense Excess and/or estimated Tax Excess for the
prior calendar year is less than the actual Expense Excess and/or
actual Tax Excess, as the case may be, for such prior year, Tenant
shall pay Landlord, within 30 days after its receipt of the statement
of Expenses and/or Taxes, any underpayment for the prior calendar
year.
C. Expenses Defined. "Expenses" means all costs and expenses incurred in
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each calendar year in connection with operating, maintaining,
repairing, and managing the Building and the Property, including, but
not limited to:
1. Labor costs, including, wages, salaries, social security and
employment taxes, medical and other types of insurance, uniforms,
training, and retirement and pension plans.
2. Management fees, the cost of equipping and maintaining a
management office, accounting and bookkeeping services, legal
fees not attributable to leasing or collection activity, and
other administrative costs. Landlord, by itself or through an
affiliate, shall have the right to directly perform or provide
any services under this Lease (including management services),
provided that the cost of any such services shall not exceed the
cost that
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would have been incurred had Landlord entered into an arms-length
contract for such services with an unaffiliated entity of
comparable skill and experience.
3. The cost of services, including amounts paid to service providers
and the rental and purchase cost of parts, supplies, tools and
equipment.
4. Premiums and deductibles paid by Landlord for insurance,
including workers compensation, fire and extended coverage,
earthquake, general liability, rental loss, elevator, boiler and
other insurance customarily carried from time to time by
reasonably prudent owners of comparable office buildings.
5. Electrical Costs (defined below) and charges for water, gas,
steam and sewer, but excluding those charges for which Landlord
is reimbursed by tenants. "Electrical Costs" means: (a) charges
paid by Landlord for electricity; (b) costs incurred in
connection with an energy management program for the Property;
and (c) if and to the extent permitted by Law, a reasonable fee
for the services provided by Landlord in connection with the
selection of utility companies and the negotiation and
administration of contracts for electricity, provided that such
fee shall not exceed 50% of any savings obtained by Landlord.
Electrical Costs shall be adjusted as follows: (i) amounts
received by Landlord as reimbursement for above standard
electrical consumption shall be deducted from Electrical Costs;
(ii) the cost of electricity incurred to provide overtime HVAC to
specific tenants (as reasonably estimated by Landlord) shall be
deducted from Electrical Costs; and (iii) if Tenant is billed
directly for the cost of building standard electricity to the
Premises as a separate charge in addition to Base Rent, the cost
of electricity to individual tenant spaces in the Building shall
be deducted from Electrical Costs.
6. The amortized cost of capital improvements (as distinguished from
replacement parts or components installed in the ordinary course
of business) made to the Property which are: (a) performed
primarily to reduce operating expense costs or otherwise improve
the operating efficiency of the Property; or (b) required to
comply with any Laws that are enacted, or first interpreted to
apply to the Property, after the date of this Lease. The cost of
capital improvements shall be amortized by Landlord over the
lesser of the Payback Period (defined below) or 5 years. The
amortized cost of capital improvements may, at Landlord's
option, include actual or imputed interest at the rate that
Landlord would reasonably be required to pay to finance the cost
of the capital improvement. "Payback Period" means the
reasonably estimated period of time that it takes for the cost
savings resulting from a capital improvement to equal the total
cost of the capital improvement.
If Landlord incurs Expenses for the Property together with one or more
other buildings or properties, whether pursuant to a reciprocal
easement agreement, common area agreement or otherwise, the shared
costs and expenses shall be equitably prorated and apportioned between
the Property and the other buildings or properties. Expenses shall
not include: the cost of capital improvements (except as set forth
above); depreciation; interest (except as provided above for the
amortization of capital improvements); principal payments of mortgage
and other non-operating debts of Landlord; the cost of repairs or
other work to the extent Landlord is reimbursed by insurance or
condemnation proceeds; costs in connection with leasing space in the
Building, including brokerage commissions, or enforcement of lease
agreements; lease concessions, including rental abatements and
construction allowances, granted to specific tenants; costs incurred
in connection with the sale, financing or refinancing of the Building;
fines, interest and penalties incurred due to the late payment of
Taxes (defined in Section IV.D) or Expenses; organizational expenses
associated with the creation and operation of the entity which
constitutes Landlord; or any penalties or damages that Landlord pays
to Tenant under this Lease or to other tenants in the Building under
their respective leases. If the Building is not at least 95% occupied
during any calendar year or if Landlord is not supplying services to
at least 95% of the total Rentable Square Footage of the Building at
any time
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during a calendar year, Expenses shall, at Landlord's option, be
determined as if the Building had been 95% occupied and Landlord had
been supplying services to 95% of the Rentable Square Footage of the
Building during that calendar year. If Tenant pays for its Pro Rata
Share of Expenses based on increases over a "Base Year" and Expenses
for a calendar year are determined as provided in the prior sentence,
Expenses for the Base Year shall also be determined as if the Building
had been 95% occupied and Landlord had been supplying services to 95%
of the Rentable Square Footage of the Building. The extrapolation of
Expenses under this Section shall be performed by appropriately
adjusting the cost of those components of Expenses that are impacted
by changes in the occupancy of the Building.
D. Taxes Defined. "Taxes" shall mean: (1) all real estate taxes and
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other assessments on the Building and/or Property, including, but not
limited to, assessments for special improvement districts and building
improvement districts, taxes and assessments levied in substitution or
supplementation in whole or in part of any such taxes and assessments
and the Property's share of any real estate taxes and assessments
under any reciprocal easement agreement, common area agreement or
similar agreement as to the Property; (2) all personal property taxes
for property that is owned by Landlord and used in connection with the
operation, maintenance and repair of the Property; and (3) all costs
and fees incurred in connection with seeking reductions in any tax
liabilities described in (1) and (2), including, without limitation,
any costs incurred by Landlord for compliance, review and appeal of
tax liabilities. Without limitation, Taxes shall not include any
income, capital levy, franchise, capital stock, gift, estate or
inheritance tax. If an assessment is payable in installments, Taxes
for the year shall include the amount of the installment and any
interest due and payable during that year. For all other real estate
taxes, Taxes for that year shall, at Landlord's election, include
either the amount accrued, assessed or otherwise imposed for the year
or the amount due and payable for that year, provided that Landlord's
election shall be applied consistently throughout the Term. If a
change in Taxes is obtained for any year of the Term during which
Tenant paid Tenant's Pro Rata Share of any Tax Excess, then Taxes for
that year will be retroactively adjusted and Landlord shall provide
Tenant with a credit, if any, based on the adjustment. Likewise, if a
change is obtained for Taxes for the Base Year, Taxes for the Base
Year shall be restated and the Tax Excess for all subsequent years
shall be recomputed. Tenant shall pay Landlord the amount of Tenant's
Pro Rata Share of any such increase in the Tax Excess within 30 days
after Tenant's receipt of a statement from Landlord.
E. Audit Rights. Tenant may, within 90 days after receiving Landlord's
------------
statement of Expenses, give Landlord written notice ("Review Notice")
that Tenant intends to review Landlord's records of the Expenses for
that calendar year. Within a reasonable time after receipt of the
Review Notice, Landlord shall make all pertinent records available for
inspection that are reasonably necessary for Tenant to conduct its
review. If any records are maintained at a location other than the
office of the Building, Tenant may either inspect the records at such
other location or pay for the reasonable cost of copying and shipping
the records. If Tenant retains an agent to review Landlord's records,
the agent must be with a licensed CPA firm. Tenant shall be solely
responsible for all costs, expenses and fees incurred for the audit.
Within 60 days after the records are made available to Tenant, Tenant
shall have the right to give Landlord written notice (an "Objection
Notice") stating in reasonable detail any objection to Landlord's
statement of Expenses for that year. If Tenant fails to give Landlord
an Objection Notice within the 60 day period or fails to provide
Landlord with a Review Notice within the 90 day period described
above, Tenant shall be deemed to have approved Landlord's statement of
Expenses and shall be barred from raising any claims regarding the
Expenses for that year. If Tenant provides Landlord with a timely
Objection Notice, Landlord and Tenant shall work together in good
faith to resolve any issues raised in Tenant's Objection Notice. If
Landlord and Tenant determine that Expenses for the calendar year are
less than reported, Landlord shall provide Tenant with a credit
against the next installment of Rent in the amount of the overpayment
by Tenant. Likewise, if Landlord and Tenant determine that Expenses
for the calendar year are greater than reported, Tenant shall pay
Landlord the amount of any underpayment within
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30 days. In addition, if Landlord and Tenant determine that Expenses
were less than stated by five percent (5%), then Landlord will pay the
reasonable cost of such review by Tenant. The records obtained by
Tenant shall be treated as confidential. In no event shall Tenant be
permitted to examine Landlord's records or to dispute any statement of
Expenses unless Tenant has paid and continues to pay all Rent when
due.
V. Compliance with Laws; Use.
The Premises shall be used only for the Permitted Use and for no other use
whatsoever. Tenant shall not use or permit the use of the Premises for any
purpose which is illegal, dangerous to persons or property or which, in
Landlord's reasonable opinion, unreasonably disturbs any other tenants of the
Building or interferes with the operation of the Building. Tenant shall comply
with all Laws, including the Americans with Disabilities Act, regarding the
operation of Tenant's business and the use, condition, configuration and
occupancy of the Premises. Landlord, at its sole cost and expense (except to
the extent properly included in Expenses), shall be responsible for correcting
any violations of Title III of the Americans with Disabilities Act with respect
to the Premises (so long as such violation existed on the Commencement Date) and
the Common Areas of the Building, provided that Landlord's obligation with
respect to the Premises shall be limited to violations that arise out of the
condition of the Premises prior to the commencement of any Alterations (as
hereinafter defined) and prior to the installation of any furniture, equipment
and other personal property of Tenant. Notwithstanding the forgoing, Landlord
shall have the right to contest any alleged violation in good faith, including,
without limitation, the right to apply for and obtain a waiver or deferment of
compliance, the right to appeal any decision, judgments or rulings to the
fullest extent permitted by law. Landlord, after the exhaustion of any and all
rights to appeal or contest, will make all repairs, additions, alterations or
improvements necessary to comply with the terms of any final order or judgment.
Notwithstanding the foregoing, Tenant, not Landlord, shall be responsible for
the correction of any violations that arise out of or in connection with any
claims brought under any provision of the Americans with Disabilities Act other
than Title III, the specific nature of Tenant's business in the Premises (other
than general office use), the acts or omissions of Tenant, its agents, employees
or contractors, Tenant's arrangement of any furniture, equipment or other
property in the Premises, any repairs, alterations, additions or improvements
performed by or on behalf of Tenant and any design or configuration of the
Premises specifically requested by Tenant after being informed that such design
or configuration may not be in strict compliance with the ADA. Tenant, within
10 days after receipt, shall provide Landlord with copies of any notices it
receives regarding a violation or alleged violation of any Laws. Tenant shall
comply with the rules and regulations of the Building attached as Exhibit B and
such other reasonable rules and regulations adopted by Landlord from time to
time. Tenant shall also cause its agents, contractors, subcontractors,
employees, customers, and subtenants to comply with all rules and regulations.
Landlord shall not knowingly discriminate against Tenant in Landlord's
enforcement of the rules and regulations.
VI. Security Deposit.
The Security Deposit shall be delivered to Landlord upon the execution of
this Lease by Tenant and shall be held by Landlord without liability for
interest (unless required by Law) as security for the performance of Tenant's
obligations. The Security Deposit is not an advance payment of Rent or a
measure of Tenant's liability for damages. Landlord may, from time to time,
without prejudice to any other remedy, use all or a portion of the Security
Deposit to satisfy past due Rent or to cure any uncured default by Tenant. If
Landlord uses the Security Deposit, Tenant shall on demand restore the Security
Deposit to its original amount. Landlord shall return any unapplied portion of
the Security Deposit to Tenant within 45 days after the later to occur of: (1)
the determination of Tenant's Pro Rata Share of any Tax Excess and Expense
Excess for the final year of the Term; (2) the date Tenant surrenders possession
of the Premises to Landlord in accordance with this Lease; or (3) the
Termination Date. If Landlord transfers its interest in the Premises, Landlord
may assign the Security Deposit to the transferee and, following the assignment,
Landlord shall have no further liability for the return of the Security Deposit.
Landlord shall not be required to keep the Security Deposit separate from its
other accounts.
VII. Services to be Furnished by Landlord.
A. Landlord agrees to furnish Tenant with the following services: (1)
Water service for use in the lavatories on each floor on which the
Premises are located;
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(2) Heat and air conditioning in season during Normal Business Hours,
at such temperatures and in such amounts as are standard for
comparable buildings or as required by governmental authority. Tenant,
upon such advance notice as is reasonably required by Landlord, shall
have the right to receive HVAC service during hours other than Normal
Business Hours. Tenant shall pay Landlord the standard charge for the
additional service as reasonably determined by Landlord from time to
time; (3) Maintenance and repair of the Property as described in
Section IX.B.; (4) Janitor service on Business Days. If Tenant's use,
floor covering or other improvements require special services in
excess of the standard services for the Building, Tenant shall pay the
additional cost attributable to the special services; (5) Elevator
service; (6) Electricity to the Premises for general office use, in
accordance with and subject to the terms and conditions in Article X;
and (7) such other services as Landlord reasonably determines are
necessary or appropriate for the Property.
B. Landlord's failure to furnish, or any interruption or termination of,
services due to the application of Laws, the failure of any equipment,
the performance of repairs, improvements or alterations, or the
occurrence of any event or cause beyond the reasonable control of
Landlord (a "Service Failure") shall not render Landlord liable to
Tenant, constitute a constructive eviction of Tenant, give rise to an
abatement of Rent, nor relieve Tenant from the obligation to fulfill
any covenant or agreement. However, if the Premises, or a material
portion of the Premises, is made untenantable for a period in excess
of 3 consecutive Business Days as a result of the Service Failure,
then Tenant, as its sole remedy, shall be entitled to receive an
abatement of Rent payable hereunder during the period beginning on the
4th consecutive Business Day of the Service Failure and ending on the
day the service has been restored. If the entire Premises has not
been rendered untenantable by the Service Failure, the amount of
abatement that Tenant is entitled to receive shall be prorated based
upon the percentage of the Premises rendered untenantable and not used
by Tenant. In no event, however, shall Landlord be liable to Tenant
for any loss or damage, including the theft of Tenant's Property
(defined in Article XV), arising out of or in connection with the
failure of any security services, personnel or equipment.
VIII. Leasehold Improvements.
All improvements to the Premises (collectively, "Leasehold Improvements")
shall be owned by Landlord and shall remain upon the Premises without
compensation to Tenant. However, Landlord, by written notice to Tenant within 30
days prior to the Termination Date, may require Tenant to remove, at Tenant's
expense: (1) Cable (defined in Section IX.A) installed by or for the exclusive
benefit of Tenant and located in the Premises or other portions of the Building;
and (2) any Leasehold Improvements that are performed by or for the benefit of
Tenant and, in Landlord's reasonable judgment, are of a nature that would
require removal and repair costs that are materially in excess of the removal
and repair costs associated with standard office improvements (collectively
referred to as "Required Removables"). Without limitation, it is agreed that
Required Removables include internal stairways, raised floors, personal baths
and showers, vaults, rolling file systems and structural alterations and
modifications of any type. The Required Removables designated by Landlord shall
be removed by Tenant before the Termination Date, provided that upon prior
written notice to Landlord, Tenant may remain in the Premises for up to 5 days
after the Termination Date for the sole purpose of removing the Required
Removables. Tenant's possession of the Premises shall be subject to all of the
terms and conditions of this Lease, including the obligation to pay Rent on a
per diem basis at the rate in effect for the last month of the Term. Tenant
shall repair damage caused by the installation or removal of Required
Removables. If Tenant fails to remove any Required Removables or perform
related repairs in a timely manner, Landlord, at Tenant's expense, may remove
and dispose of the Required Removables and perform the required repairs.
Tenant, within 30 days after receipt of an invoice, shall reimburse Landlord for
the reasonable costs incurred by Landlord. Notwithstanding the foregoing,
Tenant, at the time it requests approval for a proposed Alteration (defined in
Section IX.C), may request in writing that Landlord advise Tenant whether the
Alteration or any portion of the Alteration will be designated as a Required
Removable. Within 10 days after receipt of Tenant's request, Landlord shall
advise Tenant in writing as to which portions of the Alteration, if any, will be
considered to be Required Removables.
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IX. Repairs and Alterations.
A. Tenant's Repair Obligations. Tenant shall, at its sole cost and
---------------------------
expense, promptly perform all maintenance and repairs to the Premises
that are not Landlord's express responsibility under this Lease, and
shall keep the Premises in good condition and repair, reasonable wear
and tear excepted. Tenant's repair obligations include, without
limitation, repairs to: (1) floor covering; (2) interior partitions;
(3) doors; (4) the interior side of demising walls; (5) electronic,
phone and data cabling and related equipment (collectively, "Cable")
that is installed by or for the exclusive benefit of Tenant and
located in the Premises or other portions of the Building; (6)
supplemental air conditioning units, private showers and kitchens,
including hot water heaters, plumbing, and similar facilities serving
Tenant exclusively; and (7) Alterations performed by contractors
retained by Tenant, including related HVAC balancing. All work shall
be performed in accordance with the rules and procedures described in
Section IX.C. below. If Tenant fails to make any repairs to the
Premises for more than 15 days after notice from Landlord (although
notice shall not be required if there is an emergency), Landlord may
make the repairs, and Tenant shall pay the reasonable cost of the
repairs to Landlord within 30 days after receipt of an invoice,
together with an administrative charge in an amount equal to 10% of
the cost of the repairs.
B. Landlord's Repair Obligations. Landlord shall keep and maintain in
------------------------------
good repair and working order and make repairs to and perform
maintenance upon: (1) structural elements of the Building; (2)
mechanical (including HVAC), electrical, plumbing and fire/life safety
systems serving the Building in general; (3) Common Areas; (4) the
roof of the Building; (5) exterior windows of the Building; and (6)
elevators serving the Building. Landlord shall promptly make repairs
(considering the nature and urgency of the repair) for which Landlord
is responsible.
C. Alterations. Tenant shall not make alterations, additions or
------------
improvements to the Premises or install any Cable in the Premises or
other portions of the Building (collectively referred to as
"Alterations") without first obtaining the written consent of Landlord
in each instance, which consent shall not be unreasonably withheld or
delayed. However, Landlord's consent shall not be required for any
Alteration that satisfies all of the following criteria (a "Cosmetic
Alteration"): (1) is of a cosmetic nature such as painting,
wallpapering, hanging pictures and installing carpeting; (2) is not
visible from the exterior of the Premises or Building; (3) will not
affect the systems or structure of the Building; and (4) does not
require work to be performed inside the walls or above the ceiling of
the Premises. However, even though consent is not required, the
performance of Cosmetic Alterations shall be subject to all the other
provisions of this Section IX.C. Prior to starting work, Tenant shall
furnish Landlord with plans and specifications reasonably acceptable
to Landlord; names of contractors reasonably acceptable to Landlord
(provided that Landlord may designate specific contractors with
respect to Building systems); copies of contracts; necessary permits
and approvals; evidence of contractor's and subcontractor's insurance
in amounts reasonably required by Landlord; and any security for
performance that is reasonably required by Landlord. Changes to the
plans and specifications must also be submitted to Landlord for its
approval. Alterations shall be constructed in a good and workmanlike
manner using materials of a quality that is at least equal to the
quality designated by Landlord as the minimum standard for the
Building. Landlord may designate reasonable rules, regulations and
procedures for the performance of work in the Building and, to the
extent reasonably necessary to avoid disruption to the occupants of
the Building, shall have the right to designate the time when
Alterations may be performed. Tenant shall reimburse Landlord within
30 days after receipt of an invoice for sums paid by Landlord for
third party examination of Tenant's plans for non-Cosmetic
Alterations. In addition, within 30 days after receipt of an invoice
from Landlord, Tenant shall pay Landlord a fee for Landlord's
oversight and coordination of any non-Cosmetic Alterations equal to 7%
of the cost of the non-Cosmetic Alterations. Upon completion, Tenant
shall furnish "as-built" plans (except for Cosmetic Alterations),
completion affidavits, full and final waivers of lien and receipted
bills covering all labor and materials. Tenant shall assure that the
Alterations comply with all insurance requirements and Laws.
Landlord's approval of an Alteration
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shall not be a representation by Landlord that the Alteration complies
with applicable Laws or will be adequate for Tenant's use.
X. Use of Electrical Services by Tenant.
A. Electricity used by Tenant in the Premises shall, at Landlord's
option, be paid for by Tenant either: (1) through inclusion in
Expenses (except as provided in Section X.B. for excess usage); (2) by
a separate charge payable by Tenant to Landlord within 30 days after
billing by Landlord; or (3) by separate charge billed by the
applicable utility company and payable directly by Tenant. Electrical
service to the Premises may be furnished by one or more companies
providing electrical generation, transmission and distribution
services, and the cost of electricity may consist of several different
components or separate charges for such services, such as generation,
distribution and stranded cost charges. Landlord shall have the
exclusive right to select any company providing electrical service to
the Premises, to aggregate the electrical service for the Property and
Premises with other buildings, to purchase electricity through a
broker and/or buyers group and to change the providers and manner of
purchasing electricity. Landlord shall be entitled to receive a
reasonable fee (if permitted by Law) for the selection of utility
companies and the negotiation and administration of contracts for
electricity, provided that the amount of such fee shall not exceed 50%
of any savings obtained by Landlord.
B. Tenant's use of electrical service shall not exceed, either in
voltage, rated capacity, use beyond Normal Business Hours or overall
load, that which Landlord deems to be standard for the Building. If
Tenant requests permission to consume excess electrical service,
Landlord may refuse to consent or may condition consent upon
conditions that Landlord reasonably elects (including, without
limitation, the installation of utility service upgrades, meters,
submeters, air handlers or cooling units), and the additional usage
(to the extent permitted by Law), installation and maintenance costs
shall be paid by Tenant. Landlord shall have the right to separately
meter electrical usage for the Premises and to measure electrical
usage by survey or other commonly accepted methods.
XI. Entry by Landlord.
Landlord, its agents, contractors and representatives may enter the
Premises to inspect or show the Premises, to clean and make repairs, alterations
or additions to the Premises, and to conduct or facilitate repairs, alterations
or additions to any portion of the Building, including other tenants' premises.
Except in emergencies or to provide janitorial and other Building services after
Normal Business Hours, Landlord shall provide Tenant with reasonable prior
notice of entry into the Premises, which may be given orally. Except when
emergency circumstances require otherwise, Landlord shall observe the reasonable
security procedures of Tenant when exercising its right of entry provided Tenant
has given Landlord reasonable prior written notice thereof. If reasonably
necessary for the protection and safety of Tenant and its employees, Landlord
shall have the right to temporarily close all or a portion of the Premises to
perform repairs, alterations and additions. However, except in emergencies,
Landlord will not close the Premises if the work can reasonably be completed on
weekends and after Normal Business Hours. Entry by Landlord in accordance with
the requirements of this Section XI shall not constitute constructive eviction
or entitle Tenant to an abatement or reduction of Rent.
XII. Assignment and Subletting.
A. Except in connection with a Permitted Transfer (defined in Section
XII.E. below), Tenant shall not assign, sublease, transfer or encumber
any interest in this Lease or allow any third party to use any portion
of the Premises (collectively or individually, a "Transfer") without
the prior written consent of Landlord, which consent shall not be
unreasonably withheld if Landlord does not elect to exercise its
termination rights under Section XII.B below. Without limitation, it
is agreed that Landlord's consent shall not be considered unreasonably
withheld if: (1) the proposed transferee's financial condition does
not meet the criteria Landlord uses to select Building tenants having
similar leasehold obligations; (2) the proposed transferee's business
is not suitable for the Building considering the business of the other
tenants and the Building's prestige, or would result in a violation of
another tenant's rights; (3) the proposed transferee is a governmental
agency or occupant of the Building; (4) Tenant is in default after the
expiration of
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the notice and cure periods in this Lease; or (5) any portion of the
Building or Premises would likely become subject to additional or
different Laws as a consequence of the proposed Transfer. Tenant shall
not be entitled to receive monetary damages based upon a claim that
Landlord unreasonably withheld its consent to a proposed Transfer and
Tenant's sole remedy shall be an action to enforce any such provision
through specific performance or declaratory judgment. Any attempted
Transfer in violation of this Article shall, at Landlord's option, be
void. Consent by Landlord to one or more Transfer(s) shall not operate
as a waiver of Landlord's rights to approve any subsequent Transfers.
In no event shall any Transfer or Permitted Transfer release or
relieve Tenant from any obligation under this Lease.
B. As part of its request for Landlord's consent to a Transfer, Tenant
shall provide Landlord with financial statements for the proposed
transferee, a complete copy of the proposed assignment, sublease and
other contractual documents and such other information as Landlord may
reasonably request. Landlord shall, by written notice to Tenant
within 30 days of its receipt of the required information and
documentation, either: (1) consent to the Transfer by the execution of
a consent agreement in a form reasonably designated by Landlord or
reasonably refuse to consent to the Transfer in writing; or (2)
exercise its right to terminate this Lease with respect to the portion
of the Premises that Tenant is proposing to assign or sublet. Any
such termination shall be effective on the proposed effective date of
the Transfer for which Tenant requested consent. Tenant shall pay
Landlord a review fee of $750.00 for Landlord's review of any
Permitted Transfer or requested Transfer, provided if Landlord's
actual reasonable costs and expenses (including reasonable attorney's
fees) exceed $750.00, Tenant shall reimburse Landlord for its actual
reasonable costs and expenses in lieu of a fixed review fee.
C. Tenant shall pay Landlord 50% of all rent and other consideration
which Tenant receives as a result of a Transfer that is in excess of
the Rent payable to Landlord for the portion of the Premises and Term
covered by the Transfer. Tenant shall pay Landlord for Landlord's
share of any excess within 30 days after Tenant's receipt of such
excess consideration. Tenant may deduct from the excess all
reasonable and customary expenses directly incurred by Tenant
attributable to the Transfer (other than Landlord's review fee),
including brokerage fees, legal fees and construction costs. If
Tenant is in Monetary Default (defined in Section XIX.A. below),
Landlord may require that all sublease payments be made directly to
Landlord, in which case Tenant shall receive a credit against Rent in
the amount of any payments received (less Landlord's share of any
excess).
D. Except as provided below with respect to a Permitted Transfer, if
Tenant is a corporation, limited liability company, partnership, or
similar entity, and if the entity which owns or controls a majority of
the voting shares/rights at any time changes for any reason (including
but not limited to a merger, consolidation or reorganization), such
change of ownership or control shall constitute a Transfer. The
foregoing shall not apply so long as Tenant is an entity whose
outstanding stock is listed on a recognized security exchange, or if
at least 80% of its voting stock is owned by another entity, the
voting stock of which is so listed.
E. Tenant may assign its entire interest under this Lease to a successor
to Tenant by purchase, merger, initial public offering, consolidation
or reorganization without the consent of Landlord, provided that all
of the following conditions are satisfied (a "Permitted Transfer"):
(1) Tenant is not in default under this Lease; (2) Tenant's successor
shall own all or substantially all of the assets of Tenant; (3)
Tenant's successor shall have a net worth which is at least equal to
the greater of Tenant's net worth at the date of this Lease or
Tenant's net worth as of the day prior to the proposed purchase,
merger, consolidation or reorganization; (4) the Permitted Use does
not allow the Premises to be used for retail purposes; and (5) Tenant
shall give Landlord written notice at least 30 days prior to the
effective date of the proposed purchase, merger, consolidation or
reorganization. Tenant's notice to Landlord shall include information
and documentation showing that each of the above conditions has been
satisfied. If requested by Landlord, Tenant's successor shall sign a
commercially reasonable form of assumption agreement.
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XIII. Liens.
Tenant shall not permit mechanic's or other liens to be placed upon the
Property, Premises or Tenant's leasehold interest in connection with any work or
service done or purportedly done by or for benefit of Tenant. If a lien is so
placed, Tenant shall, within 10 days of notice from Landlord of the filing of
the lien, fully discharge the lien by settling the claim which resulted in the
lien or by bonding or insuring over the lien in the manner prescribed by the
applicable lien Law. If Tenant fails to discharge the lien, then, in addition
to any other right or remedy of Landlord, Landlord may bond or insure over the
lien or otherwise discharge the lien. Tenant shall reimburse Landlord for any
amount paid by Landlord to bond or insure over the lien or discharge the lien,
including, without limitation, reasonable attorneys' fees (if and to the extent
permitted by Law) within 30 days after receipt of an invoice from Landlord.
XIV. Indemnity and Waiver of Claims.
A. Except to the extent caused by the negligence or willful misconduct of
Landlord or any Landlord Related Parties (defined below), Tenant shall
indemnify, defend and hold Landlord, its trustees, members,
principals, beneficiaries, partners, officers, directors, employees,
Mortgagee(s) (defined in Article XXVI) and agents ("Landlord Related
Parties") harmless against and from all liabilities, obligations,
damages, penalties, claims, actions, costs, charges and expenses,
including, without limitation, reasonable attorneys' fees and other
professional fees (if and to the extent permitted by Law), which may
be imposed upon, incurred by or asserted against Landlord or any of
the Landlord Related Parties and arising out of or in connection with
any damage or injury occurring in the Premises or any negligent or
intentional acts or omissions (including violations of Law) of Tenant,
the Tenant Related Parties (defined below) or any of Tenant's
transferees, contractors or licensees.
B. Except to the extent caused by the negligence or willful misconduct of
Tenant or any Tenant Related Parties (defined below), Landlord shall
indemnify, defend and hold Tenant, its trustees, members, principals,
beneficiaries, partners, officers, directors, employees and agents
("Tenant Related Parties") harmless against and from all liabilities,
obligations, damages, penalties, claims, actions, costs, charges and
expenses, including, without limitation, reasonable attorneys' fees
and other professional fees (if and to the extent permitted by Law),
which may be imposed upon, incurred by or asserted against Tenant or
any of the Tenant Related Parties and arising out of or in connection
with the negligent or intentional acts or omissions (including
violations of Law) of Landlord, the Landlord Related Parties or any of
Landlord's contractors.
C. Landlord and the Landlord Related Parties shall not be liable for, and
Tenant waives, all claims for loss or damage to Tenant's business or
loss, theft or damage to Tenant's Property or the property of any
person claiming by, through or under Tenant resulting from: (1) wind
or weather; (2) the failure of any sprinkler, heating or air-
conditioning equipment, any electric wiring or any gas, water or steam
pipes; (3) the backing up of any sewer pipe or downspout; (4) the
bursting, leaking or running of any tank, water closet, drain or other
pipe; (5) water, snow or ice upon or coming through the roof,
skylight, stairs, doorways, windows, walks or any other place upon or
near the Building; (6) any act or omission of any party other than
Landlord or Landlord Related Parties; and (7) any causes not
reasonably within the control of Landlord. Tenant shall insure itself
against such losses under Article XV below.
XV. Insurance.
Tenant shall carry and maintain the following insurance ("Tenant's
Insurance"), at its sole cost and expense: (1) Commercial General Liability
Insurance applicable to the Premises and its appurtenances providing, on an
occurrence basis, a minimum combined single limit of $2,000,000.00; (2) All Risk
Property/Business Interruption Insurance, including flood and earthquake,
written at replacement cost value and with a replacement cost endorsement
covering all of Tenant's trade fixtures, equipment, furniture and other personal
property within the Premises ("Tenant's Property"); (3) Workers' Compensation
Insurance as required by the state in which the Premises is located and in
amounts as may be required by applicable statute; and (4) Employers Liability
Coverage of at least $1,000,000.00 per occurrence. Any company writing any of
Tenant's Insurance shall have an A.M. Best rating of not less than A-VIII. All
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Commercial General Liability Insurance policies shall name Tenant as a named
insured and Landlord (or any successor), Equity Office Properties Trust, a
Maryland real estate investment trust, EOP Operating Limited Partnership, a
Delaware limited partnership, and their respective members, principals,
beneficiaries, partners, officers, directors, employees, and agents, and other
designees of Landlord as the interest of such designees shall appear, as
additional insureds. All policies of Tenant's Insurance shall contain
endorsements that the insurer(s) shall give Landlord and its designees at least
30 days' advance written notice of any change, cancellation, termination or
lapse of insurance. Tenant shall provide Landlord with a certificate of
insurance evidencing Tenant's Insurance prior to the earlier to occur of the
Commencement Date or the date Tenant is provided with possession of the Premises
for any reason, and upon renewals at least 15 days prior to the expiration of
the insurance coverage. So long as the same is available at commercially
reasonable rates, Landlord shall maintain so called All Risk property insurance
on the Building at replacement cost value, as reasonably estimated by Landlord.
Except as specifically provided to the contrary, the limits of either party's'
insurance shall not limit such party's liability under this Lease.
XVI. Subrogation.
Notwithstanding anything in this Lease to the contrary, Landlord and Tenant
hereby waive and shall cause their respective insurance carriers to waive any
and all rights of recovery, claim, action or causes of action against the other
and their respective trustees, principals, beneficiaries, partners, officers,
directors, agents, and employees, for any loss or damage that may occur to
Landlord or Tenant or any party claiming by, through or under Landlord or
Tenant, as the case may be, with respect to Tenant's Property, the Building, the
Premises, any additions or improvements to the Building or Premises, or any
contents thereof, including all rights of recovery, claims, actions or causes of
action arising out of the negligence of Landlord or any Landlord Related Parties
or the negligence of Tenant or any Tenant Related Parties, which loss or damage
would fall within the scope of a fire and extended coverage (all risk) policy of
insurance, whether or not the party suffering the loss actually maintained such
insurance.
XVII. Casualty Damage.
A. If all or any part of the Premises is damaged by fire or other
casualty, Tenant shall immediately notify Landlord in writing. During
any period of time that all or a material portion of the Premises is
rendered untenantable as a result of a fire or other casualty, the
Rent shall abate for the portion of the Premises that is untenantable
and not used by Tenant. Landlord shall have the right to terminate
this Lease if: (1) the Building shall be damaged so that, in
Landlord's reasonable judgment, the cost of repair and reconstruction
will exceed 30% of the replacement cost of the Building; (2) Landlord
is not permitted by Law to rebuild the Building in substantially the
same form as existed before the fire or casualty; (3) more than 30% of
the Premises have been damaged and there is less than 2 years of the
Term remaining on the date of the casualty; (4) any Mortgagee requires
that the insurance proceeds be applied to the payment of the mortgage
debt; or (5) a material uninsured loss to the Building occurs and
Landlord elects not to repair or reconstruct the Building. Landlord
may exercise its right to terminate this Lease by notifying Tenant in
writing within 90 days after the date of the casualty. If Landlord
does not terminate this Lease, Landlord shall commence and proceed
with reasonable diligence to repair and restore the Building, the
Premises, and the Leasehold Improvements (excluding any Alterations
that were performed by Tenant in violation of this Lease). However, in
no event shall Landlord be required to spend more than the insurance
proceeds received by Landlord; provided that if Landlord does not have
sufficient proceeds to substantially complete the restoration of the
Leasehold Improvements in the Premises and Landlord elects not to fund
any shortfall, Landlord shall so notify Tenant and Tenant, within ten
(10) days thereafter, shall have the right to terminate this Lease by
the giving of written notice to Landlord. Landlord shall not be
liable for any loss or damage to Tenant's Property or to the business
of Tenant resulting in any way from the fire or other casualty or from
the repair and restoration of the damage. Landlord and Tenant hereby
waive the provisions of any Law relating to the matters addressed in
this Article, and agree that their respective rights for damage to or
destruction of the Premises shall be those specifically provided in
this Lease.
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B. If all or any portion of the Premises shall be made untenantable by
fire or other casualty, Landlord shall, with reasonable promptness,
cause an architect or general contractor selected by Landlord to
provide Landlord and Tenant with a written estimate of the amount of
time required to substantially complete the repair and restoration of
the Premises and make the Premises tenantable again, using standard
working methods ("Completion Estimate"). If the Completion Estimate
indicates that the Premises cannot be made tenantable within 270 days
from the date the repair and restoration is started, then regardless
of anything in Section XVII.A above to the contrary, either party
shall have the right to terminate this Lease by giving written notice
to the other of such election within 10 days after receipt of the
Completion Estimate. Tenant, however, shall not have the right to
terminate this Lease if the fire or casualty was caused by the
negligence or intentional misconduct of Tenant, Tenant Related Parties
or any of Tenant's transferees, contractors or licensees.
XVIII. Condemnation.
Either party may terminate this Lease if the whole or any material part
of the Premises shall be taken or condemned for any public or quasi-public use
under Law, by eminent domain or private purchase in lieu thereof (a "Taking").
Landlord shall also have the right to terminate this Lease if there is a Taking
of any portion of the Building or Property which would leave the remainder of
the Building unsuitable for use as an office building in a manner comparable to
the Building's use prior to the Taking. In order to exercise its right to
terminate the Lease, Landlord or Tenant, as the case may be, must provide
written notice of termination to the other within 45 days after the terminating
party first receives notice of the Taking. Any such termination shall be
effective as of the date the physical taking of the Premises or the portion of
the Building or Property occurs. If this Lease is not terminated, the Rentable
Square Footage of the Building, the Rentable Square Footage of the Premises and
Tenant's Pro Rata Share shall, if applicable, be appropriately adjusted. In
addition, Rent for any portion of the Premises taken or condemned shall be
abated during the unexpired Term of this Lease effective when the physical
taking of the portion of the Premises occurs. All compensation awarded for a
Taking, or sale proceeds, shall be the property of Landlord, any right to
receive compensation or proceeds being expressly waived by Tenant. However,
Tenant may file a separate claim at its sole cost and expense for Tenant's
Property and Tenant's reasonable relocation expenses, provided the filing of the
claim does not diminish the award which would otherwise be receivable by
Landlord.
XIX. Events of Default.
Tenant shall be considered to be in default of this Lease upon the
occurrence of any of the following events of default:
A. Tenant's failure to pay when due all or any portion of the Rent, if
the failure continues for 3 days after written notice to Tenant
("Monetary Default").
B. Tenant's failure (other than a Monetary Default) to comply with any
term, provision or covenant of this Lease, if the failure is not cured
within 20 days after written notice to Tenant. However, if Tenant's
failure to comply cannot reasonably be cured within 20 days, Tenant
shall be allowed additional time (not to exceed 60 days) as is
reasonably necessary to cure the failure so long as: (1) Tenant
commences to cure the failure within 20 days, and (2) Tenant
diligently pursues a course of action that will cure the failure and
bring Tenant back into compliance with the Lease. However, if
Tenant's failure to comply creates a hazardous condition, the failure
must be cured immediately upon notice to Tenant. In addition, if
Landlord provides Tenant with notice of Tenant's failure to comply
with any particular term, provision or covenant of the Lease on 3
occasions during any 12 month period, Tenant's subsequent violation of
such term, provision or covenant shall, at Landlord's option, be an
incurable event of default by Tenant.
C. Tenant or any Guarantor becomes insolvent, makes a transfer in fraud
of creditors or makes an assignment for the benefit of creditors, or
admits in writing its inability to pay its debts when due.
D. The leasehold estate is taken by process or operation of Law.
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E In the case of any ground floor or retail Tenant, Tenant does not take
possession of, or abandons or vacates all or any portion of the
Premises.
F.
XX. Remedies.
A. Upon any default, Landlord shall have the right without notice or
demand (except as provided in Article XIX) to pursue any of its rights
and remedies at Law or in equity, including any one or more of the
following remedies:
1. Terminate this Lease, in which case Tenant shall immediately
surrender the Premises to Landlord. If Tenant fails to surrender
the Premises, Landlord may, in compliance with applicable Law and
without prejudice to any other right or remedy, enter upon and
take possession of the Premises and expel and remove Tenant,
Tenant's Property and any party occupying all or any part of the
Premises. Tenant shall pay Landlord on demand the amount of all
past due Rent and other losses and damages which Landlord may
suffer as a result of Tenant's default, whether by Landlord's
inability to relet the Premises on satisfactory terms or
otherwise, including, without limitation, all Costs of Reletting
(defined below) and any deficiency that may arise from reletting
or the failure to relet the Premises. "Costs of Reletting" shall
include all costs and expenses incurred by Landlord in reletting
or attempting to relet the Premises, including, without
limitation, reasonable legal fees, brokerage commissions, the
cost of alterations and the value of other concessions or
allowances granted to a new tenant.
2. Terminate Tenant's right to possession of the Premises and, in
compliance with applicable Law, expel and remove Tenant, Tenant's
Property and any parties occupying all or any part of the
Premises. Landlord may (but shall not be obligated to) relet all
or any part of the Premises, without notice to Tenant, for a term
that may be greater or less than the balance of the Term and on
such conditions (which may include concessions, free rent and
alterations of the Premises) and for such uses as Landlord in its
absolute discretion shall determine. Landlord may collect and
receive all rents and other income from the reletting. Tenant
shall pay Landlord on demand all past due Rent, all Costs of
Reletting and any deficiency arising from the reletting or
failure to relet the Premises. Landlord shall not be responsible
or liable for the failure to relet all or any part of the
Premises or for the failure to collect any Rent. The re-entry or
taking of possession of the Premises shall not be construed as an
election by Landlord to terminate this Lease unless a written
notice of termination is given to Tenant.
3. In lieu of calculating damages under Sections XX.A.1 or XX.A.2
above, Landlord may elect to receive as damages the sum of (a)
all Rent accrued through the date of termination of this Lease or
Tenant's right to possession, and (b) an amount equal to the
total Rent that Tenant would have been required to pay for the
remainder of the Term discounted to present value at the Prime
Rate (defined in Section XX.B. below) then in effect, minus the
then present fair rental value of the Premises for the remainder
of the Term, similarly discounted, after deducting all
anticipated Costs of Reletting.
B. Unless expressly provided in this Lease, the repossession or re-
entering of all or any part of the Premises shall not relieve Tenant
of its liabilities and obligations under the Lease. No right or
remedy of Landlord shall be exclusive of any other right or remedy.
Each right and remedy shall be cumulative and in addition to any other
right and remedy now or subsequently available to Landlord at Law or
in equity. If Landlord declares Tenant to be in default, Landlord
shall be entitled to receive interest on any unpaid item of Rent at a
rate equal to the Prime Rate plus 4%. For purposes hereof, the "Prime
Rate" shall be the per annum interest rate publicly announced as its
prime or base rate by a federally insured bank selected by Landlord in
the state in which the Building is located. Forbearance
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by Landlord to enforce one or more remedies shall not constitute a
waiver of any default.
XXI. Limitation of Liability.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS LEASE, THE
LIABILITY OF LANDLORD (AND OF ANY SUCCESSOR LANDLORD) TO TENANT SHALL BE LIMITED
TO THE INTEREST OF LANDLORD IN THE PROPERTY. TENANT SHALL LOOK SOLELY TO
LANDLORD'S INTEREST IN THE PROPERTY FOR THE RECOVERY OF ANY JUDGMENT OR AWARD
AGAINST LANDLORD. NEITHER LANDLORD NOR ANY LANDLORD RELATED PARTY SHALL BE
PERSONALLY LIABLE FOR ANY JUDGMENT OR DEFICIENCY. BEFORE FILING SUIT FOR AN
ALLEGED DEFAULT BY LANDLORD, TENANT SHALL GIVE LANDLORD AND THE MORTGAGEE(S)
(DEFINED IN ARTICLE XXVI BELOW) WHOM TENANT HAS BEEN NOTIFIED HOLD MORTGAGES
(DEFINED IN ARTICLE XXVI BELOW) ON THE PROPERTY, BUILDING OR PREMISES, NOTICE
AND REASONABLE TIME TO CURE THE ALLEGED DEFAULT. IN ADDITION, TENANT
ACKNOWLEDGES THAT ANY ENTITY MANAGING THE BUILDING ON BEHALF OF LANDLORD, OR
WHICH EXECUTES THIS LEASE AS AGENT FOR LANDLORD, IS ACTING SOLELY IN ITS
CAPACITY AS AGENT FOR LANDLORD AND SHALL NOT BE LIABLE FOR ANY OBLIGATIONS,
LIABILITIES, LOSSES OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS LEASE,
ALL OF WHICH ARE EXPRESSLY WAIVED BY TENANT.
XXII. No Waiver.
Either party's failure to declare a default immediately upon its
occurrence, or delay in taking action for a default shall not constitute a
waiver of the default, nor shall it constitute an estoppel. Either party's
failure to enforce its rights for a default shall not constitute a waiver of its
rights regarding any subsequent default. Receipt by Landlord of Tenant's keys
to the Premises shall not constitute an acceptance or surrender of the Premises.
XXIII. Quiet Enjoyment.
Tenant shall, and may peacefully have, hold and enjoy the Premises,
subject to the terms of this Lease, provided Tenant pays the Rent and fully
performs all of its covenants and agreements. This covenant and all other
covenants of Landlord shall be binding upon Landlord and its successors only
during its or their respective periods of ownership of the Building, and shall
not be a personal covenant of Landlord or the Landlord Related Parties; provided
that, any successor pursuant to a voluntary, third-party transfer (but not as
part of an involuntary transfer resulting from a foreclosure or deed in lieu
thereof) shall have assumed Landlord's obligations under this Lease either by
contractual obligation, assumption agreement of by operation of law.
XXIV. Relocation.
INTENTIONALLY OMITTED.
XXV. Holding Over.
Except for any permitted occupancy by Tenant under Article VIII, if
Tenant fails to surrender the Premises at the expiration or earlier termination
of this Lease, occupancy of the Premises after the termination or expiration
shall be that of a tenancy at Tenant's occupancy of the Premises during the
holdover shall be subject to all the terms and provisions of this Lease and
Tenant shall pay as an amount (on a per month basis without reduction for
partial months during the holdover) equal to 150% of the greater of: (1) the
Base Rent due for the period immediately preceding the holdover; or (2) the fair
market gross rental for the Premises as reasonably determined by Landlord. No
holdover by Tenant or payment by Tenant after the expiration or early
termination of this Lease shall be construed to extend the Term or prevent
Landlord from immediate recovery of possession of the Premises by summary
proceedings or otherwise. In addition to the payment of the amounts provided
above, if Landlord is unable to deliver possession of the Premises to a new
tenant, or to perform improvements for a new tenant, as a result of Tenant's
holdover and Tenant fails to vacate the Premises within 15 days after Landlord
notifies Tenant of Landlord's inability to deliver possession, or perform
improvements, Tenant shall be liable to Landlord for all damages, including,
without limitation, consequential damages, that Landlord suffers from the
holdover.
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XXVI. Subordination to Mortgages; Estoppel Certificate.
Tenant accepts this Lease subject and subordinate to any mortgage(s),
deed(s) of trust, ground lease(s) or other lien(s) now existing upon the
Premises, the Building or the Property, and to renewals, modifications, and
extensions thereof (collectively referred to as a "Mortgage"). The party having
the benefit of a Mortgage shall be referred to as a "Mortgagee". This clause
shall be self-operative, but upon request from a Mortgagee, Tenant shall execute
a commercially reasonable subordination agreement in favor of the Mortgagee. In
lieu of having the Mortgage be superior to this Lease, a Mortgagee shall have
the right at any time to subordinate its Mortgage to this Lease. If requested
by a successor-in-interest to all or a part of Landlord's interest in the Lease,
Tenant shall, without charge, attorn to the successor-in-interest. Landlord and
Tenant shall each, within 15 days after receipt of a written request from the
other, execute and deliver an estoppel certificate to those parties as are
reasonably requested by the other (including a Mortgagee or prospective
purchaser). The estoppel certificate shall include a statement certifying that
this Lease is unmodified (except as identified in the estoppel certificate) and
in full force and effect, describing the dates to which Rent and other charges
have been paid, representing that, to such party's actual knowledge, there is no
default (or stating the nature of the alleged default) and indicating other
matters with respect to the Lease that may reasonably be requested.
Notwithstanding the foregoing, upon written request by Tenant, Landlord will use
reasonable efforts to obtain a non-disturbance, subordination and attornment
agreement from Landlord's then current Mortgagee on such Mortgagee's then
current standard form of agreement. "Reasonable efforts" of Landlord shall not
require Landlord to incur any cost, expense or liability to obtain such
agreement, it being agreed that Tenant shall be responsible for any fee or
review costs charged by the Mortgagee. Upon request of Landlord, Tenant will
execute the Mortgagee's form of non-disturbance, subordination and attornment
agreement and return the same to Landlord for execution by the Mortgagee.
Landlord's failure to obtain a non-disturbance, subordination and attornment
agreement for Tenant shall have no effect on the rights, obligations and
liabilities of Landlord and Tenant or be considered to be a default by Landlord
hereunder.
XXVII. Attorneys' Fees.
If either party institutes a suit against the other for violation of or
to enforce any covenant or condition of this Lease, or if either party
intervenes in any suit in which the other is a party to enforce or protect its
interest or rights, the prevailing party shall be entitled to all of its costs
and expenses, including, without limitation, reasonable attorneys' fees.
XXVIII. Notice.
If a demand, request, approval, consent or notice (collectively referred
to as a "notice") shall or may be given to either party by the other, the notice
shall be in writing and delivered by hand or sent by registered or certified
mail with return receipt requested, or sent by overnight or same day courier
service at the party's respective Notice Address(es) set forth in Article I,
except that if the Notice Address for Tenant is other than the Premises, and
Tenant has vacated such address without providing Landlord a new Notice Address,
Landlord may serve notice in any manner described in this Article or in any
other manner permitted by Law. Each notice shall be deemed to have been received
or given on the earlier to occur of actual delivery or the date on which
delivery is refused, or, if Tenant has vacated the Premises or the other Notice
Address of Tenant without providing a new Notice Address, three (3) days after
notice is deposited in the U.S. mail or with a courier service in the manner
described above. Either party may, at any time, change its Notice Address by
giving the other party written notice of the new address in the manner described
in this Article.
XXIX. Excepted Rights.
This Lease does not grant any rights to light or air over or about the
Building. Landlord excepts and reserves exclusively to itself the use of: (1)
roofs, (2) telephone, electrical and janitorial closets, (3) equipment rooms,
Building risers or similar areas that are used by Landlord for the provision of
Building services, (4) rights to the land and improvements below the floor of
the Premises, (5) the improvements and air rights above the Premises, (6) the
improvements and air rights outside the demising walls of the Premises, and (7)
the areas within the Premises used for the installation of utility lines and
other installations serving occupants of the Building. Landlord has the right to
change the Building's name or address. Landlord also has the right to make such
other changes to the Property and Building as
17
<PAGE>
Landlord deems appropriate, provided the changes do not materially affect
Tenant's ability to use the Premises for the Permitted Use. Landlord shall also
have the right (but not the obligation) to temporarily close the Building if
Landlord reasonably determines that there is an imminent danger of significant
damage to the Building or of personal injury to Landlord's employees or the
occupants of the Building. The circumstances under which Landlord may
temporarily close the Building shall include, without limitation, electrical
interruptions, hurricanes and civil disturbances. A closure of the Building
under such circumstances shall not constitute a constructive eviction nor
entitle Tenant to an abatement or reduction of Rent.
XXX. Surrender of Premises.
At the expiration or earlier termination of this Lease or Tenant's right
of possession, Tenant shall remove Tenant's Property (defined in Article XV)
from the Premises, and quit and surrender the Premises to Landlord, broom clean,
and in good order, condition and repair, ordinary wear and tear, and damage by
fire and other casualty and by condemnation excepted. Tenant shall also be
required to remove the Required Removables in accordance with Article VIII. If
Tenant fails to remove any of Tenant's Property within 2 days after the
termination of this Lease or of Tenant's right to possession, Landlord, at
Tenant's sole cost and expense, shall be entitled (but not obligated) to remove
and store Tenant's Property. Landlord shall not be responsible for the value,
preservation or safekeeping of Tenant's Property. Tenant shall pay Landlord,
upon demand, the expenses and storage charges incurred for Tenant's Property. In
addition, if Tenant fails to remove Tenant's Property from the Premises or
storage, as the case may be, within 30 days after written notice, Landlord may
deem all or any part of Tenant's Property to be abandoned, and title to Tenant's
Property shall be deemed to be immediately vested in Landlord.
XXXI. Miscellaneous.
A. This Lease and the rights and obligations of the parties shall be
interpreted, construed and enforced in accordance with the Laws of the
state in which the Building is located and Landlord and Tenant hereby
irrevocably consent to the jurisdiction and proper venue of such
state. If any term or provision of this Lease shall to any extent be
invalid or unenforceable, the remainder of this Lease shall not be
affected, and each provision of this Lease shall be valid and enforced
to the fullest extent permitted by Law. The headings and titles to
the Articles and Sections of this Lease are for convenience only and
shall have no effect on the interpretation of any part of the Lease.
B. Tenant shall not record this Lease or any memorandum without
Landlord's prior written consent.
C. Landlord and Tenant hereby waive any right to trial by jury in any
proceeding based upon a breach of this Lease.
D. Whenever a period of time is prescribed for the taking of an action by
Landlord or Tenant, other than delivery of possession, the period of
time for the performance of such action shall be extended by the
number of days that the performance is actually delayed due to
strikes, acts of God, shortages of labor or materials, war, civil
disturbances and other causes beyond the reasonable control of the
performing party ("Force Majeure"). However, events of Force Majeure
shall not extend any period of time for the payment of Rent or other
sums payable by either party or any period of time for the written
exercise of an option or right by either party.
E. Landlord shall have the right to transfer and assign, in whole or in
part, all of its rights and obligations under this Lease and in the
Building and/or Property referred to herein, and upon such transfer
Landlord shall be released from any further obligations hereunder, and
Tenant agrees to look solely to the successor in interest of Landlord
for the performance of such obligations, provided that, any successor
pursuant to a voluntary, third-party transfer (but not as part of an
involuntary transfer resulting from a foreclosure or deed in lieu
thereof) shall have assumed Landlord's obligations under this Lease
either by contractual obligation, assumption agreement or by operation
of law.
F. A. Tenant represents that it has dealt directly with and only with
the Broker as a broker in connection with this Lease. Tenant
shall indemnify and
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hold Landlord and the Landlord Related Parties harmless from all
claims of any brokers, including Tenant's Broker, claiming to
have represented Tenant in connection with this Lease. Landlord
agrees to indemnify and hold Tenant and the Tenant Related
Parties harmless from all claims of any brokers claiming to have
represented Landlord in connection with this Lease. Landlord
agrees to pay a brokerage commission to Broker(s) in accordance
with the terms of a written commission agreement between Landlord
and Broker(s).
B. Agency Disclosure. At the signing of this Lease, Landlord's
leasing agent, Roger Wright, of Wright Runstad Associates Limited
Partnership represented (X) Landlord, () Tenant, or () both
Landlord and Tenant. At the signing of this Lease, Tenant's
agent, Washington Partners, Inc. represented () Landlord, (X)
Tenant, or () both Landlord and Tenant. Each party signing this
document confirms that the prior oral and/or written disclosure
of agency was provided to such party in this transaction, as
required by RCW 18.86.030(1)(g).
C. Landlord and Tenant, by their execution of this Lease, each
acknowledge and agree that they have timely received a pamphlet
on the law of real estate agency as required under RCW
18.86.030(1)(f).
G. Tenant covenants, warrants and represents that: (1) each individual
executing, attesting and/or delivering this Lease on behalf of Tenant
is authorized to do so on behalf of Tenant; (2) this Lease is binding
upon Tenant; and (3) Tenant is duly organized and legally existing in
the state of its organization and is qualified to do business in the
state in which the Premises are located. If there is more than one
Tenant, or if Tenant is comprised of more than one party or entity,
the obligations imposed upon Tenant shall be joint and several
obligations of all the parties and entities. Notices, payments and
agreements given or made by, with or to any one person or entity shall
be deemed to have been given or made by, with and to all of them.
H. Time is of the essence with respect to Tenant's exercise of any
expansion, renewal or extension rights granted to Tenant. This Lease
shall create only the relationship of landlord and tenant between the
parties, and not a partnership, joint venture or any other
relationship. This Lease and the covenants and conditions in this
Lease shall inure only to the benefit of and be binding only upon
Landlord and Tenant and their permitted successors and assigns.
I. The expiration of the Term, whether by lapse of time or otherwise,
shall not relieve either party of any obligations which accrued prior
to or which may continue to accrue after the expiration or early
termination of this Lease. Without limiting the scope of the prior
sentence, it is agreed that Tenant's obligations under Sections IV.A,
IV.B., VIII, XIV, XX, XXV and XXX, and Landlord's obligations under
Sections XIV and XXV, shall survive the expiration or early
termination of this Lease.
J. Landlord has delivered a copy of this Lease to Tenant for Tenant's
review only, and the delivery of it does not constitute an offer to
Tenant or an option. This Lease shall not be effective against any
party hereto until an original copy of this Lease has been signed by
such party.
K. All understandings and agreements previously made between the parties
are superseded by this Lease, and neither party is relying upon any
warranty, statement or representation not contained in this Lease.
This Lease may be modified only by a written agreement signed by
Landlord and Tenant.
L. Tenant, within 15 days after request, shall provide Landlord with a
current financial statement and such other information as Landlord may
reasonably request in order to create a "business profile" of Tenant
and determine Tenant's ability to fulfill its obligations under this
Lease. Landlord, however, shall not require Tenant to provide such
information unless Landlord is requested to produce the information in
connection with a proposed financing or sale of the Building. Upon
written request by Tenant, Landlord shall enter into a
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commercially reasonable confidentiality agreement covering any
confidential information that is disclosed by Tenant.
XXXII. Entire Agreement.
This Lease and the following exhibits and attachments constitute the entire
agreement between the parties and supersede all prior agreements and
understandings related to the Premises, including all lease proposals, letters
of intent and other documents: Exhibit A (Outline and Location of Premises),
Exhibit A-2 (Legal Description of Property), Exhibit B (Rules and Regulations),
Exhibit C (Commencement Letter - Intentionally Omitted)), Exhibit D (Work Letter
Agreement - Intentionally Omitted), Exhibit E (Additional Provisions).
Landlord and Tenant have executed this Lease as of the day and year first
above written.
LANDLORD:
EOP-Columbia Center, L.L.C.,
a Delaware limited liability company
By: EOP Operating Limited Partnership, a
Delaware limited partnership,
its sole member
By: Equity Office Properties Trust,
a Maryland real estate investment
trust, its managing general partner
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
TENANT:
AVENUE A, INC., a Washington corporation
By: /s/ Robert M. Littauer
----------------------------------
Name: Robert M. Littauer
--------------------------------
Title: VP
-------------------------------
20
<PAGE>
THIS PAGE IS REQUIRED IF PROPERTY IS IN WASHINGTON STATE
LANDLORD ACKNOWLEDGMENT
STATE OF _________)
COUNTY OF_________) (S):
I, the undersigned, a Notary Public, in and for the County and State
aforesaid, do hereby certify that _________________________, personally known to
me to be the __________ President of Equity Office Properties Trust, a Maryland
REIT, and personally known to me to be the same person whose name is subscribed
to the foregoing instrument, appeared before me this day in person and
acknowledged that as such officer of said entity being authorized so to do,
(s)he executed the foregoing instrument on behalf of said entity, by subscribing
the name of such entity by himself/herself as such officer, as a free and
voluntary act, and as the free and voluntary act and deed of said entity under
the foregoing instrument for the uses and purposes therein set forth.
GIVEN under my hand and official seal this ____ day of _________, 20__.
_______________________
Notary Public
_______________________
Printed Name
Residing at:___________________________
My Commission Expires:_________________
TENANT ACKNOWLEDGMENT
Corporation
STATE OF_____________)
COUNTY OF____________) (S):
On this the 14th day of February, 2000, before me a Notary Public duly
---- -------- --
authorized in and for the said County in the State aforesaid to take
acknowledgments personally appeared Bob known to me to be
-----------------
Vice President of Finance , one of the parties
---------- ------------------------------
described in the foregoing instrument, and acknowledged that as such officer,
being authorized so to do, (s)he executed the foregoing instrument on behalf of
said corporation by subscribing the name of such corporation by himself/herself
as such officer and caused the corporate seal of said corporation to be affixed
thereto, as a free and voluntary act, and as the free and voluntary act of said
corporation, for the uses and purposes therein set forth.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ Tamara J. Van Liew
----------------------
Notary Public
Tamara J. Van Liew
----------------------
Printed Name
Residing at: Avenue A, Inc.
------------------------
My Commission Expires: 7-1-03
---------------
<PAGE>
EXHIBIT A
PREMISES
--------
This Exhibit is attached to and made a part of the Lease dated as of
_____________________, by and between EOP-Columbia Center, L.L.C., a Delaware
limited liability company ("Landlord") and AVENUE A, INC., a Washington
corporation ("Tenant") for space in the Building located at 701 Fifth Avenue,
Seattle, Washington 98104.
<PAGE>
EXHIBIT A-2
LEGAL DESCRIPTION OF PROPERTY
-----------------------------
This Exhibit is attached to and made a part of the Lease dated as of
_____________________, by and between EOP-Columbia Center, L.L.C., a Delaware
limited liability company ("Landlord") and AVENUE A, INC., a Washington
corporation ("Tenant") for space in the Building located at 701 Fifth Avenue,
Seattle, Washington 98104.
A FEE SIMPLE AS TO PARCEL A;
A LEASEHOLD ESTATE AS TO PARCEL B AS CREATED BY THAT CERTAIN LEASE BETWEEN THE
WASHINGTON STATE DEPARTMENT OF TRANSPORTATION, AS LESSOR, AND MARTIN SELIG, AS
LESSEE, DATED SEPTEMBER 26, 1984, AS AMENDED BY THAT CERTAIN AMENDMENT TO LEASE
DATED DECEMBER 15, 1989. A MEMORANDUM OF THE LEASE AND AMENDMENT WAS RECORDED
DECEMBER 15, 1989 UNDER RECORDING NUMBER 8912150287. SAID AMENDMENT TO LEASE
WAS ALSO RECORDED DECEMBER 19, 1989, UNDER RECORDING NUMBER 8912191147. THE
LESSEE'S INTEREST WAS ASSIGNED TO SEAFIRST CENTER LIMITED PARTNERSHIP, A
WASHINGTON LIMITED PARTNERSHIP, BY ASSIGNMENT RECORDED DECEMBER 15, 1989, UNDER
RECORDING NUMBER 8912150288 AND WAS ASSIGNED BY SEAFIRST CENTER LIMITED
PARTNERSHIP, A WASHINGTON LIMITED PARTNERSHIP, BY ASSIGNMENT RECORDED JUNE 26,
1998, UNDER RECORDING NUMBER 9806261556 TO EOP-COLUMBIA CENTER, L.L.C., A
DELAWARE LIMITED LIABILITY COMPANY;
APPURTENANT RIGHTS AS TO PARCEL C; AND
AN EASEMENT AS TO PARCEL D
PARCEL A:
ALL OF BLOCK 28, ADDITION TO THE TOWN OF SEATTLE, AS LAID OUT ON THE CLAIM OF C.
D. BOREN AND A. A. DENNY AND H. L. YESLER (COMMONLY KNOWN AS C. D. BOREN'S
ADDITION TO THE CITY OF SEATTLE), ACCORDING TO THE PLAT THEREOF, RECORDED IN
VOLUME 1 OF THE PLATS, PAGE(S) 25, IN KING COUNTY, WASHINGTON;
TOGETHER WITH THE VACATED ALLEY LYING WITHIN SAID BLOCK 28, AS VACATED UNDER THE
CITY OF SEATTLE ORDINANCE NUMBER 656;
EXCEPT THE WESTERLY 9 FEET OF SAID BLOCK 28 CONDEMNED IN KING COUNTY SUPERIOR
COURT CAUSE NUMBER 50320 FOR WIDENING OF FOURTH AVENUE, AS PROVIDED BY ORDINANCE
NUMBER 13074 OF THE CITY OF SEATTLE.
PARCEL B:
THAT PORTION OF THE SOUTHEASTERLY ONE HALF OF COLUMBIA STREET LYING EASTERLY OF
THE CENTER LINE OF FIFTH AVENUE AND THAT PORTION OF THE EASTERLY ONE HALF OF
FIFTH AVENUE LYING SOUTHERLY OF THE CENTER LINE OF SAID COLUMBIA STREET: LYING
WITHIN A STRIP OF LAND 14 FEET IN WIDTH, LYING BETWEEN ELEVATION 120.00 FEET AND
ELEVATION 138.00 FEET, CITY OF SEATTLE DATUM, THE CENTER LINE OF WHICH IS
DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT OF THE EASTERLY PROPERTY LINE OF BLOCK 28 OF C.D. BOREN'S
ADDITION TO THE CITY OF SEATTLE, SOUTH 30 degrees 40'34" EAST, 41.05 FEET FROM
THE NORTHEASTERLY CORNER OF SAID BLOCK;
THENCE NORTH 21 degrees 25'31" EAST, 167.75 FEET;
THENCE NORTH 30 degrees 37'16" WEST, 3.88 FEET TO A POINT IN THE SOUTHERLY
PROPERTY LINE OF BLOCK 24 OF SAID BOREN'S ADDITION, FROM WHICH THE SOUTHWESTERLY
CORNER BEARS SOUTH 59 degrees 23'05" WEST 66.84 FEET.
PARCEL C:
RIGHTS INURING TO A PORTION OF THE LAND DESCRIBED IN PARCEL A ABOVE AS PROVIDED
FOR UNDER THAT CERTAIN RESTRICTIVE USE COVENANT DATED APRIL 3,
<PAGE>
1989, EXECUTED BY AND BETWEEN COSTACOS FAMILY PARTNERSHIP I, A WASHINGTON
GENERAL PARTNERSHIP, AND MARTIN SELIG AND ANDREA SELIG, HUSBAND AND WIFE,
RECORDED APRIL 10, 1989, UNDER RECORDING NUMBER 8904100807.
AN ASSIGNMENT OF AGREEMENT AND OPTION TO SEAFIRST CENTER LIMITED PARTNERSHIP, A
WASHINGTON LIMITED PARTNERSHIP, WAS RECORDED DECEMBER 15, 1989, UNDER RECORDING
NUMBER 8912150289.
PARCEL D:
THE EASEMENTS, RIGHTS OF ACCESS AND RIGHTS OF WAY AS SET FORTH IN THAT CERTAIN
MEMORANDUM OF AGREEMENT DATED NOVEMBER 30, 1984, BY AND BETWEEN BLOCK 24,
SEATTLE, LTD., A WASHINGTON LIMITED PARTNERSHIP, SEATTLE FIRST NATIONAL BANK, A
NATIONAL BANKING ASSOCIATION, AND MARTIN SELIG, RECORDED JANUARY 31, 1985, UNDER
RECORDING NUMBER 8501310855.
<PAGE>
EXHIBIT B
BUILDING RULES AND REGULATIONS
------------------------------
The following rules and regulations shall apply, where applicable, to the
Premises, the Building, the parking garage (if any), the Property and the
appurtenances. Capitalized terms have the same meaning as defined in the Lease.
1. Sidewalks, doorways, vestibules, halls, stairways and other similar areas
shall not be obstructed by Tenant or used by Tenant for any purpose other
than ingress and egress to and from the Premises. No rubbish, litter,
trash, or material shall be placed, emptied, or thrown in those areas. At
no time shall Tenant permit Tenant's employees to loiter in Common Areas or
elsewhere about the Building or Property.
2. Plumbing fixtures and appliances shall be used only for the purposes for
which designed, and no sweepings, rubbish, rags or other unsuitable
material shall be thrown or placed in the fixtures or appliances. Damage
resulting to fixtures or appliances by Tenant, its agents, employees or
invitees, shall be paid for by Tenant, and Landlord shall not be
responsible for the damage.
3. No signs, advertisements or notices shall be painted or affixed to windows,
doors or other parts of the Building, except those of such color, size,
style and in such places as are first approved in writing by Landlord. All
tenant identification and suite numbers at the entrance to the Premises
shall be installed by Landlord, at Tenant's cost and expense, using the
standard graphics for the Building. Except in connection with the hanging
of lightweight pictures and wall decorations, no nails, hooks or screws
shall be inserted into any part of the Premises or Building except by the
Building maintenance personnel.
4. Landlord may provide and maintain in the first floor (main lobby) of the
Building an alphabetical directory board or other directory device listing
tenants, and no other directory shall be permitted unless previously
consented to by Landlord in writing.
5. Tenant shall not place any lock(s) on any door in the Premises or Building
without Landlord's prior written consent and Landlord shall have the right
to retain at all times and to use keys to all locks within and into the
Premises. A reasonable number of keys to the locks on the entry doors in
the Premises shall be furnished by Landlord to Tenant at Tenant's cost, and
Tenant shall not make any duplicate keys. All keys shall be returned to
Landlord at the expiration or early termination of this Lease.
6. All contractors, contractor's representatives and installation technicians
performing work in the Building shall be subject to Landlord's prior
approval and shall be required to comply with Landlord's standard rules,
regulations, policies and procedures, which may be revised from time to
time.
7. Movement in or out of the Building of furniture or office equipment, or
dispatch or receipt by Tenant of merchandise or materials requiring the use
of elevators, stairways, lobby areas or loading dock areas, shall be
restricted to hours designated by Landlord. Tenant shall obtain Landlord's
prior approval by providing a detailed listing of the activity. If
approved by Landlord, the activity shall be under the supervision of
Landlord and performed in the manner required by Landlord. Tenant shall
assume all risk for damage to articles moved and injury to any persons
resulting from the activity. If equipment, property, or personnel of
Landlord or of any other party is damaged or injured as a result of or in
connection with the activity, Tenant shall be solely liable for any
resulting damage or loss.
8. Landlord shall have the right to approve the weight, size, or location of
heavy equipment or articles in and about the Premises. Damage to the
Building by the installation, maintenance, operation, existence or removal
of property of Tenant shall be repaired at Tenant's sole expense.
9. Corridor doors, when not in use, shall be kept closed.
10. Tenant shall not: (1) make or permit any improper, objectionable or
unpleasant noises or odors in the Building, or otherwise interfere in any
way with other tenants or persons having business with them; (2) solicit
business or distribute, or cause to be distributed,
<PAGE>
in any portion of the Building, handbills, promotional materials or other
advertising; or (3) conduct or permit other activities in the Building that
might, in Landlord's sole opinion, constitute a nuisance.
11. No animals, except those assisting handicapped persons, shall be brought
into the Building or kept in or about the Premises.
12. No inflammable, explosive or dangerous fluids or substances shall be used
or kept by Tenant in the Premises, Building or about the Property. Tenant
shall not, without Landlord's prior written consent, use, store, install,
spill, remove, release or dispose of, within or about the Premises or any
other portion of the Property, any asbestos-containing materials or any
solid, liquid or gaseous material now or subsequently considered toxic or
hazardous under the provisions of 42 U.S.C. Section 9601 et seq. or any
other applicable environmental Law which may now or later be in effect.
Notwithstanding the foregoing, Landlord consents to the storage and use of
normal quantities of normal office supplies in the Premises. Tenant shall
comply with all Laws pertaining to and governing the use of these materials
by Tenant, and shall remain solely liable for the costs of abatement and
removal.
13. Tenant shall not use or occupy the Premises in any manner or for any
purpose which might injure the reputation or impair the present or future
value of the Premises or the Building. Tenant shall not use, or permit any
part of the Premises to be used, for lodging, sleeping or for any illegal
purpose.
14. Tenant shall not take any action which would violate Landlord's labor
contracts or which would cause a work stoppage, picketing, labor disruption
or dispute, or interfere with Landlord's or any other tenant's or
occupant's business or with the rights and privileges of any person
lawfully in the Building ("Labor Disruption"). Tenant shall take the
actions necessary to resolve the Labor Disruption, and shall have pickets
removed and, at the request of Landlord, immediately terminate any work in
the Premises that gave rise to the Labor Disruption, until Landlord gives
its written consent for the work to resume. Tenant shall have no claim for
damages against Landlord or any of the Landlord Related Parties, nor shall
the date of the commencement of the Term be extended as a result of the
above actions.
15. Tenant shall not install, operate or maintain in the Premises or in any
other area of the Building, electrical equipment that would overload the
electrical system beyond its capacity for proper, efficient and safe
operation as determined solely by Landlord. Tenant shall not furnish
cooling or heating to the Premises, including, without limitation, the use
of electronic or gas heating devices, without Landlord's prior written
consent. Tenant shall not use more than its proportionate share of
telephone lines and other telecommunication facilities available to service
the Building.
16. Tenant shall not operate or permit to be operated a coin or token operated
vending machine or similar device (including, without limitation,
telephones, lockers, toilets, scales, amusement devices and machines for
sale of beverages, foods, candy, cigarettes and other goods), except for
machines for the exclusive use of Tenant's employees.
17. Bicycles and other vehicles are not permitted inside the Building or on the
walkways outside the Building, except in areas designated by Landlord.
18. Landlord may from time to time adopt systems and procedures for the
security and safety of the Building, its occupants, entry, use and
contents. Tenant, its agents, employees, contractors, guests and invitees
shall comply with Landlord's systems and procedures.
19. Landlord shall have the right to prohibit the use of the name of the
Building by Tenant that in Landlord's sole opinion may impair the
reputation of the Building or its desirability. Upon written notice from
Landlord, Tenant shall refrain from and discontinue such publicity
immediately.
20. Tenant shall not canvass, solicit or peddle in or about the Building or the
Property.
21. Neither Tenant nor its agents, employees, contractors, guests or invitees
shall smoke or permit smoking in the Common Areas, unless the Common Areas
have been declared a designated smoking area by Landlord, nor shall the
above parties allow smoke from the
<PAGE>
Premises to emanate into the Common Areas or any other part of the
Building. Landlord shall have the right to designate the Building
(including the Premises) as a non-smoking building.
22. Landlord shall have the right to designate and approve standard window
coverings for the Premises and to establish rules to assure that the
Building presents a uniform exterior appearance. Tenant shall ensure, to
the extent reasonably practicable, that window coverings are closed on
windows in the Premises while they are exposed to the direct rays of the
sun.
23. Deliveries to and from the Premises shall be made only at the times, in the
areas and through the entrances and exits designated by Landlord. Tenant
shall not make deliveries to or from the Premises in a manner that might
interfere with the use by any other tenant of its premises or of the Common
Areas, any pedestrian use, or any use which is inconsistent with good
business practice.
24. The work of cleaning personnel shall not be hindered by Tenant after 5:30
p.m., and cleaning work may be done at any time when the offices are
vacant. Windows, doors and fixtures may be cleaned at any time. Tenant
shall provide adequate waste and rubbish receptacles to prevent
unreasonable hardship to the cleaning service.
<PAGE>
EXHIBIT C
COMMENCEMENT LETTER
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INTENTIONALLY OMITTED
<PAGE>
EXHIBIT D
WORK LETTER
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INTENTIONALLY OMITTED
<PAGE>
EXHIBIT E
ADDITIONAL PROVISIONS
---------------------
This Exhibit is attached to and made a part of the Lease and is entered
into as of the _________ day of ___________________, by and between EOP-Columbia
Center, L.L.C., a Delaware limited liability company ("Landlord") and AVENUE A,
INC., a Washington corporation ("Tenant") for space in the Building located at
701 Fifth Avenue, Seattle, Washington 98104.
I. Parking.
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A. During the Term, Tenant shall have the right to receive from Landlord
and Landlord agrees to grant to Tenant up to a total of 12 unreserved
parking permits (the "Permits") in, or on the roof of, the Building
garage ("Garage") for the use of Tenant and its employees, the number
of Permits used by Tenant to be subject to Tenant's election made from
time to time. No deductions or allowances shall be made for days when
Tenant or any of its employees does not utilize the parking facilities
or for Tenant utilizing less than all of the Permits. Tenant shall
not have the right to lease or otherwise use more than the number of
unreserved Permits set forth above.
B. During the initial Term, Tenant shall pay Landlord, as Additional Rent
in accordance with Article IV of the Lease, the sum of $240.00 per
month, for each unreserved Permit purchased by Tenant hereunder, as
such rates may be adjusted from time-to-time to reflect the then
current rate for parking in the Garage.
C. Except for particular spaces and areas designated by Landlord for
reserved parking, all parking in the Garage and surface parking areas
serving the Building shall be on an unreserved, first-come, first-
served basis.
D. Landlord shall not be responsible for money, jewelry, automobiles or
other personal property lost in or stolen from the Garage or the
surface parking areas regardless of whether such loss or theft occurs
when the Garage or other areas therein are locked or otherwise
secured. Except as caused by the negligence or willful misconduct of
Landlord and without limiting the terms of the preceding sentence,
Landlord shall not be liable for any loss, injury or damage to persons
using the Garage or the surface parking areas or automobiles or other
property therein, it being agreed that, to the fullest extent
permitted by law, the use of the Permits shall be at the sole risk of
Tenant and its employees.
E. Landlord shall have the right from time to time to promulgate
reasonable rules and regulations regarding the Garage, the surface
parking areas, if any, the Permits and the use thereof, including, but
not limited to, rules and regulations controlling the flow of traffic
to and from various parking areas, the angle and direction of parking
and the like. Tenant shall comply with and cause its employees to
comply with all such rules and regulations as well as all reasonable
additions and amendments thereto.
F. Tenant shall not store or permit its employees to store any
automobiles in the Garage or on the surface parking areas without the
prior written consent of Landlord. Except for emergency repairs,
Tenant and its employees shall not perform any work on any automobiles
while located in the Garage or on the Property. If it is necessary
for Tenant or its employees to leave an automobile in the Garage or on
the surface parking areas overnight, Tenant shall provide Landlord
with prior notice thereof designating the license plate number and
model of such automobile.
G. Landlord shall have the right to temporarily close the Garage or
certain areas therein in order to perform necessary repairs,
maintenance and improvements to the Garage or the surface parking
areas, if any.
H. Tenant shall not assign or sublease any of the Permits without the
consent of
<PAGE>
Landlord. Landlord shall have the right to terminate this Parking
Agreement with respect to any Permits that Tenant desires to sublet or
assign.
I. Landlord may elect to provide parking cards or keys to control access
to the Garage or surface parking areas, if any. In such event,
Landlord shall provide Tenant with one card or key for each Permit
that Tenant is granted hereunder, provided that Landlord shall have
the right to require Tenant or its employees to place a deposit on
such access cards or keys and to pay a fee for any lost or damaged
cards or keys.
J. Landlord hereby reserves the right to enter into a management
agreement or lease with an entity for the Garage ("Garage Operator").
In such event, Tenant, upon request of Landlord, shall enter into a
parking agreement with the Garage Operator and pay the Garage Operator
the monthly charge established hereunder, and Landlord shall have no
liability for claims arising through acts or omissions of the Garage
Operator unless caused by Landlord's negligence or willful misconduct.
It is understood and agreed that the identity of the Garage Operator
may change from time to time during the Term. In connection
therewith, any parking lease or agreement entered into between Tenant
and a Garage Operator shall be freely assignable by such Garage
Operator or any successors thereto.
IN WITNESS WHEREOF, Landlord and Tenant have executed this exhibit as of
the day and year first above written.
LANDLORD:
EOP-Columbia Center, L.L.C.,
a Delaware limited liability company
By: EOP Operating Limited Partnership, a
Delaware limited partnership,
its sole member
By: Equity Office Properties Trust,
a Maryland real estate investment
trust, its managing general partner
By:
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Name:
---------------------------
Title:
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TENANT:
AVENUE A, INC., a Washington corporation
By: /s/ Robert M. Littauer
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Name: Robert M. Littauer
---------------------------
Title: VP
--------------------------