Washington-Seattle-1260 Mercer Street Lease - Blume Yale LP and Onvia.com Inc.
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MERCER YALE BUILDING
AMENDED AND RESTATED
OFFICE LEASE AGREEMENT
Landlord: BLUME YALE LIMITED PARTNERSHIP
Tenant: ONVIA.COM INC.
Date: February 8, 2000
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TABLE OF CONTENTS
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ARTICLE 1. PREMISES...........................................................1
Section 1.1 Premises Defined.................................................1
Section 1.2 Alterations......................................................1
Section 1.3 Condition of Premises............................................1
Section 1.4 Common Areas.....................................................1
ARTICLE 2. BUSINESS PURPOSE AND USE...........................................1
Section 2.1 Permitted Uses...................................................1
Section 2.2 Prohibited Uses..................................................2
Section 2.3 Compliance With Laws.............................................2
ARTICLE 3. TERM...............................................................2
Section 3.1 Term.............................................................2
Section 3.2 Lease Year.......................................................3
Section 3.3 Possession by Tenant.............................................3
ARTICLE 4. RENT...............................................................3
Section 4.1 Basic Rent.......................................................3
Section 4.2 Operating Expenses...............................................3
Section 4.3 Rent.............................................................7
Section 4.4 Place of Payment.................................................7
ARTICLE 5. PREPAID RENT.......................................................7
Section 5.1 Prepaid Rent.....................................................7
ARTICLE 6. TAXES...............................................................7
Section 6.1 Personal Property Taxes..........................................7
Section 6.2 Business Taxes...................................................7
Section 6.3 Right to Contest.................................................8
ARTICLE 7. MAINTENANCE, REPAIRS AND ALTERATIONS...............................8
Section 7.1 Landlord's and Tenant's Improvements.............................8
Section 7.2 Services to Be Furnished by Landlord.............................8
Section 7.3 Tenant's Maintenance and Repairs.................................9
Section 7.4 Tenant's Alterations.............................................9
Section 7.5 Liens............................................................9
ARTICLE 8. INSURANCE..........................................................9
Section 8.1 Use; Rate........................................................9
Section 8.2 Liability Insurance..............................................9
Section 8.3 Worker's Compensation Insurance.................................10
Section 8.4 Casualty Insurance..............................................10
Section 8.5 Compliance With Regulations.....................................10
Section 8.6 Waiver of Subrogation...........................................10
Section 8.7 General Requirements............................................10
Section 8.8 Blanket Insurance...............................................10
ARTICLE 9. DESTRUCTION AND CONDEMNATION......................................11
Section 9.1 Total or Partial Destruction....................................11
Section 9.2 Condemnation....................................................12
Section 9.3 Sale Under Threat of Condemnation...............................12
ARTICLE 10. INDEMNITY AND WAIVER.............................................12
Section 10.1 Indemnity......................................................12
Section 10.2 Waiver.........................................................13
ARTICLE 11. DELAYS...........................................................13
Section 11.1 Delays.........................................................13
ARTICLE 12. ASSIGNMENT, SUBLEASE AND SUCCESSION..............................13
Section 12.1 Consent Required...............................................13
Section 12.2 Landlord's Consent.............................................14
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Section 12.3 Terms of Assignment or Sublease; Profit on Approved Assignment.14
Section 12.4 General Conditions.............................................15
ARTICLE 13. SURRENDER OF POSSESSION..........................................16
Section 13.1 Surrender......................................................16
Section 13.2 Condition at Time of Surrender.................................16
ARTICLE 14. HOLDING OVER.....................................................16
Section 14.1 Holding Over...................................................16
ARTICLE 15. ENTRY BY LANDLORD................................................16
Section 15.1 Entry by Landlord..............................................16
Section 15.2 Failure to Surrender...........................................17
ARTICLE 16. SUBORDINATION....................................................17
Section 16.1 Lease Subordinate To Mortgages.................................17
Section 16.2 Estoppel Certificates..........................................17
ARTICLE 17. DEFAULT AND REMEDY................................................17
Section 17.1 Events of Tenant's Default.....................................17
Section 17.2 Remedies.......................................................18
Section 17.3 Reletting......................................................19
Section 17.4 Default of Landlord............................................19
Section 17.5 Non-Waiver.....................................................19
Section 17.6 Mortgagee Protection...........................................19
ARTICLE 18. LIMITATION OF LIABILITY..........................................20
Section 18.1 Limitation of Landlord's Liability.............................20
Section 18.2 Applicability..................................................20
ARTICLE 19. NOTICES..........................................................20
Section 19.1 Notices........................................................20
ARTICLE 20. HAZARDOUS SUBSTANCES.............................................20
Section 20.1 Presence and Use of Hazardous Substances.......................20
Section 20.2 Landlord Indemnification.......................................20
Section 20.3 Cleanup Costs, Default and Indemnification.....................20
ARTICLE 21. MISCELLANEOUS....................................................21
Section 21.1 Headings.......................................................21
Section 21.2 Amendments.....................................................21
Section 21.3 Time of the Essence............................................21
Section 21.4 Entire Agreement...............................................21
Section 21.5 Language.......................................................21
Section 21.6 Invalidity.....................................................21
Section 21.7 Late Charges...................................................21
Section 21.8 [Not Used].....................................................21
Section 21.9 Computation of Time............................................21
Section 21.10 Applicable Law................................................21
Section 21.11 Attorneys' Fees...............................................21
Section 21.12 Termination...................................................22
Section 21.13 Broker's Commission...........................................22
Section 21.14 Signs or Advertising..........................................22
Section 21.15 Transfer of Landlord's Interest...............................22
Section 21.16 Counterparts..................................................22
Section 21.17 Quiet Enjoyment...............................................22
Section 21.18 Authority.....................................................22
Section 21.19 Name of Building..............................................22
Section 21.20 Rules and Regulations.........................................22
Section 21.21 Consents......................................................22
Section 21.22 Agency Disclosure.............................................23
Section 21.23 Lease Summary, Addendum and Exhibits..........................23
Section 21.24 Survival......................................................23
Section 21.25 Additional Provisions.........................................23
Section 21.26 Amendment and Restatement.....................................23
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Exhibits:
A - Tenant Floor Plan
B - Description of Property
C - Workletter
D - Rules and Regulations
E - Additional Provisions
F - Estoppel Certificate
G - Subordination
H - Parking Agreement
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MERCER YALE BUILDING
AMENDED AND RESTATED
OFFICE LEASE AGREEMENT
THIS AMENDED AND RESTATED OFFICE LEASE AGREEMENT is made as of this 8th day
of February, 2000, by and between BLUME YALE LIMITED PARTNERSHIP, a Washington
limited partnership (hereinafter referred to as "Landlord"), and ONVIA.COM INC.,
a Washington corporation (hereinafter referred to as "Tenant").
LEASE SUMMARY
Section 1.1 The Building
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(a) Name: Mercer Yale Building
(b) Address: 1260 Mercer Street
Seattle, Washington 98109
(c) Total Rentable Area of Building: 104,500 square feet
The Premises Collectively, the Stage I Premises, Stage II
Premises and Stage III Premises (as defined
immediately below)
Stage I Premises
(a) Total Rentable Area: 51,000 square feet
(b) Floor Location: Third and Fourth
Stage II Premises
(a) Total Rentable Area: 25,500 square feet
(b) Floor Location: Second
Stage III Premises
(a) Total Rentable Area: 28,000 square feet
(b) Floor Location: First and Plaza
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Section 2.1 Use of Premises and
Tenant's Trade Name
(a) Tenant's Trade Name: Onvia.com
(b) Use of Premises: General Office
Section 3.1 Lease Term
(a) One Hundred Twenty (120) months
(b) Target Lease Commencement Date: March 1, 2000.
Section 4.1 Basic Rent
Rent Per Rentable
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Month(s) Monthly Rent Installment Sq. Ft. Per Year
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1 - 24 $217,916.66 $24.00 (Stage I); $26.00 (Stage II; III)
25 - 48 $226,625.00 $25.00 (Stage I); $27.00 (Stage II; III)
49 - 72 $235,333.33 $26.00 (Stage I); $28.00 (Stage II; III)
73 - 84 $239,687.50 $26.50 (Stage I); $28.50 (Stage II; III)
85 - 96 $244,041.66 $27.00 (Stage I); $29.00 (Stage II; III)
97 -108 $248,291.66 $28.00 (Stage I); $29.00 (Stage II; III)
109-120 $257,000.00 $29.00 (Stage I); $30.00 (Stage II; III)
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Subject to Section 4.1.2 below.
Section 4.2 Operating Expenses
(a) Tenant's Proportionate Share: 100.00%
Section 5.1 Prepaid Rent
(a) Prepaid Rent: $662,458.32
(b) Month(s) to which the
Prepaid Rent is applied: Month 01 ($157,250.00)
May 1, 2000 ($60,666.66)
Month 13 ($217,916.66)
Month 25 ($226,625.00)
Section 19.1 Addresses for Notices
(a) Landlord: (b) Tenant:
Before Lease Commencement Date:
The Blume Company Onvia.com
2825 Eastlake Avenue East 1000 Dexter Avenue, Fourth Floor
Suite 115 Attn: Chief Financial Officer
Seattle, Washington 98102 Seattle, Washington 98109
After Lease Commencement Date:
Onvia.com
1260 Mercer Street, Suite 400
Attn: Chief Financial Officer
Seattle, Washington 98109
Section 21.25 Stipulated Parking Spaces: Two Hundred Thirty (230).
Section 21.13 Broker's
(a) Landlord's Leasing
Representative
(Broker/Salesperson): Rich Mermelstein and Tim O'Keefe
(b) Landlord's Leasing
Representative (Firm): Colliers International
(c) Address: 601 Union Street, Suite 5300
Seattle, Washington 98101-4045
(d) Tenant's Leasing
Representative
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(Broker/Salesperson): Dan Flinn and Stu Ford
(e) Tenant's Leasing
Representative (Firm): Flinn Ferguson
(f) Address: 601 Union Street, Suite 3636
Seattle, Washington 98101
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MERCER YALE BUILDING
OFFICE LEASE AGREEMENT
ARTICLE 1. PREMISES
Section 1.1 Premises Defined. Landlord hereby leases to Tenant, and
Tenant hereby leases from Landlord, upon the terms and conditions hereinafter
set forth, those certain premises and improvements consisting of the floor area
and the location described in the Lease Summary and designated on the plans
attached hereto as Exhibit A (hereinafter referred to as the "Premises"). The
Premises are located in the building known as the Mercer Yale Building (the
"Building") which is situated in the City of Seattle, County of King, State of
Washington and located upon the real property described in Exhibit B (the
"Property"). For convenience purposes, portions of the Premises are sometimes
referred to herein as the "Stage I Premises", which includes the Third and
Fourth Floors of the Building, the "Stage II Premises", which includes the
Second Floor of the Building, and the "Stage III Premises", which includes the
First Floor and the Plaza.
Section 1.2 Alterations. Landlord and Tenant acknowledge that Exhibit A
sets forth the floor plan for the floor(s) of the Building on which the Premises
is located and the location of the Premises therein. Landlord may in its sole
discretion increase, decrease, or change the number, locations and dimensions of
any hallways, lobby areas and other improvements shown on Exhibit A that are not
within the Premises. Landlord reserves the right from time to time (a) to
install, use, maintain, repair, relocate and replace pipes, ducts, conduits,
wires, and appurtenant meters and equipment for service to the Premises or to
other parts of the Building which are above the ceiling surfaces, below the
floor surfaces, within the walls and in the central core areas of the Building
which are located within the Premises or located elsewhere in the Building; (b)
to alter or expand the Building; and (c) to alter, relocate or substitute any of
the Common Areas, as defined in Section 1.4 below. Landlord further reserves
the right to install at any time vertical risers and associated duct work within
portions of the Premises designed to provide access between the roof of the
Building and all levels of the Building through existing "punch out" areas
located in the slab floors for the installation of cooling towers and other
equipment and apparatus servicing floors beneath the floors comprising the
Premises. Landlord agrees to execute any work permitted pursuant to this Section
1.2 in a manner (x) designed to minimize disruption to Tenant's business
operations and (y) such that such work does not result in additional charges or
expenses to Tenant (except to the extent that the cost of such work constitutes
an Operating Expense pursuant to Section 4.2.6).
Section 1.3 Condition of Premises. The Premises are leased by Landlord
and accepted by Tenant in an "as is" condition, subject to any improvements,
alterations or modifications to be made pursuant to Article 7 below, and the
requirement of Landlord to complete the improvements specified therein.
Section 1.4 Common Areas. So long as Tenant occupies the Premises under
the terms of this Lease, Tenant, its licensees, invitees, customers and
employees shall have the non-exclusive right to use all entrances, lobbies, and
other public areas of the Building (the "Common Areas") in common with Landlord,
other Building tenants, and their respective licensees, invitees, customers and
employees. The use of the Common Areas shall be subject to the terms and
conditions of this Lease.
ARTICLE 2. BUSINESS PURPOSE AND USE
Section 2.1 Permitted Uses. Tenant shall use the Premises solely for
the purposes specified in the Lease Summary, and for no other business or
purpose without the prior written consent of the Landlord.
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Section 2.2 Prohibited Uses. Tenant shall not do or permit anything to
be done in or about the Premises, nor bring or keep anything therein, which will
(a) in any way increase the existing rate of or adversely affect any policy of
fire or other insurance upon the Building or any of its contents, or cause a
cancellation of any insurance policy covering any part thereof or any of its
contents; (b) obstruct or interfere in any way with the rights of other tenants
or occupants of the Building or injure or unreasonably annoy any of them; or (c)
use or allow the Premises to be used for any improper, unlawful or objectionable
purposes. Tenant shall not cause, maintain or permit any nuisance in, on or
about the Premises, nor shall Tenant commit or suffer to be committed any waste
in, on or about the Premises. Tenant shall not place upon or install in windows
or other openings any signs, symbols, drapes, or other material without written
approval of Landlord (subject to Tenant's right to install a sign on the
Building as set forth in Exhibit E). Tenant shall not place any object or
barrier within, or otherwise obstruct, any of the Common Areas.
Section 2.3 Compliance With Laws. Tenant shall at all times comply with
all laws, ordinances and any regulations promulgated by any governmental
authority having jurisdiction over the Building and/or the Premises. To the
extent Landlord is required by the City of Seattle to maintain carpooling and
public transit programs, Tenant shall use commercially reasonable efforts to
cooperate in the implementation and use of these programs by and among Tenant's
employees.
ARTICLE 3. TERM
Section 3.1 Term. The term of this Lease shall commence on the first
day of the calendar month in which the earlier of the following dates occurs
(such first day of the calendar month shall be referred to as the "Lease
Commencement Date"):
3.1.1 The date the "Tenant Improvements" pertaining to the Stage I
Premises and which are described in Part II of Exhibit C are approved by the
appropriate governmental agency as being in accordance with its building code
and the building permit issued for such improvements, as evidenced by the
issuance of a final building inspection approval; or
3.1.2 The date Landlord's architect and general contractor have
both certified in writing to Tenant that the Tenant Improvements pertaining to
the Stage I Premises which are described in Part II of Exhibit C have been
substantially completed in accordance with the plans and specifications
therefor; or
3.1.3 The date that Tenant takes possession or beneficial occupancy
of all or any portion of the Premises.
provided, that if the first to occur of Sections 3.1.1, 3.1.2 or 3.1.3 above
falls on a day other than the first day of a calendar month, Tenant's rent and
other obligations pursuant to this Lease for the first month of the Lease Term
(as defined below) shall be prorated based upon the number of days from and
including the first to occur of Sections 3.1.1, 3.1.2 or 3.1.3 above to the end
of such first month.
From the Lease Commencement Date, the term of this Lease shall continue for the
time period specified in the Lease Summary, the expiration of which shall be the
Termination Date of this Lease, unless this Lease is sooner terminated as
hereinafter provided. The period between the Lease Commencement Date and the
Termination Date shall be referred to as the "Lease Term" or "Term". The
Landlord and Tenant acknowledge that certain obligations under the provisions of
this Lease may be binding upon them prior to the Lease Commencement Date, such
as, but not limited to, the provisions of Exhibit C, and Landlord and Tenant
shall be bound by such provisions prior to the Lease Commencement Date.
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Section 3.2 Lease Year. "Lease Year" shall mean that period of twelve
(12) consecutive months which ends on December 31 of each year and which falls
within the Term of this Lease; provided, however, the first Lease Year (which
may be a partial Lease Year) shall mean that period from the Lease Commencement
Date until the December 31 first occurring after the Lease Commencement Date and
the last Lease Year (which may be a partial Lease Year) shall mean that period
from the January 1st last occurring during the Term of this Lease until the
Termination Date.
Section 3.3 Possession by Tenant.
3.3.1 Landlord shall deliver to Tenant, and Tenant shall accept from
Landlord, possession of the Premises, upon the date of substantial completion of
the "Tenant Improvements" for the Stage I Premises described in Part II of
Exhibit C. Certification by Landlord's architect (the "Project Architect") and
Landlord's general contractor as to the substantial completion of the Tenant
Improvements shall be conclusive and binding upon Landlord and Tenant.
3.3.2 If Landlord cannot deliver possession of the Premises to
Tenant by the Target Lease Commencement Date, as specified in the Lease Summary,
then this Lease shall not be void or voidable, nor shall Landlord be liable to
Tenant for any loss or damage resulting therefrom, but in that event all Rent
shall be abated until the Landlord delivers possession of the Premises to Tenant
in the condition described in the first sentence of Section 3.3.1 (except to the
extent any such delay is caused by Tenant or anyone acting through or on behalf
of Tenant).
ARTICLE 4. RENT
Section 4.1 Basic Rent.
4.1.1 Tenant shall pay to Landlord as minimum rental for the use and
occupancy of the Premises the "Basic Rent" as specified in the Lease Summary.
Basic Rent shall be payable in Monthly Rent Installments of the amount specified
in the Lease Summary, with the Monthly Rent Installment attributable to each
month of the Lease Term payable on or before the 25th day of the preceding
month. The first Monthly Rent Installment shall be due on or before the Lease
Commencement Date. Basic Rent for any partial year shall be prorated based upon
the actual number of months left in such partial year. The Monthly Rent
Installment for any partial month shall be prorated based upon the actual number
of days in that partial month. The Basic Rent set forth in the Lease Summary
shall not be adjusted (either upward or downward) despite subsequent
measurements of the rentable area of the Premises which identify discrepancies
between the actual area and that shown in the Lease Summary.
4.1.2 Notwithstanding the foregoing, Tenant shall pay to Landlord
the Basic Rent shown in the Lease Summary for Month 01 of the Term for the Stage
III Premises (i.e., $26.00 per RSF per month) on or before April 25, 2000
(respecting the Basic Rent corresponding to the month commencing May 1, 2000),
regardless of whether the Lease Commencement Date occurs before or after May 1,
2000.
Section 4.2 Operating Expenses.
4.2.1 This is a "triple net lease". With respect to each Lease Year
commencing with the first Lease Year, and commencing as of the Lease
Commencement Date, the Tenant shall pay, in monthly installments and as
"Additional Rent", an amount equal to the "Tenant's Proportionate Share" (as
hereinafter defined) of actual "Total Operating Expenses" (as hereinafter
defined). The monthly installment of Additional Rent attributable to each month
during the Lease Term shall be due and payable on the 25th day of the
immediately preceding month. Notwithstanding anything herein to the contrary,
Tenant shall in no event pay less than the Basic Rent in any calendar year.
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4.2.2 "Tenant's Proportionate Share" shall be computed by dividing
the Total Rentable Area of the Premises by the Total Rentable Area of the
Building. Tenant's Proportionate Share upon the Lease Commencement Date for the
entire Premises is as specified in the Lease Summary.
4.2.3 "Rentable Area of the Building" and "Rentable Area of the
Premises" are defined as those areas obtained by measuring the Building and
Premises using Landlord's method of measurement, which method is based
substantially on the method of measuring floor area in office buildings
specified in the American National Standard Publication ANSI/BOMA Z65.1-1996
published by the Building Owners and Managers Association International
(otherwise known as "BOMA Standard"). The Total Rentable Area of the Building
and Total Rentable Area of the Premises, as of the Lease Commencement Date, are
as specified in the Lease Summary. The Total Rentable Area of the Premises
exceeds the usable area of the Premises to include a pro rata share of hallways,
restrooms, and other common elements located on the floor on which the Premises
are located.
4.2.4 Landlord shall provide Tenant with a written estimate of
Total Operating Expenses for the first Lease Year not later than the Lease
Commencement Date. Landlord shall provide Tenant with a written estimate of
Total Operating Expenses for each succeeding year not later than sixty (60) days
after the start of each Lease Year during the Lease Term. Tenant shall then pay
to Landlord, monthly in advance, one-twelfth (1/12) of Tenant's Proportionate
Share of the estimated Total Operating Expenses for the said Lease Year. In the
event any item of actual Operating Expenses, including without limitation those
items identified in subparagraph 4.2.6 below, increases five percent (5%) or
more in price or cost over any twelve (12) month period, Landlord shall have the
option to proportionally increase the amount of Tenant's monthly remittance on
account of any such increase upon thirty (30) days' written notice from Landlord
to Tenant.
4.2.5 Within one hundred twenty (120) days after the end of every
Lease Year during the Lease Term, Landlord shall provide the Tenant with a
written statement of the actual Total Operating Expenses for that Lease Year.
If the actual Total Operating Expenses should exceed the estimated amount with
respect to such Lease Year, then Tenant shall pay Landlord the additional amount
due to the Landlord within thirty (30) days and, if actual Total Operating
Expenses should be less than the estimated Total Operating Expenses for that
Lease Year, then Landlord shall credit, against future Additional Rent due under
this Article, the amount of any overpayment by Tenant; provided, that if any
overpayment by Tenant exists at the Termination Date, Landlord shall remit to
Tenant the amount of any such overpayment within thirty (30) days of the date of
determination.
4.2.6 "Operating Expenses" as used herein shall mean all costs,
expenses and other charges incurred by Landlord in connection with the
ownership, operation, repair and maintenance of the Property and the Building as
an office building in Seattle, Washington, including but not limited to:
4.2.6.1 Wages, salaries and fringe benefits of all employees
and contractors engaged in the management, operation and maintenance of the
Property and/or the Building (but only to the extent so engaged); employer's
Social Security taxes, unemployment taxes or insurance, and any other taxes
which may be levied against Landlord on those wages and salaries; and the cost
to Landlord of disability and hospitalization insurance and pension or
retirement benefits for these employees;
4.2.6.2 All supplies and materials used in the operation and
maintenance of the Property and/or the Building;
4.2.6.3 Cost of water and power, and cost of heating, lighting,
air conditioning and ventilating the Building, the Common Areas and the
Premises, which costs shall be based on either Tenant's Proportionate Share or
separately allocated to the Premises, at Landlord's option, based upon either
direct usage, if separately metered, or an appropriate allocation among all
tenants consuming those services as measured from the meter monitoring this
usage;
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4.2.6.4 The electrical costs incurred in the operation of the
"chiller" for the Building, which shall be allocated pro rata among the Building
tenants;
4.2.6.5 Cost of maintenance, depreciation and replacement of
machinery, tools and equipment (if owned by Landlord) and for rental paid for
such machinery, tools and equipment (if rented) used in connection with the
operation or maintenance of the Building maintenance (except that if such
equipment is used at a location other than the Property, all costs attributable
to such equipment shall be allocated proportionately to the Property based on
the ratio of the number of hours of operation at the Property during a specific
time period [such as a month, Lease Year, calendar year or fiscal year] divided
by the total number of hours of operation of such equipment at all locations
during the same time period);
4.2.6.6 All premiums and deductibles on policies of
compensation, public liability, property damage, automobile, garage keepers,
rental loss and any other policies of insurance maintained by Landlord with
respect to the Property, Building or any insurable interest therein. Cost of
casualty and liability insurance applicable to the Property and/or the Building,
the improvements therein, and Landlord's personal property used in connection
therewith;
4.2.6.7 Cost of janitorial services, repairs and general
maintenance;
4.2.6.8 Any capital improvements made or installed (a) to be in
compliance with any applicable government statutes, ordinances, regulations or
other requirements, and (b) for purposes of saving labor or otherwise reducing
applicable operating costs amortized over the useful life of such improvements,
as determined by Landlord in accordance with generally accepted accounting
principles and practices in effect at the time of acquisition of the capital
item;
4.2.6.9 Costs in connection with maintaining and operating any
garage owned by the Landlord for use by tenants of the Building;
4.2.6.10 All taxes and assessments and governmental charges
whether federal, state, county or municipal and any other taxes and assessments
attributable to the Property and/or the Building or its operation, including
without limitation real property taxes and assessments and any tax or other
levy, however denominated, on or measured by the rental collected by the
Landlord with respect to the Building, or on Landlord's business of leasing the
Building, but excluding federal and state taxes on income and corporate
franchise taxes (Any such assessments which are payable in installments shall
only be included in Operating Expenses to the extent Landlord had elected to pay
the same over the longest installment permitted by the jurisdiction imposing
such assessment and Tenant shall not be responsible for the portion thereof
attributable to periods not included in the Lease Term. If at any time during
the Lease Term a tax, license fee or excise on rents or other tax, however
described, is levied or assessed against Landlord on account of the rent
expressly reserved hereunder, as a substitute in whole or in part for taxes
levied or assessed on land and buildings or on land or buildings, such tax or
excise on rents or other tax shall be included within the definition of
Operating Expenses, but only to the extent of the amount thereof which is
lawfully levied, assessed or imposed as a direct result of Landlord's ownership
of this Lease or of the rentals accruing under this Lease);
4.2.6.11 The cost of maintaining any public transit system,
vanpool, or other public or semi-public transportation imposed upon Landlord's
ownership and operation of the Building;
4.2.6.12 Cost of all accounting and other professional fees
incurred in connection with the operation of the Property and/or the Building;
4.2.6.13 A management fee, not to exceed current market rates,
which may be payable to the Landlord;
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4.2.6.14 Cost of replacing lamps, bulbs, starters and ballasts
used in the Building, other than those for which the cost is billed directly to
a tenant.
Notwithstanding the foregoing, Operating Expenses shall not include
expenses for which the Landlord is reimbursed or indemnified (either by an
insurer, condemnor, tenant or otherwise); expenses incurred in leasing or
procuring tenants (including, without limitation, lease commissions, legal
expenses, advertising costs, and expenses of renovating space for tenants);
legal, accounting and other expenses arising out of disputes with tenants or
other occupants of the Building, the enforcement of the provisions of any lease
of space in the Building or the defense of Landlord's title to or interest in
the Property, Building or any portion of either; fines or penalties incurred due
to violations by Landlord of any governmental rule or authority; provided that
if, as a consequence of any such violation, Landlord is required to incur costs
on an ongoing basis which are in the nature of Operating Expenses as described
herein, such costs shall be included in Operating Expenses; except as provided
in Section 4.2.6.1, Landlord's general corporate overhead and general
administrative expenses (excluding reimbursement of out-of-pocket costs for
postage, photocopies, and telephone costs incurred in operating the Building);
interest or amortization payments on any mortgage or mortgages, and rental under
any ground or underlying lease or leases; costs of any work or service performed
for or facilities furnished to a tenant at the tenant's cost; the cost of
correcting defects (latent or otherwise) in the construction, design,
workmanship or material of the Building, except those conditions (not occasioned
by construction defects) resulting from wear and tear shall not be deemed
defects; and costs of capital improvements and depreciation and amortization
(except as provided in Section 4.2.6.8 or otherwise above). Landlord and Tenant
shall each from time to time upon request of the other sign a written memorandum
confirming the amount of the Additional Rent as adjusted from time to time
hereunder. Landlord shall not collect in excess of one hundred percent (100%) of
the Total Operating Expenses for any Lease Year and shall not recover any item
of cost more than once. In computing Operating Expenses for any period, if less
than one hundred percent (100%) of the rentable square feet of the Building are
occupied by tenants during such period, the amount of Operating Expenses will be
deemed to be increased to an amount equal to the like Operating Expenses which
would have been incurred in Landlord's reasonable judgment had such occupancy
been one hundred percent (100%) of the rentable square feet of the Building
during such period.
4.2.7 Tenant shall have the right, upon fulfillment of the
conditions set forth below, to conduct one (1) audit of the Landlord's books and
records covering the Operating Expenses for a particular calendar year to verify
the accuracy of the Landlord's determination of the Operating Expenses for such
period. The conditions which must be met before Tenant shall have the right to
audit the books and records of a particular calendar year are as follows:
4.2.7.1 Tenant must provide Landlord not less than thirty (30)
days' prior written notice of the Tenant's election to audit (the "Tenant's
Notice of Audit"), together with the information concerning the auditor as
outlined in subsection 4.2.7.4 below, which Tenant's Notice of Audit and
information must be delivered to Landlord within thirty (30) days after Tenant's
receipt of the Landlord's statement of actual Operating Expenses for a
particular calendar year.
4.2.7.2 Tenant's audit must be undertaken and completed by
Tenant or its agents at reasonable times during Landlord's normal business hours
at the place where the Landlord's records are kept. Said audit must be commenced
within ninety (90) days of Tenant's receipt of the Landlord's statement of
Operating Expenses for a particular calendar year and completed within a
reasonable time of commencement.
4.2.7.3 Tenant shall not entitled to conduct an audit if
Landlord has delivered written notice to Tenant that Tenant is in default under
this Lease.
4.2.7.4 At the time the Tenant delivers its Tenant's Notice of
Audit to Landlord, the Tenant shall also provide evidence that the audit will be
a "fair and true audit." For the purposes hereof, the term "fair and true audit"
shall mean that the review of the subject books and records shall be undertaken
and completed by the Tenant, its officers or employees, or by an independent
accounting firm being paid on an hourly basis and that in no event will the
party auditing the books (or that
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party's employer or principal) directly or indirectly base the compensation or
fees for such audit work upon a percentage of the savings found or the return
due the Tenant by reason of that audit.
4.2.7.5 The Tenant's rights to audit the Landlord's books and
records shall be strictly limited to the right set forth above and the Tenant
shall have no right to audit any of the Landlord's books or records for any
calendar year before or after the Lease Term or for any calendar year other than
the immediately preceding calendar year as set forth above. All costs and
expenses of the audit shall be borne solely by the Tenant.
4.2.7.6 A true and correct copy of the audit shall be delivered
to the Landlord within fifteen (15) days of the completion of such audit if
Tenant requests a credit for overpayment. Any overpayment shown by such audit
shall be subject to the Landlord's prompt verification and, upon such
verification, shall be given to the Tenant as a credit against Operating
Expenses next falling due or, if after the expiration of the Term, shall be
promptly paid directly to Tenant.
Section 4.3 Rent. The terms "Rent" and "Rental" as used in this Lease
shall mean all amounts to be paid hereunder by Tenant whether those sums are
designated as Basic Rent, Additional Rent or the amounts payable for the
Stipulated Parking Spaces, all as the same may be adjusted by the terms of this
Lease. Failure by Tenant to pay any sum of Rent as defined under this Article 4
shall entitle Landlord to pursue any or all remedies specified in this Lease as
well as remedies specified in RCW Chapter 59.12 or otherwise allowed by law.
Section 4.4 Place of Payment. All Rent shall be paid to the Landlord on
or before the 25th day of the calendar month preceding the month to which the
particular item comprising the Rent relates, at the address to which notices to
Landlord are to be given. All Rental payments to be made hereunder, whether
Basic Rent, or Additional Rent or otherwise, are to be made without deduction,
setoff, prior notice or demand by Landlord.
ARTICLE 5. PREPAID RENT
Section 5.1 Prepaid Rent. Contemporaneously with Tenant's execution of
this Lease, Tenant shall pay to Landlord the sum set forth as Prepaid Rent in
the Lease Summary to be applied to Basic Rent for the month during the Term
hereof as specified in the Lease Summary. In the event Tenant defaults under
the terms of this Lease prior to the application of the Prepaid Rent, such sums
shall not be applicable to the Basic Rent as set forth in the Lease Summary but
shall be held by Landlord as a security deposit for the full and faithful
performance of every provision of this Lease to be performed by Tenant.
ARTICLE 6. TAXES
Section 6.1 Personal Property Taxes. Tenant shall pay before
delinquency all license fees, public charges, property taxes and assessments on
the furniture, fixtures, equipment and other property of or being used by Tenant
at any time situated on or installed in the Premises.
Section 6.2 Business Taxes. Tenant shall pay before delinquency all
taxes and assessments or license fees levied, assessed or imposed by law or
ordinance, by reason of the use of the Premises for the specific purposes set
forth in this Lease.
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Section 6.3 Right to Contest. Notwithstanding the foregoing, Tenant
shall have the right to contest the validity or amount of any taxes,
assessments, duties or fees contemplated by Sections 6.1 or 6.2 as long as
Tenant first provides such security in lieu of payment as Landlord may
reasonably require and Landlord's interest in the Premises or the Property is
not rendered subject to forfeiture, sale or disturbance. In such case, during
the bona fide period of such contest, Tenant will not be in default hereunder.
However, upon final determination of such contest, Tenant must immediately pay
the amount found to be due thereby, if any, together with all costs, penalties
or interest. After such payment, Tenant will be entitled to the release of any
security.
ARTICLE 7. MAINTENANCE, REPAIRS AND ALTERATIONS
Section 7.1 Landlord's and Tenant's Improvements. Landlord and Tenant
shall, each at its own expense, complete and install in a good and workmanlike
manner within the Stage I Premises those items specified as the "Landlord's
Work" and "Tenant's Work", respectively, on Exhibit C attached hereto.
Section 7.2 Services to Be Furnished by Landlord. Provided Tenant is
not in default under any of the provisions of this Lease, and subject to
reimbursement pursuant to Section 4.2 above, Landlord shall provide the
following services during standard hours of operation of the Building. These
standard hours of operation are 8 a.m. to 6 p.m., Monday through Friday.
7.2.1 Public utilities shall be caused to furnish the Premises with
electricity and water utilized in operating any and all facilities serving the
Premises;
7.2.2 Hot and cold water at those points of supply provided for
general use of other tenants in the Building, central heat and air conditioning
in season, at such times as Landlord normally furnishes these services to other
tenants in the Building and at temperatures and in amounts as are considered by
Landlord to be standard, but this service at times during the weekdays at other
than standard hours of operation for the Project, on weekends and holidays shall
be furnished only upon request of Tenant, who shall bear the entire costs
thereof in respect to the Premises;
7.2.3 Routine maintenance, painting and electric lighting service
for all Common Areas and special service areas of the Building in the manner and
to the extent deemed by Landlord to be standard and consistent with the
operation and maintenance of the Building as a first-class office building in
Seattle, Washington;
7.2.4 Janitorial service on a five (5) day week basis, excluding
Fridays, Saturdays, and legal holidays;
7.2.5 Electrical facilities to provide sufficient power for
typewriters, personal computers and other small office machines of similar low
electrical consumption, but not including electricity required for electronic
data processing equipment, special lighting in excess of building standard, and
any other item of electrical equipment which (itself) consumes more than .5
kilowatts per hour at rated capacity or requires a voltage other than 120 volts
single phase per square foot. If any electrical equipment installed in the
Premises requires air conditioning capacity above that provided by the building
standard system, then the additional air conditioning installation and
corresponding operating costs will be the separate obligation of the Tenant; and
7.2.6 Security for the Building; provided, however, Landlord shall
not be liable to Tenant or any employee, invitee, licensee or sublessee of
Tenant for bodily injury, property damage, or other losses or damages due to
theft, burglary, or other criminal activities occurring in or about the
Building.
In the event Tenant desires any of the aforementioned services in amounts in
excess of those deemed by Landlord to be "standard" and in the event Landlord
elects to provide these additional services, Tenant
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shall pay Landlord as Additional Rent hereunder the cost of providing these
additional services. Failure by Landlord to any extent to furnish any of the
above services, or any cessation thereof, resulting from causes beyond the
control of Landlord, shall not render Landlord liable in any respect for damages
to either person or property, nor shall that event be construed as an eviction
of Tenant, nor result in an abatement of Rent, nor relieve Tenant from any of
Tenant's obligations hereunder (including, but not limited to, the payment of
Rent). Should any of the equipment or machinery utilized in supplying the
services listed herein for any cause cease to function properly, Landlord shall
use commercially reasonable diligence to repair that equipment or machinery
promptly, but Tenant shall have no right to terminate this Lease, and shall have
no claim for a reduction, abatement or rebate of Rent or damages on account of
any interruption in service occasioned thereby or resulting therefrom.
Section 7.3 Tenant's Maintenance and Repairs. Tenant shall be obligated
to maintain and to make all repairs, replacements or additions of any kind
whatsoever to all personal property located within the Premises and to all trade
fixtures, furnishings and carpet located within the Premises. Tenant shall keep
all such items in good condition, subject to ordinary wear and tear. Tenant also
shall be responsible for maintaining and replacing all specialty lamps, bulbs,
starters and ballasts.
Section 7.4 Tenant's Alterations. Subject to Landlord's prior written
approval, Tenant may make, at its expense, additional improvements or
alterations to the Premises which it may deem necessary or desirable. Landlord's
approval to any improvements or alterations may be withheld in Landlord's sole
discretion if such improvements or alterations require any other alteration,
addition, or improvement to be performed or made to any portion of the Building
other than the Premises. Any repairs or new construction by Tenant shall be done
in compliance with all applicable laws, rules, and regulations (including,
without limitation, the Americans with Disabilities Act of 1990 (the "ADA")) and
in conformity with plans and specifications approved by Landlord and shall be
performed by a licensed contractor approved by Landlord; provided, however,
Landlord's consent to any alterations or improvements, or Landlord's approval of
plans and specifications for such alterations or improvements shall create no
responsibility or liability on the part of Landlord for their completeness,
design sufficiency, or compliance with all laws, rules, and regulations
(including, without limitation, the ADA). If requested by Landlord, Tenant shall
post a bond or other security satisfactory to Landlord to protect Landlord
against liens arising from work performed for Tenant. All work performed shall
be done in a workmanlike manner and with materials of the quality and appearance
as exist throughout the Building. Landlord may require Tenant to remove and
restore any improvements or alterations on the termination of this Lease in
accordance with Section 13.2 below.
Section 7.5 Liens. Tenant shall keep the Premises and the Building free
from any liens arising out of any work performed, material furnished, or
obligations incurred by Tenant. If Tenant disputes the correctness or validity
of any claim of lien, Tenant shall, within ten (10) days after written request
by Landlord, post or provide security in a form and amount acceptable to
Landlord to insure that title to the Property remains free from the lien
claimed.
ARTICLE 8. INSURANCE
Section 8.1 Use; Rate. Tenant shall not do anything in or about the
Premises which will in any way tend to increase insurance rates paid by Landlord
on policies of liability or casualty insurance maintained with respect to the
Building and/or Property. In no event shall Tenant carry on any activities
which would invalidate any insurance coverage maintained by Landlord.
Section 8.2 Liability Insurance. Tenant shall during the Lease Term, at
its sole expense, maintain in full force a policy or policies of commercial
general liability insurance issued by one or more insurance carriers, insuring
against liability for injury to or death of persons and loss of or damage to
property occurring in or on the Premises and any portion of the Common Area
which is subject to Tenant's exclusive control. Said liability insurance shall
be in an amount not less than Two Million Dollars ($2,000,000.00) combined
single limit for bodily and personal injury and property damage per occurrence
and not less than Five Million Dollars ($5,000,000.00) in the aggregate.
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Section 8.3 Worker's Compensation Insurance. Tenant shall at all times
maintain Worker's Compensation Insurance in compliance with Washington law.
Section 8.4 Casualty Insurance. Tenant shall pay for and shall maintain
in full force and effect during the Term of this Lease a standard form policy or
policies of property and all-risk coverage with an extended coverage endorsement
covering all interior and storefront glass, whether plate or otherwise, stock in
trade, trade fixtures, equipment, and other personal property located in the
Premises and used by Tenant in connection with its business.
Section 8.5 Compliance With Regulations. Tenant shall, at its own
expense, comply with all requirements, including installation of fire
extinguishers, or automatic dry chemical extinguishing systems, required by
insurance underwriters or any governmental authority having jurisdiction
thereover, necessary for the maintenance of reasonable fire and extended
insurance for the Premises and/or Building.
Section 8.6 Waiver of Subrogation. Any property and all-risk coverage
insurance carried by Landlord or Tenant insuring, in whole or in part, the
Building and/or the Premises, including improvements, alterations and changes in
and to the Premises made by either of them, and Tenant's trade fixtures therein
shall be written in such a manner as to permit the waiver of rights of
subrogation prior to loss by either party against the other in connection with
loss or damage covered by the policies involved. So long as the policy or
policies can be so written and maintained in effect, neither Landlord nor Tenant
shall be liable to the other for any such loss or damage. Either party shall,
upon request by the other party, furnish such other party evidence of its
compliance with this Section 8.6.
Section 8.7 General Requirements.
8.7.1 All policies of insurance required to be carried hereunder by
Tenant shall be written by companies licensed to do business in Washington and
which have A.M. Best rating of not less than A:XIII or better in the "Best's Key
Rating Guide". Tenant shall, when requested by Landlord, furnish Landlord with a
certificate evidencing insurance required to be maintained by Tenant pursuant to
this Article 8 and shall satisfy Landlord that each such policy is in full force
and effect.
8.7.2 The commercial general liability insurance required to be
carried under Section 8.2 above shall be primary and non-contributing with the
insurance carried by Landlord.
8.7.3 Each policy required under Sections 8.2 and 8.4 shall
expressly include, severally and not collectively, as named or additionally
named insured thereunder, the Landlord, Landlord's property manager, and any
person or firm designated by the Landlord and having an insurable interest
thereunder, hereinafter called "Additional Insured," as their respective
interests may appear.
8.7.4 All insurance policies maintained by Tenant shall not be
subject to cancellation in coverage except upon at least thirty (30) days' prior
written notice to Landlord. The policies of insurance or duly executed Accord
Form 27, Evidence of Property Insurance Forms evidencing such policies, together
with satisfactory evidence of the payment of premiums thereon, shall be
deposited with Landlord.
8.7.5 If the Tenant fails to procure and maintain insurance as
required by this Article 8, the Landlord may obtain such insurance and keep it
in effect, and the Tenant shall pay to Landlord the premium cost thereof, upon
demand and as Additional Rent, with interest as provided in Section 21.7 below
from the date of payment by the Landlord to the date of repayment by the Tenant.
8.7.6 The limits of any insurance maintained by Tenant pursuant to
this Article 8 shall in no way limit the liability of Tenant under this Lease.
Section 8.8 Blanket Insurance. The Tenant may fulfill its insurance
obligations hereunder by maintaining a so-called "blanket" policy or policies of
insurance in a form that provides by specific
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endorsement coverage not less than that which is required hereunder for the
particular property or interest referred to herein; provided, however, that the
coverage required by this Article 8 will not be reduced or diminished by reason
of use of such blanket policy of insurance.
ARTICLE 9. DESTRUCTION AND CONDEMNATION
Section 9.1 Total or Partial Destruction.
9.1.1 In the event the Building and/or the Premises is damaged by
fire or other perils covered by Landlord's insurance, Landlord shall:
9.1.1.1 In the event of Total Destruction, either Landlord or
Tenant may elect to terminate this Lease by written notice delivered to the
other not later than sixty (60) days after the event causing the Total
Destruction. In the event neither party delivers such notice, the Lease shall
remain in effect, subject to the remaining provisions of this Section 9.1. As
used herein, the term "Total Destruction" means damage to the Building and/or
Premises exceeding fifty percent (50%) of the full insurable value thereof.
9.1.1.2 In the event of partial destruction of the Building
and/or the Premises, to an extent not exceeding fifty percent (50%) of the full
insurable value thereof, and if the damage thereto is such that the Building
and/or the Premises may be repaired, reconstructed or restored within a period
of ninety (90) days from the date of the discovery of such casualty, and if
Landlord will receive insurance proceeds sufficient to cover the cost of such
repairs, then Landlord shall commence and proceed diligently with the work of
repair, reconstruction and restoration and this Lease shall continue in full
force and effect. If such work of repair, reconstruction and restoration shall
require a period longer than ninety (90) days or exceeds fifty percent (50%) of
the full insurable value thereof, or if said insurance proceeds will not be
sufficient to cover the cost of such repairs, then Landlord either may elect to
so repair, reconstruct or restore and the Lease shall continue in full force and
effect or Landlord may elect not to repair, reconstruct or restore and the Lease
shall then terminate. Under any of the conditions of this Section 9.1.1.2,
Landlord shall give written notice to Tenant of its intention within sixty (60)
days after Landlord's discovery of such partial destruction. In the event
Landlord elects not to restore the Building and/or the Premises, this Lease
shall be deemed to have terminated as of the date possession of the Premises is
surrendered to Landlord.
9.1.2 Upon any termination of this Lease under any of the provisions
of this Section 9.1, the parties shall be released without further obligation to
the other from the date possession of the Premises is surrendered to Landlord
except for items which have therefore accrued and are then unpaid.
9.1.3 In the event of repair, reconstruction and restoration by
Landlord as herein provided, the rental payable under this Lease shall be abated
proportionately with the degree to which Tenant's use of the Premises is
impaired during the period of such repair, reconstruction or restoration;
provided that there shall be no abatement of rent if such damage is the result
of Tenant's negligence or intentional wrongdoing. Tenant shall not be entitled
to any compensation or damages for loss in the use of the whole or any part of
the Premises and/or any inconvenience or annoyance occasioned by such damage,
repair, reconstruction or restoration. Tenant shall not be released from any of
its obligations under this Lease except to the extent and upon the conditions
expressly stated in this Section 9.1. Notwithstanding anything to the contrary
contained in this Section 9.1, if Landlord is delayed or prevented from
repairing or restoring the damaged Premises within one (1) year after the
discovery of such damage or destruction by reason of acts of God, war,
governmental restrictions, inability to procure the necessary labor or
materials, or other cause beyond the control of Landlord, Landlord, at its
option, may terminate this Lease, whereupon Landlord shall be relieved of its
obligation to make such repairs or restoration and Tenant shall be released from
its obligations under this Lease as of the end of said one year period.
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9.1.4 If damage is due to any cause other than fire or other peril
covered by extended coverage insurance, Landlord may elect to terminate this
Lease.
9.1.5 If Landlord is obligated to or elects to repair or restore as
herein provided, Landlord shall be obligated to make repair or restoration only
of those portions of the Building and the Premises which were originally
provided at Landlord's expense, and the repair and restoration of items not
provided at Landlord's expense shall be the obligation of Tenant.
9.1.6 Notwithstanding anything to the contrary contained in this
Section 9.1, Landlord shall not have any obligation whatsoever to repair,
reconstruct or restore the Premises when the damage resulting from any casualty
covered under this Section 9.1 is discovered during the last twelve (12) months
of the Term of this Lease or any extension hereof.
9.1.7 Landlord and Tenant hereby waive the provisions of any
statutes or court decisions which relate to the abatement or termination of
leases when leased property is damaged or destroyed and agree that such event
shall be exclusively governed by the terms of this Lease.
Section 9.2 Condemnation. If the whole of the Building or the Premises,
or such portion thereof as shall be required for its reasonable use, shall be
taken by virtue of any condemnation or eminent domain proceeding, this Lease
shall automatically terminate as of the date of the condemnation, or as of the
date possession is taken by the condemning authority, whichever is later.
Current Rent shall be apportioned as of the date of the termination. In case of
a taking of a part of the Building not required for the reasonable use of the
Premises, then this Lease shall continue in full force and effect and the Rental
shall be equitably reduced based upon the proportion by which the Rentable Area
of the Premises is reduced. This Rent reduction shall be effective on the date
of the partial taking. No award, settlement in lieu of an award, or any partial
or entire taking shall be apportioned, and Tenant hereby assigns to Landlord any
award or settlement in lieu of an award which may be made in the taking or
condemnation proceeding, together with any and all rights of Tenant now or
hereafter arising in or to the same or any part thereof; provided that nothing
herein shall prevent Tenant from making a separate claim against the condemning
authority for the taking of Tenant's personal property and/or moving costs so
long as such claim in no way affects the award to be received by Landlord.
Section 9.3 Sale Under Threat of Condemnation. A sale by Landlord to
any authority having the power of eminent domain, either under threat of
condemnation or while condemnation proceedings are pending, shall be deemed to
be a taking under the power of eminent domain for all purposes under this
Article 9.
ARTICLE 10. INDEMNITY AND WAIVER
Section 10.1 Indemnity.
10.1.1 Tenant, as a material part of the consideration to be
rendered to Landlord, and subject to subsection 10.1.2 below, hereby agrees to
defend, indemnify, and hold Landlord harmless against any and all claims, costs,
and liabilities, including reasonable attorneys' fees and costs (including costs
and fees associated with any lawsuit or appeal), arising by reason of any injury
or claim of injury to person or property, of any nature and howsoever caused,
arising out of the use, occupation and/or control of the Premises, or from any
breach of the terms of this Lease, or any violation of any governmental or
insurance requirements by Tenant, its sublessees, assignees, invitees, agents,
employees, contractors, or licensees, except and to the extent as may arise out
of the willful or negligent acts of Landlord or Landlord's agents, employees or
contractors.
10.1.2 In the event of concurrent negligence of Tenant, its
sublessees, assignees, invitees, agents, employees, contractors, or licensees on
the one hand, and that of Landlord, its agents, employees, or contractors on the
other hand, which concurrent negligence results in injury or damage to persons
or property of any nature and howsoever caused, and relates to the construction,
alteration, repair, addition to, subtraction from, improvement to or maintenance
of the Premises, Common
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Areas, or Building, Tenant's obligation to indemnify Landlord as set forth in
this Section 10.1 shall be limited to the extent of Tenant's negligence, and
that of Tenant's sublessees, assignees, invitees, agents, employees, contractors
or licensees, including Tenant's proportional share of costs, attorneys' fees
and expenses incurred in connection with any claim, action or proceeding brought
with respect to such injury or damage. Tenant agrees that it will not assert its
industrial insurance immunity if such assertion would be inconsistent with
Landlord's right to indemnification from Tenant pursuant to this Section 10.1.
The parties agree that this provision was mutually negotiated.
Section 10.2 Waiver. All property kept, stored or maintained on the
Premises shall be so kept, stored or maintained at the sole risk of Tenant.
Except in the case of Landlord's negligence or willful misconduct, Landlord
shall not be liable, and Tenant waives all claims against Landlord, for damages
to persons or property sustained by Tenant or by any other person or firm
resulting from the Building or by reason of the Premises or any equipment
located therein becoming out of repair, or through the acts or omissions of any
persons present in the Building (including the Common Areas) or renting or
occupying any part of the Building (including the Common Areas), or for loss or
damage resulting to Tenant or its property from burst, stopped or leaking
sewers, pipes, conduits, or plumbing fixtures, or for interruption of any
utility services, or from any failure of or defect in any electric line,
circuit, or facility, or any other type of improvement or service on or
furnished to the Premises or the Common Areas or resulting from any accident in,
on, or about the Premises or the Common Areas.
ARTICLE 11. DELAYS
Section 11.1 Delays. If either party is delayed in the performance of
any covenant of this Lease because of any of the following causes (referred to
elsewhere in this Lease as a "Delaying Cause"): acts of the other party, action
of the elements, war, riot, labor disputes, inability to procure or general
shortage of labor or materials in the normal channels of trade, delay in
transportation, delay in inspections, or any other cause beyond the reasonable
control of the party so obligated, whether similar or dissimilar to the
foregoing, financial inability excepted, then that performance shall be excused
for the period of the delay but shall in no way affect Tenant's obligation to
pay Rent or the length of the Lease Term.
ARTICLE 12. ASSIGNMENT, SUBLEASE AND SUCCESSION
Section 12.1 Consent Required. Tenant shall not voluntarily or by
operation of law, (1) mortgage, pledge, hypothecate or encumber this Lease or
any interest herein, (2) assign or transfer this Lease or any interest herein,
sublease the Premises or any part thereof, or any right or privilege appurtenant
thereto, or allow any other person (the employees and invitees of Tenant
excepted) to occupy or use the Premises, or any portion thereof, without first
obtaining the written consent of Landlord, which consent shall not be withheld
unreasonably as set forth below in this Section 12, provided that (i) Tenant is
not then in default under this Lease nor is any event then occurring which with
the giving of notice or the passage of time, or both, would constitute a default
hereunder, and (ii) Tenant has not previously assigned or transferred this Lease
or any interest herein or subleased the Premises or any part thereof. When
Tenant requests Landlord's consent to such assignment or subletting, it shall
notify Landlord in writing of the name and address of the proposed assignee or
subtenant and the nature and character of the business of the proposed assignee
or subtenant and shall provide current and prior financial statements for the
proposed assignee or subtenant, which financial statements shall be audited to
the extent available and shall in any event be prepared in accordance with
generally accepted accounting principles. Tenant shall also provide Landlord
with a copy of the proposed sublease or assignment agreement, including all
material terms and conditions thereof. Landlord shall have the option, to be
exercised within thirty (30) days of receipt of the foregoing, to (1) terminate
this Lease as of the commencement date stated in the proposed sublease or
assignment, (2) sublease or take an assignment, as the case may be, from Tenant
of the interest, or any portion thereof, in this Lease and/or the Premises that
Tenant proposes to assign or sublease, on the same terms and conditions as
stated in the proposed sublet or assignment agreement, (3) consent to the
proposed assignment or sublease, or (4) refuse its consent to the proposed
assignment or sublease, providing that such consent shall not be unreasonably
withheld so long as Tenant is not then in default under this Lease nor is any
event then
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occurring which with the giving of notice or the passage of time, or both, would
constitute a default hereunder. In the event Landlord elects to terminate this
Lease or sublease or take an assignment from Tenant of the interest, or portion
thereof, in the Lease and/or the Premises that Tenant proposes to assign or
sublease as provided in the foregoing clauses (1) and (2), respectively, then
Landlord shall have the additional right to negotiate directly with Tenant's
proposed assignee or subtenant and to enter into a direct lease or occupancy
agreement with such party on such terms as shall be acceptable to Landlord in
its sole and absolute discretion, and Tenant hereby waives any claims against
Landlord related thereto, including, without limitation, any claims for any
compensation or profit related to such lease or occupancy agreement.
Section 12.2 Landlord's Consent'. Without otherwise limiting the
criteria upon which Landlord may withhold its consent, Landlord shall be
entitled to consider all reasonable criteria including, but not limited to, the
following: (1) whether or not the proposed subtenant or assignee is engaged in a
business which, and the use of the Premises will be in an manner which, is in
keeping with the then character and nature of all other tenancies in the
Building, (2) whether the use to be made of the Premises by the proposed
subtenant or assignee will conflict with any so-called "exclusive" use then in
favor of any other tenant of the Building, and whether such use would be
prohibited by any other portion of this Lease, including, but not limited to,
any rules and regulations then in effect, or under applicable Laws, and whether
such use imposes a greater load upon the Premises and the Building services then
imposed by Tenant, (3) the business reputation of the proposed individuals who
will be managing and operating the business operations of the assignee or
subtenant, and the long-term financial and competitive business prospects of the
proposed assignee or subtenant, and (4) the creditworthiness and financial
stability of the proposed assignee or subtenant in light of the responsibilities
involved. In any event, Landlord may withhold its consent to any assignment or
sublease, if (i) the actual use proposed to be conducted in the Premises or
portion thereof conflicts with the provisions of Section 2.1 above or with any
other lease which restricts the use to which any space in the Building may be
put, (ii) the proposed assignment or sublease requires material alterations,
improvements or additions to the Premises or portions thereof, (iii) the portion
of the Premises proposed to be sublet is irregular in shape and/or does not
permit safe or otherwise appropriate means of ingress and egress, or does not
comply with governmental safety and other codes, (iv) the proposed sublessee or
assignee is either a governmental agency or instrumentality thereof; (v) the
proposed sublessee or assignee, or any person or entity which directly or
indirectly, controls, is controlled by, or is under common control with, the
proposed sublessee or assignee, either (x) occupies space in the Building at the
time of the request for consent, or (y) is negotiating with Landlord or has
negotiated with Landlord during the six (6) month period immediately preceding
the date Landlord receives Tenant's request for consent, to lease space in the
Building. As a further condition to any rights Tenant may have under this Lease
to sublet all or any portion of the Premises, Tenant shall offer space for
sublease at a starting base rental rate no lower than Landlord's then current
highest asking base rental rate for other space in the Building which is then on
the market for direct lease. If there is no space in the Building then currently
on the market for direct lease, Tenant shall offer the space for sublease at a
starting base rental rate no lower than a rate which is the average of the
starting rate for Landlord's last two new leases and/or renewals in the
Building, or if Landlord has not entered into two new leases and/or renewals
within the immediately preceding six month period, then Tenant shall offer the
space for sublease at a starting base rental rate no lower than the fair market
rental rate.
Section 12.3 Terms of Assignment or Sublease; Profit on Approved
Assignment .
12.3.1 If Landlord approves an assignment or subletting as herein
provided, the assignment or sublease agreement, as the case may be, after
approval by Landlord, shall not be amended without Landlord's prior written
consent, and shall contain a provision directing the assignee or subtenant to
pay the rent and other sums due thereunder directly to Landlord upon receiving
written notice from Landlord that Tenant is in default under this Lease with
respect to the payment of Rent. In the event that, notwithstanding the giving of
such notice, Tenant collects any rent or other sums from the assignee or
subtenant, then Tenant shall hold such sums in trust for the benefit of Landlord
and shall immediately forward the same to Landlord. Landlord's collection of
such rent and other sums shall not constitute an acceptance by Landlord of
attornment by such assignee or subtenant. A consent to one assignment,
subletting, occupation or use shall not be deemed to be a consent to any other
or
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subsequent assignment, subletting, occupation or use, and consent to any
assignment or subletting shall in no way relieve Tenant of any liability under
this Lease. Any assignment or subletting without Landlord's consent shall be
void, and shall, at the option of Landlord, constitute a default under this
Lease.
12.3.2 If Landlord approves an assignment of the entirety of
Tenant's interest in the Lease (as opposed to a subletting) as herein provided,
and provided Landlord's approval is accompanied by an instrument by which
Landlord releases Tenant from Tenant's obligations under this Lease which first
accrue from and after the date of assignment, then Tenant shall pay to Landlord,
as Additional Rent, one hundred percent (100%) of the excess, if any, of (1) the
rent, additional rent and any other consideration payable by the assignee to
Tenant, less reasonable and customary market-based leasing commissions, if any,
incurred by Tenant in connection with such assignment; minus (2) Base Rent plus
Additional Rent allocable to that part of the Premises affected by such
assignment or sublease pursuant to the provisions of this Lease, which
commissions shall, for purposes of the aforesaid calculation, be amortized on a
straight-line basis over the term of such assignment or sublease.
Section 12.4 General Conditions.
12.4.1 Except as may be to the contrary as provided for in Section
12.3.2, notwithstanding any assignment or subletting, Tenant and any guarantor
or surety of Tenant's obligations under this Lease shall at all times remain
fully and primarily responsible and liable for the payment of the Rent and for
compliance with all of Tenant's other obligations under this Lease (regardless
of whether Landlord's approval has been obtained for any such assignment or
subletting); provided, however, (X) in the event Landlord has made the election
to terminate pursuant to clause (1) of Section 12.1, Tenant shall be released
from its obligations hereunder to the extent the Lease has been terminated and
(Y) in the event Landlord has made the election to sublease or take an
assignment pursuant to clause (2) of Section 12.1, Tenant shall be released of
its obligations to the extent Landlord has taken an assignment of a portion of
the lease, or having taken a sublease, Landlord fails to perform its obligations
under such sublease.
12.4.2 Tenant shall pay Landlord's reasonable fees (including,
without limitation, the fees of Landlord's counsel), incurred in connection with
Landlord's review and processing of documents regarding any proposed assignment
or sublease.
12.4.3 Notwithstanding anything in this Lease to the contrary, in
the event Landlord consents to an assignment or subletting by Tenant in
accordance with the terms of this Section 12, Tenant's assignee or subtenant
shall have no right to further assign this Lease or any interest therein or
thereunder or to further sublease all or any portion of the Premises. In
furtherance of the foregoing, Tenant acknowledges and agrees on behalf of itself
and any assignee or subtenant claiming under it (and any such assignee or
subtenant by accepting such assignment or sublease shall be deemed to
acknowledge and agree) that no sub-subleases or further assignments of this
Lease shall be permitted at any time.
12.4.4 If this Lease is assigned, whether or not in violation of the
provisions of this Lease, Landlord may collect Rent from the assignee. If the
Premises or any part thereof is sublet or used or occupied by anyone other than
Tenant, whether or not in violation of this Lease, Landlord may, after a default
by Tenant, collect Rent from the subtenant or occupant. In either event,
Landlord may apply the net amount collected to Rent, but no such assignment,
subletting, occupancy or collection shall be deemed a waiver of any of the
provisions of this Section 12, or the acceptance of the assignee, subtenant or
occupant as tenant, or a release of Tenant from the further performance by
Tenant of Tenant's obligations under this Lease. The consent by Landlord to an
assignment, mortgaging, pledging, encumbering, transfer, use, occupancy or
subletting pursuant to any provision of this Lease shall not, except as
otherwise provided herein, in any way be considered to relieve Tenant from
obtaining the express consent of Landlord to any other or further assignment,
mortgaging, pledging, encumbering, transfer, use, occupancy or subletting.
References in this Lease to use or occupancy by anyone other than Tenant shall
not be construed as limited to subtenants and those claiming under or through
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subtenants but as including also licensees or others claiming under or through
Tenant, immediately or remotely. The listing of any name other than that of
Tenant on any door of the Premises or on any directory or in any elevator in the
Building, or otherwise, shall not, except as otherwise provided herein, operate
to vest in the person so named any right or interest in this Lease or in the
Premises, or be deemed to constitute, or serve as a substitute for, or any
waiver of, any prior consent of Landlord required under this Section 12.
12.4.5 Each subletting and/or assignment pursuant to this Section 12
shall be subject to all of the covenants, agreements, terms, provision and
conditions contained in this Lease and each of the covenants, agreements, terms,
provisions and conditions of this Lease shall be automatically incorporated
therein. If Landlord shall consent to, or reasonably withhold its consent to,
any proposed assignment or sublease, Tenant shall indemnify, defend and hold
harmless Landlord against and from any and all loss, liability, damages, costs
and expenses (including reasonable counsel fees) resulting from any claims that
may be made against Landlord by the proposed assignee or sublessee or by any
brokers or other persons claiming a commission or similar in connection with the
proposed assignment or sublease.
ARTICLE 13. SURRENDER OF POSSESSION
Section 13.1 Surrender. Upon the Termination Date, or upon the earlier
termination of this Lease as provided for herein, whether by lapse of time or
otherwise, Tenant shall surrender the Premises to Landlord.
Section 13.2 Condition at Time of Surrender. Furnishings, trade
fixtures and equipment including but not limited to voice and data cabling,
telecommunications equipment installed by Tenant shall be the property of
Tenant. Upon termination of this Lease, Tenant shall remove any such property.
Tenant shall repair any damage to the Premises and/or Common Areas resulting
from the installation or removal of Tenant's property, and Tenant shall deliver
the Premises to Landlord in clean and good condition, except for reasonable wear
and tear.
ARTICLE 14. HOLDING OVER
Section 14.1 Holding Over. This Lease shall terminate without further
notice at the expiration of the Term. Any holding over by Tenant without the
express written consent of Landlord shall not constitute the renewal or
extension of this Lease or give Tenant any rights in or to the Premises. In the
event of such a holding over by Tenant without the express written consent of
Landlord, the monthly Rent payments to be paid by Tenant shall be subject to
increase at the sole discretion of Landlord in an amount equal to two hundred
percent (200%) of the then applicable Rental rate; provided, however, no payment
of such increased Rental by Tenant shall be deemed to extend or renew the Term
of this Lease, and such Rental payments shall be fixed by Landlord only to
establish the amount of liability for payment of Rent on the part of Tenant
during such period of holding over. In the event Landlord shall give its
express written consent to Tenant to occupy the Premises beyond the expiration
of the Term, that occupancy shall be construed to be a month-to-month tenancy
upon all the same terms and conditions as set forth herein unless modified by
Landlord in such written consent; provided that Rent charged during any period
of holding over shall be as stated above.
ARTICLE 15. ENTRY BY LANDLORD
Section 15.1 Entry by Landlord. Landlord reserves, and shall at any and
all times have, the right to enter the Premises during business hours to inspect
the same, to show the Premises to prospective purchasers or lessees, to post
notices of nonresponsibility, to repair the Premises and any portion of the
Building that Landlord may deem necessary or desirable, without abatement of
Rent, and may for that purpose erect scaffolding and other necessary structures
where reasonably required by the character of the work to be performed;
provided, that the entrance to the Premises shall not be blocked unreasonably
thereby and, provided, further that the business of the Tenant shall not be
interfered with unreasonably. Tenant hereby waives any claim for damages, injury
or inconvenience to or interference
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with Tenant's business, any loss of occupancy or quiet enjoyment of the
Premises, and any other loss occasioned by Landlord's exercise of its rights
pursuant to this Section 15.1, except and to the extent any such damage, injury
or interference results from the negligence of Landlord. Landlord shall at all
times have and retain a key with which to unlock all of the doors in, upon and
about the Premises, excluding Tenant's vaults, safes and files, and Landlord
shall have the right to use any and all means which Landlord may deem proper to
open the doors to or in the Premises in an emergency, in order to obtain entry
to the Premises without liability to Tenant. Any entry to the Premises obtained
by Landlord by any of these means, or otherwise, shall not under any
circumstances be construed or deemed to be a forcible or unlawful entry into, or
a detainer of, the Premises, or an eviction of Tenant from the Premises or any
portion thereof.
Section 15.2 Failure to Surrender. If Tenant fails to surrender the
Premises upon the expiration of the Term or upon the sooner termination of this
Lease, Tenant shall indemnify and hold Landlord harmless from loss and liability
resulting from that failure, including, without limiting the generality of the
foregoing, any claims made by any succeeding tenant.
ARTICLE 16. SUBORDINATION
Section 16.1 Lease Subordinate To Mortgages. This Lease shall
automatically be subordinate to any existing mortgages or deeds of trust which
affect the Property, the Building and/or the Premises; to any first mortgages or
deeds of trust hereafter affecting the Property, the Building and/or the
Premises, and to all renewals, modifications, consolidations, replacements or
extensions thereof. This provision shall be self-operative and no further
instrument of subordination shall be required by any existing or first mortgagee
or beneficiary of a deed of trust; provided, that Tenant shall have the
continued enjoyment of the Premises free from any disturbance or interruption by
any existing or first mortgagee or beneficiary of a deed of trust, or any
purchaser at a foreclosure or private sale of the Property as a result of
Landlord's default under a mortgage or deed of trust, so long as Tenant is not
then in default under the terms and conditions of this Lease. In the event of
the foreclosure of a deed of trust or mortgage affecting the Property,
judicially or nonjudicially, or if title to the Property is conveyed by deed in
lieu of foreclosure, Tenant agrees to attorn to and accept the purchaser(s) at
the foreclosure sale(s) conducted pursuant to the deed of trust or mortgage or
the grantee(s) in such deed(s) in lieu of foreclosure and his or its (or their)
heirs, legal representatives, successors and assigns as Landlord under this
Lease for the balance then remaining of the term hereof, subject to all terms
and conditions of this Lease.
Section 16.2 Estoppel Certificates. Tenant shall, within fifteen (15)
days of presentation, acknowledge and deliver to Landlord (a) any subordination
or non-disturbance agreement or other instrument that Landlord may require to
carry out the provisions of this Article, and (b) any estoppel certificate
requested by Landlord from time to time in the standard form of any mortgagee or
beneficiary of and deed of trust affecting the Building and Premises certifying,
if such be true, that Tenant is in occupancy, that this Lease is unmodified and
in full force and effect, or if there have been modifications, that the Lease as
modified is in full force and effect, and stating the modifications and the
dates to which the Rent and other charges shall have been paid, and that there
are no Rental offsets or claims. Acceptable forms of estoppel certificate and
subordination agreement are attached as Exhibits F and G.
ARTICLE 17. DEFAULT AND REMEDY
Section 17.1 Events of Tenant's Default. The occurrence of any one or
more of the following events shall constitute a material default and breach of
this Lease by Tenant:
17.1.1 Vacation or abandonment of the Premises;
17.1.2 Failure by Tenant to make any payment required as and when
due, where that failure shall continue for a period of eight (8) calendar days;
17.1.3 Failure of Tenant to deposit with Landlord an amount equal to
the proceeds of any Letter of Credit or cash proceeds deposited with Landlord
pursuant to Paragraph 7 of
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Exhibit E to this Lease which have been applied or retained by Landlord to
satisfy any obligation of Tenant under this Lease, within ten (10) calendar days
after Landlord's written demand to Tenant to do so;
17.1.4 Failure of Tenant to deposit with Landlord a substitute
letter of credit in the Stipulated Amount on or before the LC Increase Date
pursuant to Paragraph 7.5 of Exhibit E to this Lease;
17.1.5 Failure by Tenant to observe or perform any of the covenants,
conditions or provisions of this Lease, other than making any payment when due,
where that failure shall continue for a period of ten (10) calendar days after
Landlord gives written notice to Tenant of that failure; and
17.1.6 Making by Tenant of any general assignment or general
arrangement for the benefit of creditors; the filing by or against Tenant of a
petition in bankruptcy, including reorganization or arrangement, unless, in the
case of a petition filed against Tenant, the petition is dismissed within ninety
(90) calendar days; or the appointment of a trustee or receiver to take
possession of substantially all of Tenant's assets located at the Premises, or
of Tenant's interest in this Lease.
Section 17.2 Remedies. In the event of any breach or default by Tenant
under the terms or provisions of this Lease, Landlord, in addition to any other
rights or remedies that it may have, shall have the immediate right of reentry.
Should Landlord elect to reenter or take possession of the Premises, it may
either terminate this Lease, or from time to time, without terminating this
Lease, relet the Premises or any part thereof for the account and in the name of
the Tenant or otherwise, for any term or terms and conditions as Landlord in its
sole discretion may deem advisable, with the right to complete construction of
or make alterations and repairs to the Premises and/or improvements installed by
Tenant. Tenant shall pay to Landlord in the event of reletting, as soon as
ascertained, the costs and expenses incurred by Landlord in the reletting,
completion of construction, or in making any alterations and repairs. Rentals
received by Landlord from any reletting shall be applied: first, to the payment
of any indebtedness, other than Rent, due hereunder from Tenant to Landlord;
second, to the payment of Rent due and unpaid hereunder and to any other
payments required to be made by the Tenant hereunder; and the residue, if any,
shall be held by Landlord as payment of future Rent or damages in the event of
termination as the same may become due and payable hereunder; and the balance,
if any, at the end of the Term of this Lease shall be paid to Tenant. Should
rental received from time to time from the reletting during any month be a
lesser Rental than herein agreed to by Tenant, the Tenant shall pay the
deficiency to Landlord. The Tenant shall pay the deficiency each month as the
amount thereof is ascertained by the Landlord. Notwithstanding the foregoing,
Landlord shall also have the right upon Tenant's default to terminate this Lease
and all rights of Tenant hereunder by giving written notice of such intention to
terminate. In the event that Landlord shall elect to so terminate this Lease
then Landlord may recover from Tenant:
17.2.1 The worth at the time of award of any unpaid Rent and any
other sums due and payable which have been earned at the time of such
termination; plus
17.2.2 The worth at the time of award of the amount by which the
unpaid Rent and any other sums due and payable which would have been earned
after termination until the time of award exceeds the amount of such rental loss
Tenant proves could have been reasonably avoided; plus
17.2.3 The worth at the time of award of the amount by which the
unpaid Rent and any other sums due and payable for the balance of the term of
this Lease after the time of award exceeds the amount of such rental loss that
Tenant proves could be reasonably avoided; plus
17.2.4 Any other amount necessary to compensate Landlord for all the
detriment proximately caused by Tenant's failure to perform its obligations
under this Lease or which in the ordinary course would be likely to result
therefrom, including, without limitation, (A) any costs or expenses incurred by
Landlord (1) in retaking possession of the Premises; (2) in maintaining,
repairing,
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preserving, restoring, replacing, cleaning, altering, remodeling or
rehabilitating the Premises or any affected portions of the Building or the
Project, including such actions undertaken in connection with the reletting or
attempted reletting of the Premises to a new tenant or tenants; (3) for leasing
commissions, advertising costs and other expenses of reletting the Premises; or
(4) in carrying the Premises, including taxes, insurance premiums, utilities and
security precautions; (B) any unearned brokerage commissions paid in connection
with this Lease; (C) reimbursement of any previously waived or abated Base Rent
or Additional Rent or any free rent or reduced rental rate granted hereunder;
and (D) any concession made or paid by Landlord to the benefit of Tenant in
consideration of this Lease including, but not limited to, any moving
allowances, contributions, payments or loans by Landlord for tenant improvements
or build-out allowances (including without limitation, any unamortized portion
of the improvement allowance provided to Tenant pursuant to Exhibit C, such
improvement allowance to be amortized over the Term in the manner reasonably
determined by Landlord), or assumptions by Landlord of any of Tenant's previous
lease obligations; plus
17.2.5 Such reasonable attorneys' fees incurred by Landlord as a
result of a default, and costs in the event suit is filed by Landlord to enforce
such remedy; and plus
17.2.6 At Landlord's election, such other amounts in addition to or
in lieu of the foregoing as may be permitted from time to time by applicable
law.
17.2.7 As used in subparagraphs 17.2.1 and 17.2.2 above, the "worth
at the time of award" is computed by allowing interest at an annual rate equal
to twelve percent (12%) per annum or the maximum rate permitted by law,
whichever is less. As used in subparagraph 17.2.3 above, the "worth at the time
of award" is computed by discounting such amount at the discount rate of Federal
Reserve Bank of San Francisco at the time of award, plus one percent (1%).
Tenant hereby waives for Tenant and for all those claiming under Tenant all
right now or hereafter existing to redeem by order or judgment of any court or
by any legal process or writ, Tenant's right of occupancy of the Premises after
any termination of this Lease.
Section 17.3 Reletting. No reletting of the Premises by Landlord
permitted under Section 17.2 shall be construed as an election on Landlord's
part to terminate this Lease unless a notice of Landlord's intention to
terminate is given to Tenant, or unless the termination of the Lease is decreed
by a court of competent jurisdiction. In the event of reletting without
termination, Landlord may at any time thereafter elect to terminate this Lease
for a previous breach, provided it has not been cured. Should Landlord at any
time terminate this Lease for any breach, in addition to any other remedy it may
have, it may recover from Tenant all damages it may incur by reason of that
breach.
Section 17.4 Default of Landlord. Landlord shall not be in default
unless Landlord fails to perform its obligations under this Lease within thirty
(30) days after written notice by Tenant, or if such failure is not reasonably
capable of being cured within such thirty (30) day period, Landlord shall not be
in default unless Landlord has failed to commence the cure and diligently pursue
the cure to completion.
Section 17.5 Non-Waiver. Failure by Landlord to take action or declare
a default as a result of any breach of any term, covenant or condition herein
contained shall not be deemed to be a waiver of that term, covenant, or
condition, or of any subsequent breach of any term, covenant or condition herein
contained. The subsequent acceptance of Rent hereunder by Landlord shall not be
deemed to be a waiver of any preceding breach by Tenant of any term, covenant or
condition of this Lease, other than the failure of Tenant to pay the particular
Rental so accepted, regardless of Landlord's knowledge of that preceding breach
at the time of acceptance of the Rent.
Section 17.6 Mortgagee Protection. In the event of any uncured default
on the part of Landlord, which default would entitle Tenant to terminate this
Lease, Tenant shall not terminate this Lease unless Tenant has notified any
mortgagee or beneficiary of deed of trust, whose address shall have been
furnished to Tenant, at least thirty (30) days in advance of the proposed
effective date of the termination. During the thirty (30) day period the
mortgagee or beneficiary shall be entitled to commence
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to cure the default. If the default is not capable of being cured with due
diligence within the thirty (30) day period, the Lease shall not be terminated
if the mortgagee or beneficiary of a deed of trust shall have commenced to cure
the default within the thirty (30) day period and shall pursue the cure with due
diligence thereafter. If the default is one which is not capable of cure by the
mortgagee or beneficiary of a deed of trust within the thirty (30) day period
because the mortgagee or beneficiary of a deed of trust is not in possession of
the Building or Property, the thirty (30) day period shall be extended to
include the time needed to obtain possession of the Premises by the mortgagee or
beneficiary of a deed of trust by power of sale, judicial foreclosure, or other
legal action required to recover possession, provided that these avenues are
pursued with due diligence.
ARTICLE 18. LIMITATION OF LIABILITY
Section 18.1 Limitation of Landlord's Liability. Tenant understands,
covenants and agrees that the obligations of Landlord under this Lease shall not
constitute personal obligations of Landlord, the individual partners of Landlord
or its or their individual partners, directors, officers or shareholders, and
Tenant shall look solely to the Property and the Building, and to no other
assets of Landlord, for the satisfaction of any liability of Landlord with
respect to this Lease, and shall not seek recourse against the individual
partners of Landlord, or its or their individual partners, directors, officers
or shareholders, or any of their personal assets for such satisfaction.
Section 18.2 Applicability. Tenant agrees that each of the covenants
and agreements contained in Section 18.1 above shall be applicable to any
covenant or agreement either expressly contained in this Lease or imposed by
statute or at common law.
ARTICLE 19. NOTICES
Section 19.1 Notices. Any notice required or desired to be given under
this Lease shall be in writing with copies directed as indicated herein and
shall be personally served or given by mail. Any notice given by mail shall be
deemed to have been given when seventy-two (72) hours have elapsed from the time
such notice was deposited in the United States mail, certified mail, return
receipt requested, and postage prepaid, addressed to the party to be served at
the last address given by that party to the other party under the provisions of
this section. As of the Lease Commencement Date, the addresses of the Landlord
and Tenant are as specified in the Lease Summary.
ARTICLE 20. HAZARDOUS SUBSTANCES
Section 20.1 Presence and Use of Hazardous Substances. Tenant shall
not, without Landlord's prior written consent, keep on or around the Premises,
Common Areas or Building, for use, disposal, transportation, treatment,
generation, storage or sale, any substances designated as, or containing
components designated as, hazardous, dangerous, toxic or harmful (collectively
referred to as "Hazardous Substances"), and/or are subject to regulation by any
federal, state or local law, regulation, statute or ordinance.
Section 20.2 Landlord Indemnification. Landlord shall indemnify,
defend, reimburse and hold Tenant harmless from and against any and all
environmental damages, including the cost of remediation, which existed as a
result of Hazardous Substances on the Premises prior to the Lease Commencement
Date or which are caused by the gross negligence or willful misconduct of
Landlord, its agents or employees.
Section 20.3 Cleanup Costs, Default and Indemnification. Tenant shall
be fully and completely liable to Landlord for any and all cleanup costs and any
and all other charges, fees, penalties (civil and criminal) imposed by any
governmental authority with respect to Tenant's use, disposal, transportation,
treatment, generation, storage and/or sale of Hazardous Substances, in or about
the Premises, Common Areas, or Building, whether or not consented to by
Landlord. Tenant shall indemnify, defend and hold Landlord harmless from any
and all of the costs, fees, penalties, liabilities and charges incurred by,
assessed against or imposed upon Landlord (as well as Landlord's attorneys' fees
and costs)
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as a result of Tenant's use, disposal, transportation, treatment, generation,
storage and/or sale of Hazardous Substances.
ARTICLE 21. MISCELLANEOUS
Section 21.1 Headings. The headings used in this Lease are for
convenience only. They shall not be construed to limit or to extend the meaning
of any part of this Lease.
Section 21.2 Amendments. Any amendments or additions to this Lease
shall be in writing by the parties hereto, and neither Tenant nor Landlord shall
be bound by any verbal or implied agreements.
Section 21.3 Time of the Essence. Time is expressly declared to be of
the essence of this Lease.
Section 21.4 Entire Agreement. This Lease contains the entire agreement
of the parties hereto with respect to the matters covered hereby, and no other
agreement, statement or promise made by any party hereto, or to any employee,
officer or agent of any party hereto, which is not contained herein, shall be
binding or valid.
Section 21.5 Language. The words "Landlord" and "Tenant", when used
herein, shall be applicable to one (1) or more persons, as the case may be, and
the singular shall include the plural and the neuter shall include the masculine
and feminine, and if there be more than one (1) the obligations hereof shall be
joint and several. The word "persons" whenever used shall include individuals,
firms, associations and corporations and any other legal entity, as applicable.
The language in all parts of this Lease shall in all cases be construed as a
whole and in accordance with its fair meaning, and shall not be construed
strictly for or against Landlord or Tenant.
Section 21.6 Invalidity. If any provision of this Lease shall be deemed
to be invalid, void or illegal, it shall in no way affect, impair or invalidate
any other provision hereof.
Section 21.7 Late Charges. Tenant hereby acknowledges that late payment
by Tenant to Landlord of Rent or other sums due hereunder will cause Landlord to
incur costs not contemplated by this Lease, the exact amount of which is
difficult to determine, but include, without limitation, processing and
accounting charges, and late charges which may be imposed upon Landlord by the
terms of any mortgage or deed of trust covering the Premises. Therefore, in the
event Tenant shall fail to pay any installment of Rent or other sum due
hereunder within ten (10) days of the due date, Tenant shall pay to Landlord as
Additional Rent and as a reasonable estimate of the costs to Landlord, a late
charge equal to ten percent (10%) of each installment or the sum of One Hundred
Fifty Dollars ($150.00) per month, whichever is greater. A One Hundred Fifty
Dollar ($150.00) charge will be paid by the Tenant to the Landlord for each
returned check. In the event Landlord pays any sum or expense on behalf of
Tenant which Tenant is obligated to pay hereunder, or in the event Landlord
expends any other sum or incurs any expense, or Tenant fails to pay any sum due
hereunder, Landlord shall be entitled to receive interest upon that sum at the
rate of fifteen percent (15%) per annum until paid.
Section 21.8 [Not Used].
Section 21.9 Computation of Time. The word "day" means "calendar day"
herein, and the computation of time shall include all Saturdays, Sundays and
holidays for purposes of determining time periods specified herein.
Section 21.10 Applicable Law. This Lease shall be interpreted and
construed under and pursuant to the laws of the State of Washington.
Section 21.11 Attorneys' Fees. In the event either party requires the
services of an attorney in connection with enforcing the terms of this Lease or
in the event suit is brought for the recovery of any Rent due under this Lease
for the breach of any covenant or condition of this Lease, or for the
restitution
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of the Premises to Landlord, and/or eviction of Tenant during the Term of this
Lease or after the expiration thereof, the prevailing party will be entitled to
a reasonable sum for attorneys' fees, witness fees, and other court costs, both
at trial and on appeal.
Section 21.12 Termination. Upon the termination of this Lease by
expiration of time or otherwise, the rights of Tenant and all persons claiming
under Tenant in and to the Premises shall cease.
Section 21.13 Broker's Commission. Tenant represents and warrants that
it has incurred no liabilities or claims for brokerage commissions or finder's
fees in connection with the negotiation and/or execution of this Lease and that
it has not dealt with or has any knowledge of any real estate broker/agent or
salesperson in connection with this Lease except for those identified in the
Lease Summary. Tenant agrees to indemnify, defend, and hold Landlord harmless
from and against, all of such liabilities and claims (including, without
limitation, attorneys' fees and costs) made by any other broker/agent or
salesperson claiming to represent Tenant in connection with this Lease.
Section 21.14 Signs or Advertising. The Tenant will not inscribe any
inscription or post, place, or in any manner display any sign, notice, picture
or poster or any advertising matter whatsoever, anywhere in or about the
Premises or Building which can be seen from outside the Premises, without first
obtaining Landlord's written consent thereto. Any consent so obtained from
Landlord shall be with the understanding and agreement that Tenant will remove
these items at the termination of the tenancy herein created and repair any
damage or injury to the Premises or the Building caused thereby. Landlord will
install and maintain a directory of tenants in the principal lobby entrance of
the Building, and Landlord may, as it may determine from time to time, publish
or advertise the tenancy list of the Building. Tenant shall not use
photographs, drawings, or other renderings of the Building, the Building logo or
tradename, or any other proprietary name, mark or symbol of Landlord without
first obtaining Landlord's prior written consent.
Section 21.15 Transfer of Landlord's Interest. In the event Landlord
transfers its reversionary interest in the Premises or its rights under this
Lease, other than a transfer for security purposes only, Landlord shall be
relieved of all obligations occurring hereunder after the effective date of such
transfer.
Section 21.16 Counterparts. This Agreement may be executed by the
parties in counterparts, and each counterpart Agreement shall be deemed to be an
original hereof.
Section 21.17 Quiet Enjoyment. Subject to the provisions of this Lease
and conditioned upon performance of all of the provisions to be performed by
Tenant hereunder, Landlord shall secure to Tenant during the Lease Term the
quiet and peaceful possession of the Premises and all rights and privileges
appertaining thereto.
Section 21.18 Authority. Each party hereto warrants that it has the
authority to enter into this Agreement and that the signatories hereto have the
authority to bind Landlord and Tenant, respectively. Not later than ten (10)
days following the execution of this Lease, Tenant shall deliver to Landlord
resolution(s) of Tenant, certified by its secretary, in form satisfactory to
Landlord, authorizing the execution and delivery of this Lease by Tenant and the
officers executing this Lease on behalf of Tenant.
Section 21.19 Name of Building. During all periods that Tenant is not
in default hereunder, (a) Landlord grants Tenant permission to refer to the
Building as the "Onvia Building" and (b) Landlord covenants and agrees not to
use any other name to identify the Building.
Section 21.20 Rules and Regulations. Tenant agrees to abide by and
adhere to any rules and regulations for the Building, and all amendments
thereto, which may be promulgated from time to time by Landlord which do not
materially change the provisions of this Lease. The rules and regulations
currently in effect upon the date of execution of this Lease are set forth as
Exhibit D attached hereto.
Section 21.21 Consents. Landlord shall act reasonably when determining
whether to give any consents or approvals under the terms of this Lease.
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Section 21.22 Agency Disclosure. At the signing of this Lease, the
Leasing Representative(s) identified in the Lease Summary represented the party
noted therein. Each party signing this document confirms that prior oral and/or
written disclosure of agency was provided to him/her in this transaction (as
required by WAC 308-124D-040).
Section 21.23 Lease Summary, Addendum and Exhibits. The Lease Summary,
set forth in the opening pages of the Lease, as well as any Addenda and Exhibits
to this Lease are hereby incorporated herein by reference.
Section 21.24 Survival. Those provisions of this Lease which, in order
to be given full effect, require performance by either Landlord or Tenant
following the termination of this Lease shall survive the Termination Date.
Section 21.25 Additional Provisions. Additional provisions to this
Lease are set forth in Exhibit E annexed hereto.
Section 21.26 Amendment and Restatement. This Lease amends and restates
in its entirety the Office Lease Agreement executed by Landlord and Tenant dated
December 9, 1999 ("Original Lease"). It is understood that as of the date of
execution of this Amended and Restated Office Lease, Landlord and Tenant have
been proceeding with the design and installation of the tenant improvements
described in Exhibit C to the Original Lease, and the repetition in Exhibit C of
dates which precede the date of execution of this Amended and Restated Lease in
intentional considering the fact that the schedule provided for in Exhibit C is
in progress as of the date hereof.
IN WITNESS WHEREOF, this Lease Agreement is executed on the day and year
first written above.
TENANT: ONVIA.COM INC.,
a Washington corporation
By: /s/
-----------------------------------------
Its:
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LANDLORD: BLUME YALE LIMITED PARTNERSHIP,
a Washington limited partnership
By : /s/
------------------------------------
Its:
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