EXHIBIT 10.3
0000 XXXXX XXXXXX
XXXXXXX, XXXXXXXXXX
OFFICE LEASE AGREEMENT
BETWEEN
EOP-NORTHWEST PROPERTIES, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY
("LANDLORD")
AND
EVERGREENBANK, A WASHINGTON CORPORATION
("TENANT")
OFFICE LEASE AGREEMENT
THIS OFFICE LEASE AGREEMENT (the "LEASE") is made and entered into as of
the 17th day of January, 2005, by and between EOP-NORTHWEST PROPERTIES, L.L.C.,
A DELAWARE LIMITED LIABILITY COMPANY ("LANDLORD") and EVERGREENBANK, A
WASHINGTON CORPORATION ("TENANT"). The following exhibits and attachments are
incorporated into and made a part of this Lease: EXHIBIT A-1 (Outline and
Location of Premises), EXHIBIT A-2 (Legal Description), EXHIBIT B (Expenses and
Taxes), EXHIBIT C (Work Letter), EXHIBIT D (Commencement Letter - intentionally
omitted), EXHIBIT E (Building Rules and Regulations), EXHIBIT F (Additional
Provisions) and EXHIBIT G (Outline and Location of Offering Space).
1. BASIC LEASE INFORMATION.
1.01 "BUILDING" shall mean the building located at 0000 Xxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxxxx 00000 commonly known as 0000 Xxxxx Xxxxxx.
"RENTABLE SQUARE FOOTAGE OF THE BUILDING" is deemed to be 554,945
square feet.
1.02 "PREMISES" shall mean the area shown on EXHIBIT A-1 to this Lease.
The Premises is located on the 1st floor and known as suite 100. If
the Premises include one or more floors in their entirety, all
corridors and restroom facilities located on such full floor(s)
shall be considered part of the Premises. The "RENTABLE SQUARE
FOOTAGE OF THE PREMISES" is deemed to be 7,588 square feet. Landlord
and Tenant stipulate and agree that the Rentable Square Footage of
the Building and the Rentable Square Footage of the Premises are
correct.
1.03 "BASE RENT":
ANNUAL RATE MONTHLY
PERIOD OR MONTHS OF TERM PER SQUARE FOOT BASE RENT
------------------------ --------------- ----------
MONTHS 1 - 12 $25.00 $15,808.33
MONTHS 13 - 24 $26.00 $16,440.66
MONTHS 25 - 36 $27.00 $17,073.00
MONTHS 37 - 48 $28.00 $17,705.33
MONTHS 49 - 60 $29.00 $18,337.67
MONTHS 61 - 72 $30.00 $18,970.00
MONTHS 73 - 84 $31.00 $19,602.33
MONTHS 85 - 96 $32.00 $20,234.67
MONTHS 97 - 108 $33.00 $20,867.00
MONTHS 109 - 120 $34.00 $21,499.33
1.04 "TENANT'S PRO RATA SHARE": 1.3673%.
1.05 "BASE YEAR" for Taxes (defined in EXHIBIT B): 2005; "BASE YEAR" for
Expenses (defined in EXHIBIT B): 2005.
1.06 "TERM": A period of 120 months. Subject to Section 3, the Term shall
commence on May 1, 2005 (the "COMMENCEMENT DATE") and, unless
terminated early in accordance with this Lease, end on April 30,
2015 (the "TERMINATION DATE").
1.07 "ALLOWANCE(S)": $10.00 multiplied by the Rentable Square Footage of
the Premises per EXHIBIT C (Work Letter).
1.08 "SECURITY DEPOSIT": None.
1.09 "GUARANTOR(S)": None.
1.10 "BROKER(S)": Equity Office Properties Management Corp., representing
Landlord.
1.11 "PERMITTED USE": General office, banking and related services use;
provided that in no event shall the Premises, or any portion of the
Premises, be used to sell at retail, whole or freshly ground coffee
beans, gourmet, brand-identified brewed coffee and/or espresso or
espresso-based drinks or coffee-based drinks of any kind.
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1.12 "NOTICE ADDRESS(ES)":
Landlord: Tenant:
EOP-Northwest Properties, L.L.C. EvergreenBank
c/o Equity Office Management, L.L.C. c/o PEMCO Financial Services
000 0xx Xxxxxx Xxxx Xxxxxx Xxxxxxxxxx
Xxxxx 0000 Attn: Xxxx Xxxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000 000 Xxxxxxxx Xxx. E.
Attn:Property Manager XX Xxx 000
Xxxxxxx, XX 00000-0000
A copy of any notices to Landlord shall be sent to Equity Office,
Xxx Xxxxxx, Xxxxx Xxxxx, Xxxxx 000, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000,
Attn: Seattle Regional Counsel.
1.13 "BUSINESS DAY(S)" are Monday through Friday of each week, exclusive
of New Year's Day, Presidents Day, Memorial Day, Independence Day,
Labor Day, Thanksgiving Day and Christmas Day ("HOLIDAYS"). Landlord
may designate additional Holidays provided that they are commonly
recognized by other comparable office buildings in the area where
the Building is located. "BUILDING SERVICE HOURS" are 7:00 A.M. to
6:00 P.M. on Business Days and 8:00 A.M. to 1:00 P.M. on Saturdays.
1.14 "LANDLORD WORK:" None.
1.15 "PROPERTY" means the Building and the parcel(s) of land on which it
is located and, at Landlord's discretion, the parking facilities and
other improvements, if any, serving the Building and the parcel(s)
of land on which they are located.
2. LEASE GRANT.
The Premises are hereby leased to Tenant from Landlord, together with the
right to use any portions of the Property that are designated by Landlord for
the common use of tenants and others (the "COMMON AREAS").
3. ADJUSTMENT OF COMMENCEMENT DATE; POSSESSION.
3.01 INTENTIONALLY OMITTED.
3.02 Subject to Landlord's obligation under Section 9.02, the Premises
are accepted by Tenant in "as is" condition and configuration without any
representations or warranties by Landlord regarding the condition of the
Premises or the Building. By taking possession of the Premises, Tenant agrees
that the Premises are in good order and satisfactory condition. Landlord shall
not be liable for a failure to deliver possession of the Premises or any other
space due to the holdover or unlawful possession of such space by another party,
however Landlord shall use reasonable efforts to obtain possession of the space.
The commencement date for the space, in such event, shall be postponed until the
date Landlord delivers possession of the Premises to Tenant free from occupancy
by any party. If Tenant takes possession of the Premises before the Commencement
Date, such possession shall be subject to the terms and conditions of this Lease
and Tenant shall pay Rent (defined in Section 4.01) to Landlord for each day of
possession before the Commencement Date. Tenant shall not be required to pay
Rent for any days of possession before the Commencement Date during which
Tenant, with the approval of Landlord, is in possession of the Premises for the
sole purpose of performing improvements or installing furniture, equipment or
other personal property, provided, however, that during such period Tenant shall
be required to pay, as Additional Rent, for the cost of services specifically
requested by Tenant (e.g., after-hours HVAC), the cost of which is typically
charged to other tenants of the Building during such construction and
installation period.
4. RENT.
4.01 Tenant shall pay Landlord, without any setoff or deduction, unless
expressly set forth in this Lease, all Base Rent and Additional Rent due for the
Term (collectively referred to as "RENT"). "ADDITIONAL RENT" means all sums
(exclusive of Base Rent) that Tenant is required to pay Landlord under this
Lease. Tenant shall pay and be liable for all rental, sales and use taxes (but
excluding income, business and occupation taxes), if any, imposed upon or
measured by Rent. Base Rent and recurring monthly charges of Additional Rent
shall be due and payable in advance on the first day of each calendar month
without notice or demand,
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provided that the installment of Base Rent for the first full calendar month of
the Term, and the first monthly installment of Additional Rent for Expenses and
Taxes, shall be payable upon the execution of this Lease by Tenant. All other
items of Rent shall be due and payable by Tenant on or before 30 days after
billing by Landlord. Rent shall be made payable to the entity, and sent to the
address, Landlord designates and shall be made by good and sufficient check or
by other means acceptable to Landlord. Tenant shall pay Landlord an
administration fee equal to 5% of all past due Rent, provided that Tenant shall
be entitled to a grace period of 5 days after written notice for the first late
payment of Rent in a calendar year. In addition, past due Rent shall accrue
interest at 12% per annum. Landlord's acceptance of less than the correct amount
of Rent shall be considered a payment on account of the earliest Rent due. Rent
for any partial month during the Term shall be prorated. No endorsement or
statement on a check or letter accompanying payment shall be considered an
accord and satisfaction. Tenant's covenant to pay Rent is independent of every
other covenant in this Lease.
4.02 Tenant shall pay Tenant's Pro Rata Share of Taxes and Expenses in
accordance with EXHIBIT B of this Lease.
5. COMPLIANCE WITH LAWS; USE.
The Premises shall be used for the Permitted Use and for no other use
whatsoever. Tenant shall comply with all statutes, codes, ordinances, orders,
rules and regulations of any municipal or governmental entity whether in effect
now or later, including the Americans with Disabilities Act ("LAW(S)"),
regarding the operation of Tenant's business and the use, condition,
configuration and occupancy of the Premises. In addition, Tenant shall, at its
sole cost and expense, promptly comply with any Laws that relate to the "Base
Building" (defined below), but only to the extent such obligations are triggered
by Tenant's particular use of the Premises, other than for general office,
banking and related services uses, or Alterations or improvements in the
Premises performed or requested by Tenant. "BASE BUILDING" shall include the
structural portions of the Building, the public restrooms and the Building
mechanical, electrical and plumbing systems and equipment located in the
internal core of the Building on the floor or floors on which the Premises are
located. Tenant shall promptly provide Landlord with copies of any notices it
receives regarding an alleged violation of Law. As of the date hereof, Landlord
has not received notice from any governmental agencies that the Building is in
violation of Title III of the Americans with Disabilities Act. Tenant shall
comply with the rules and regulations of the Building attached as EXHIBIT E and
such other reasonable rules and regulations adopted by Landlord from time to
time, including rules and regulations for the performance of Alterations
(defined in Section 9). If there is a conflict between this Lease and any rules
and regulations enacted after the date of this Lease, the terms of this Lease
shall control. The rules and regulations shall be generally applicable, and
generally applied in the same manner, to all tenants of the Building.
6. SECURITY DEPOSIT.
INTENTIONALLY OMITTED.
7. BUILDING SERVICES.
7.01 Landlord shall furnish Tenant with the following services: (a) water
for use in the Base Building lavatories; (b) customary heat, ventilation and air
conditioning in season during Building Service Hours, provided Tenant shall have
the right to receive HVAC service during hours other than Building Service Hours
by paying Landlord's then standard charge for additional HVAC service and
providing such prior notice as is reasonably specified by Landlord; (c) standard
janitorial service on Business Days subject to Tenant's reasonable security
requirements and restrictions and provided that janitorial services can be
performed within normal and customary hours (as of the date of this Lease,
Landlord does not provide such janitorial services to the Premises on Fridays);
(d) elevator service; (e) electricity in accordance with the terms and
conditions in Section 7.02; (f) access control to monitor and control access to
the Building, consistent with office buildings of comparable age, size and
condition in the vicinity of the Building, which may be provided through a
system involving any one or a combination of cameras, monitoring devices or
guards, sign-in or identification procedures or other comparable system as
reasonably determined by Landlord; and (g) such other services as Landlord
reasonably determines are necessary or appropriate for the Property.
7.02 Electricity used by Tenant in the Premises shall be paid for by
Tenant through inclusion in Expenses, except with respect to excess electrical
usage. The parties acknowledge that the Premises are currently separately
metered for electrical usage, but that Landlord and Tenant have elected not to
have Tenant pay directly for electrical use. Without the consent of
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Landlord, Tenant's use of electrical service shall not exceed, either in
voltage, rated capacity, use beyond Building Service Hours or overall load, that
which Landlord reasonably deems to be standard for the Building. Landlord shall
have the right to measure electrical usage by commonly accepted methods. If it
is determined that Tenant is using excess electricity, Tenant shall pay Landlord
for the cost of such excess electrical usage as Additional Rent.
7.03 Landlord's failure to furnish, or any interruption, diminishment or
termination of services due to the application of Laws, the failure of any
equipment, the performance of repairs, improvements or alterations, utility
interruptions or the occurrence of an event of Force Majeure (defined in Section
26.03) (collectively a "SERVICE FAILURE") shall not render Landlord liable to
Tenant, constitute a constructive eviction of Tenant, give rise to an abatement
of Rent, nor relieve Tenant from the obligation to fulfill any covenant or
agreement. However, if the Premises, or a material portion of the Premises, are
made untenantable for a period in excess of 3 consecutive Business Days as a
result of a Service Failure that is reasonably within the control of Landlord to
correct, then Tenant, as its sole remedy, shall be entitled to receive an
abatement of Rent payable hereunder during the period beginning on the 4th
consecutive Business Day of the Service Failure and ending on the day the
service has been restored. If the entire Premises have not been rendered
untenantable by the Service Failure, the amount of abatement shall be equitably
prorated.
8. LEASEHOLD IMPROVEMENTS.
All improvements in and to the Premises, including any Alterations
(collectively, "LEASEHOLD IMPROVEMENTS") shall remain upon the Premises at the
end of the Term without compensation to Tenant. Landlord, however, by written
notice to Tenant at the time Landlord approves the plans and specifications for
such improvements, may require Tenant, at its expense, to remove (a) any Cable
(defined in Section 9.01) installed by or for the benefit of Tenant, and (b)
Alterations that, in Landlord's reasonable judgment, are of a nature that would
require removal and repair costs that are materially in excess of the removal
and repair costs associated with standard office improvements (collectively
referred to as "REQUIRED REMOVABLES"). Tenant shall not be required to remove
any item Landlord determines that a future tenant will use any such item that
otherwise qualifies as a Required Removable, then Tenant shall not be obligated
to remove (or pay for) the same. Required Removables shall include, without
limitation, internal stairways, raised floors, personal baths and showers,
vaults, safe deposit boxes and rolling file systems, the teller line, the ATM
and night deposit (defined in Exhibit F), any specialized HVAC installed by or
for Tenant, and structural alterations and modifications. However, it is agreed
that Required Removables shall not include any usual office improvements such as
gypsum board, partitions, ceiling grids and tiles, fluorescent lighting panels,
Building standard doors and non-glued down carpeting. Subject to the foregoing
and the terms of Section 25 hereof, none of the installations in the Premises as
of the date hereof shall be designated Required Removables. The designated
Required Removables shall be removed by Tenant before the Termination Date.
Tenant shall repair damage caused by the installation or removal of Required
Removables. If Tenant fails to perform its obligations in a timely manner,
Landlord may perform such work at Tenant's expense. Tenant, at the time it
requests approval for a proposed Alteration, including the Initial Alterations,
may request in writing that Landlord advise Tenant whether the Alteration or any
portion of the Alteration, or Initial Alterations or any portion of the Initial
Alterations, is a Required Removable.
9. REPAIRS AND ALTERATIONS.
9.01 Tenant shall periodically inspect the Premises to identify any
conditions that are dangerous or in need of maintenance or repair. Tenant shall
promptly provide Landlord with notice of any such conditions. Tenant shall, at
its sole cost and expense, perform all maintenance and repairs to the Premises
that are not Landlord's express responsibility under this Lease, and keep the
Premises in good condition and repair, reasonable wear and tear excepted.
Tenant's repair and maintenance obligations include, without limitation, repairs
to: (a) floor covering; (b) interior partitions; (c) doors; (d) the interior
side of demising walls; (e) electronic, phone and data cabling and related
equipment that is installed by or for the exclusive benefit of Tenant
(collectively, "CABLE"); (f) supplemental air conditioning units, kitchens,
including hot water heaters, plumbing, and similar facilities exclusively
serving Tenant; and (g) Alterations. To the extent Landlord is not reimbursed by
insurance proceeds, Tenant shall reimburse Landlord for the cost of repairing
damage to the Building caused by the negligent or willful acts of Tenant, Tenant
Related Parties (defined in Section 13). If Tenant fails to commence any repairs
to the Premises within 15 days after notice from Landlord (although notice shall
not be required in an emergency), Landlord may make the repairs, and Tenant
shall pay the reasonable cost of the repairs, together with an administrative
charge in an amount equal to 10% of the cost of the repairs.
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9.02 Landlord shall keep and maintain in good repair and working order and
perform maintenance upon the: (a) Base Building and all structural elements of
the Building; (b) mechanical (including HVAC), electrical, plumbing and
fire/life safety systems serving the Building in general; (c) Common Areas; (d)
roof of the Building; (e) exterior (including) windows of the Building; and (f)
elevators serving the Building. Landlord shall promptly make repairs for which
Landlord is responsible. Landlord will manage and maintain the Building in a
manner consistent with office buildings of similar class, size, and age as the
Building located in the vicinity of the Building.
9.03 Tenant shall not make alterations, repairs, additions or improvements or
install any Cable (collectively referred to as "ALTERATIONS") without first
obtaining the written consent of Landlord in each instance, which consent shall
not be unreasonably withheld or delayed. However, Landlord's consent shall not
be required for any Alteration that satisfies all of the following criteria (a
"COSMETIC ALTERATION"): (a) is of a cosmetic nature such as painting,
wallpapering, hanging pictures and installing carpeting; (b) is not visible from
the exterior of the Premises or Building; (c) will not affect the Base Building;
and (d) does not require work to be performed inside the walls or above the
ceiling of the Premises. Cosmetic Alterations shall be subject to all the other
provisions of this Section 9.03. Prior to starting work, Tenant shall furnish
Landlord with plans and specifications; names of contractors reasonably
acceptable to Landlord (provided that Landlord may designate specific
contractors with respect to Base Building); required permits and approvals; and
evidence of contractor's and subcontractor's insurance in amounts reasonably
required by Landlord and naming Landlord as an additional insured. Changes to
the plans and specifications must also be submitted to Landlord for its
approval. Alterations shall be constructed in a good and workmanlike manner
using materials of a quality reasonably approved by Landlord. Tenant shall
reimburse Landlord for any reasonable and customary sums paid by Landlord for
third party examination of Tenant's plans for non-Cosmetic Alterations. In
addition, Tenant shall pay Landlord a fee for Landlord's oversight and
coordination of any non-Cosmetic Alterations equal to $110.00 (the "Initial
Hourly Rate") multiplied by the number of hours of Landlord's employees spent in
such oversight and coordination. The Initial Hourly Rate shall be subject to the
annual escalation in accordance with changes in the CPI in the same manner that
the Minimum Net worth is subject to escalation pursuant to Section 11.04 below.
Upon completion, Tenant shall furnish "as-built" plans for non-Cosmetic
Alterations, completion affidavits and full and final waivers of lien.
Landlord's approval of an Alteration shall not be deemed a representation by
Landlord that the Alteration complies with Law.
10. ENTRY BY LANDLORD.
10.01 Landlord may enter the Premises to inspect, show or clean the Premises
or to perform or facilitate the performance of repairs, alterations or additions
to the Premises or any portion of the Building. Except in emergencies or to
provide necessarily urgent Building services, Landlord shall provide Tenant with
at least 24 hours prior notice (or in the event of emergency or if not practical
under the circumstances reasonable prior verbal notice) of entry and shall use
reasonable efforts to minimize any interference with Tenant's use of the
Premises. If necessary, as determined in Landlord's sole discretion, Landlord
may temporarily close all or a portion of the Premises to perform repairs,
alterations and additions. However, except in emergencies, Landlord will not
close the Premises if the work can reasonably be completed on weekends and after
Building Service Hours. Except as otherwise specifically provided in this
Article, entry by Landlord shall not constitute a constructive eviction or
entitle Tenant to an abatement or reduction of Rent. Notwithstanding the
foregoing, if Landlord temporarily closes the Premises as provided above for a
period in excess of 3 consecutive Business Days, Tenant, as its sole remedy,
shall be entitled to receive a per diem abatement of Base Rent during the period
beginning on the 4th consecutive Business Day of closure and ending on the date
on which the Premises are returned to Tenant in a tenantable condition. Tenant,
however, shall not be entitled to an abatement if the repairs, alterations
and/or additions to be performed are required as a result of the acts or
omissions of Tenant, its agents, employees or contractors, including, without
limitation, a Default by Tenant in its maintenance and repair obligations under
the Lease.
10.02 Notwithstanding the foregoing, Tenant may, at its own expense, provide
its own locks to an area within the Premises, which may include a vault
("SECURED AREA"). Tenant need not furnish Landlord with a key but upon the
Termination Date, Tenant shall surrender all such keys to Landlord. If Landlord
must gain access to a Secured Area in a non-emergency situation, Landlord shall
contact Tenant and Landlord and Tenant shall arrange a mutually agreed upon time
for Landlord to do so. Landlord shall comply with all reasonable security
measures pertaining to the Premises and the Secured Area. If Landlord determines
in its sole discretion
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that an emergency in the Building or the Premises, including, without
limitation, a suspected fire or flood, requires Landlord to gain access to the
Secured Area, Tenant hereby authorizes Landlord to forcibly enter the Secured
Area. In such event, Landlord shall have no liability whatsoever to Tenant, and
Tenant shall pay all reasonable expenses incurred by Landlord in repairing or
reconstructing any entrance, corridor, door or other portions of the Premises
damaged as a result of a forcible entry by Landlord. Landlord shall have no
obligation to provide either janitorial service or cleaning in the Secured Area.
11. ASSIGNMENT AND SUBLETTING.
11.01 Except in connection with a Permitted Transfer (defined in Section
11.04) or Ownership Change (defined in Section 11.04), Tenant shall not assign,
sublease, transfer or encumber any interest in this Lease or allow any third
party to use any portion of the Premises (collectively or individually, a
"TRANSFER") without the prior written consent of Landlord, which consent shall
not be unreasonably withheld, conditioned or delayed if Landlord does not
exercise its recapture rights under Section 11.02. If the entity which controls
the voting shares/rights of Tenant changes at any time, such change of ownership
or control shall constitute a Transfer unless Tenant is an entity whose
outstanding stock is listed on a recognized securities exchange or if at least
80% of its voting stock is owned by another entity, the voting stock of which is
so listed; provided, however, that the foregoing provision shall not apply so
long as the Tenant is a regulated banking institution. Any attempted Transfer in
violation of this Section is voidable by Landlord. In no event shall any
Transfer, including a Permitted Transfer, release or relieve Tenant from any
obligation under this Lease.
11.02 Tenant shall provide Landlord with financial statements for the
proposed transferee, a fully executed copy of the proposed assignment, sublease
or other Transfer documentation and such other information as Landlord may
reasonably request. Within 15 Business Days after receipt of the required
information and documentation, Landlord shall either: (a) consent to the
Transfer by execution of a consent agreement in a form reasonably designated by
Landlord; (b) reasonably refuse to consent to the Transfer in writing (this
clause (b) will not be applicable to a Permitted Transfer); or (c) in the event
of an assignment of this Lease or subletting of more than 20% of the Rentable
Square Footage of the Premises for more than 50% of the remaining Term
(excluding unexercised options), recapture the portion of the Premises that
Tenant is proposing to Transfer. If Landlord exercises its right to recapture,
this Lease shall automatically be amended (or terminated if the entire Premises
is being assigned or sublet) to delete the applicable portion of the Premises
effective on the proposed effective date of the Transfer. Tenant shall pay
Landlord a review fee of $1,500.00 for Landlord's review of any Permitted
Transfer or requested Transfer.
11.03 Tenant shall pay Landlord 50% of all rent and other consideration which
Tenant receives as a result of a Transfer in accordance with generally accepted
accounting procedures that is in excess of the Rent payable to Landlord for the
portion of the Premises and Term covered by the Transfer. Tenant shall pay
Landlord for Landlord's share of the excess within 30 days after Tenant's
receipt of the excess. Tenant may deduct from the excess, on a straight-line
basis, all reasonable and customary expenses directly incurred by Tenant
attributable to the Transfer. If Tenant is in Default, Landlord may require that
all sublease payments be made directly to Landlord, in which case Tenant shall
receive a credit against Rent in the amount of Tenant's share of payments
received by Landlord.
11.04 Tenant may assign this Lease to a successor to Tenant by purchase,
merger, consolidation or reorganization (an "OWNERSHIP CHANGE") or assign this
Lease or sublet all or a portion of the Premises to an Affiliate without the
consent of Landlord, provided that all of the following conditions are satisfied
(a "PERMITTED TRANSFER"): (a) Tenant is not in Default; (b) in the event of an
Ownership Change, Tenant's successor shall own substantially all of the assets
of Tenant and have a net worth which is at least equal to $17,000,000.00 (the
"Minimum Net Worth"); (c) the Permitted Use does not allow the Premises to be
used for retail purposes, except as specifically specified in Section 1.11 of
this Lease; and (d) Tenant shall give Landlord written notice at least 15
Business Days prior to the effective date of the Permitted Transfer (unless the
transaction is subject to confidentiality obligations). Tenant's notice to
Landlord shall include information and documentation evidencing the Permitted
Transfer and showing that each of the above conditions has been satisfied. If
requested by Landlord, Tenant's successor shall sign a commercially reasonable
form of assumption agreement. "AFFILIATE" shall mean an entity controlled by,
controlling or under common control with Tenant. Notwithstanding the foregoing
to the contrary, the Minimum Net Worth shall be subject to adjustment, as of
each anniversary of the Commencement Date (each an "Adjustment Date") to equal
the initial Minimum Net Worth increased by the percentage increase in the CPI
(defined below) most recently issued as of the date immediately preceding the
applicable Adjustment Date (an
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"Adjustment Index") over the CPI issued most recently prior to the Commencement
Date (the "Base CPI"). For example, if the Base CPI is 100, and the Adjustment
CPI applicable to the third (3rd) anniversary of the Commencement Date is 114,
then the Minimum Net Worth applicable to the fourth (4th) year of the Term shall
be the Initial Minimum Net Worth, increased by fourteen percent (14%). As used
herein, the "CPI" shall mean the Consumer Price Index, for All Urban Companies
("CPI-U), U.S. City Average, 1982-84=100 issued by the Bureau of Labor Statutes.
If such index is no longer published, Landlord shall select another index.
12. LIENS.
Tenant shall not permit mechanics' or other liens to be placed upon the
Property, Premises or Tenant's leasehold interest in connection with any work or
service done or purportedly done by or for the benefit of Tenant or its
transferees. Tenant shall give Landlord notice at least 15 days prior to the
commencement of any work in the Premises to afford Landlord the opportunity,
where applicable, to post and record notices of non-responsibility. Tenant,
within 10 days of notice from Landlord, shall fully discharge any lien by
settlement, by bonding or by insuring over the lien in the manner prescribed by
the applicable lien Law. If Tenant fails to do so, Landlord may bond, insure
over or otherwise discharge the lien. Tenant shall reimburse Landlord for any
amount paid by Landlord, including, without limitation, reasonable attorneys'
fees.
13. INDEMNITY AND WAIVER OF CLAIMS.
Tenant hereby waives all claims against and releases Landlord and its
trustees, members, principals, beneficiaries, partners, officers, directors,
employees, Mortgagees (defined in Section 23) and agents (the "LANDLORD RELATED
PARTIES") from all claims for any injury to or death of persons, damage to
property or business loss in any manner related to (a) Force Majeure, (b) acts
of third parties, (c) the bursting or leaking of any tank, water closet, drain
or other pipe, (d) the inadequacy or failure of any security services, personnel
or equipment, or (e) any matter not within the reasonable control of Landlord.
Notwithstanding the foregoing, except as provided in Section 15 to the contrary,
Tenant shall not be required to waive any claims against Landlord (other than
for loss or damage to Tenant's business) where such loss or damage is due to
Landlord's negligence or uncured Default under this Lease. Nothing herein shall
be construed as to diminish the repair and maintenance obligations of Landlord
contained elsewhere in this Lease. Except to the extent caused by the negligence
or willful misconduct of Landlord or any Landlord Related Parties, or Landlord's
contractors, Tenant shall, subject to Section 15 of this Lease, indemnify,
defend and hold Landlord and Landlord Related Parties harmless against and from
all liabilities, obligations, damages, penalties, claims, actions, costs,
charges and expenses, including, without limitation, reasonable attorneys' fees
and other professional fees (if and to the extent permitted by Law)
(collectively referred to as "LOSSES"), which may be imposed upon, incurred by
or asserted against Landlord or any of the Landlord Related Parties by any third
party and arising out of or in connection with any damage or injury occurring in
the Premises or any acts or omissions (including violations of Law) of Tenant,
the Tenant Related Parties or any of Tenant's transferees, contractors or
licensees. Except to the extent caused by the negligence or willful misconduct
of Tenant or any Tenant Related Parties, or Tenant's contractors, Landlord
shall, subject to Section 15 of this Lease, indemnify, defend and hold Tenant,
its trustees, members, principals, beneficiaries, partners, officers, directors,
employees and agents ("TENANT RELATED PARTIES") harmless against and from all
Losses which may be imposed upon, incurred by or asserted against Tenant or any
of the Tenant Related Parties by any third party and arising out of or in
connection with the acts or omissions (including violations of Law) of Landlord
or the Landlord Related Parties or any of Landlord's contractors.
14. INSURANCE.
14.01 Tenant shall maintain the following insurance ("TENANT'S INSURANCE"):
(a) Commercial General Liability Insurance applicable to the Premises and its
appurtenances providing, on an occurrence basis, a minimum combined single limit
of $2,000,000.00; (b) Property/Business Interruption Insurance written on an All
Risk or Special Perils form, with coverage for broad form water damage including
earthquake sprinkler leakage, at replacement cost value and with a replacement
cost endorsement covering all of Tenant's business and trade fixtures,
equipment, movable partitions, furniture, merchandise and other personal
property within the Premises ("TENANT'S PROPERTY") and any Leasehold
Improvements performed by or for the benefit of Tenant; (c) Workers'
Compensation Insurance in amounts required by Law; and (d) Employers Liability
Coverage of at least $1,000,000.00 per occurrence (provided that if this
coverage is unavailable from the Worker's Compensation carrier or applicable
State Fund, a "Stop Gap Liability" endorsement to the Commercial General
Liability
7
Policy is acceptable). Any company writing Tenant's Insurance shall have an A.M.
Best rating of not less than A-VIII. All Commercial General Liability Insurance
policies shall name as additional insureds Landlord (or its successors and
assignees), the managing agent for the Building (or any successor), EOP
Operating Limited Partnership, Equity Office Properties Trust and their
respective members, principals, beneficiaries, partners, officers, directors,
employees, and agents, and other designees of Landlord and its successors as the
interest of such designees shall appear. All policies of Tenant's Insurance
shall contain endorsements that the insurer(s) shall give Landlord and its
designees at least 30 days' advance written notice of any cancellation,
termination, material change or lapse of insurance. Tenant shall provide
Landlord with a certificate of insurance evidencing Tenant's Insurance prior to
the earlier to occur of the Commencement Date or the date Tenant is provided
with possession of the Premises, and thereafter as necessary to assure that
Landlord always has current certificates evidencing Tenant's Insurance.
14.02 Landlord shall maintain the following insurance ("LANDLORD'S
INSURANCE"), the premiums of which will be included in Expenses: (1) Commercial
General Liability insurance applicable to the Property, Building and Common
Areas providing, on an occurrence basis, a minimum combined single limit of at
least $2,000,000.00; (2) All Risk Property Insurance on the Building at
replacement cost value; (3) Worker's Compensation insurance as required by the
state in which the Building is located and in amounts as may be required by
applicable statute; and (4) Employers Liability Coverage of at least
$1,000,000.00 per occurrence.
14.03 Except as specifically provided to the contrary, the limits of either
party's insurance shall not limit such party's liability under this Lease.
15. SUBROGATION.
Landlord and Tenant hereby waive and shall cause their respective insurance
carriers to waive any and all rights of recovery, claims, actions or causes of
action against the other for any loss or damage with respect to Tenant's
Property, Leasehold Improvements, the Building, the Premises, or any contents
thereof, including rights, claims, actions and causes of action based on
negligence, which loss or damage is (or would have been, had the insurance
required by this Lease been carried) covered by property insurance.
16. CASUALTY DAMAGE.
16.01 If all or any portion of the Premises becomes untenantable by fire or
other casualty to the Premises (collectively a "CASUALTY"), Landlord, with
reasonable promptness, shall cause a general contractor selected by Landlord to
provide Landlord and Tenant with a written estimate of the amount of time
required using standard working methods to Substantially Complete the repair and
restoration of the Premises and any Common Areas necessary to provide access to
the Premises (including all permanent improvements located therein) ("COMPLETION
ESTIMATE"). If the Completion Estimate indicates that the Premises or any Common
Areas necessary to provide access to the Premises cannot be made tenantable
within 270 days from the date the repair is started, then either party shall
have the right to terminate this Lease upon written notice to the other within
10 days after receipt of the Completion Estimate. Tenant, however, shall not
have the right to terminate this Lease if the Casualty was caused by the
negligence or intentional misconduct of Tenant or any Tenant Related Parties. In
addition, Landlord, by notice to Tenant within 90 days after the date of the
Casualty, shall have the right to terminate this Lease if: (1) the Premises have
been materially damaged and there is less than 2 years of the Term remaining on
the date of the Casualty; (2) any Mortgagee requires that the insurance proceeds
be applied to the payment of the mortgage debt; or (3) a material uninsured loss
to the Building occurs. Tenant shall have the right to terminate this Lease if:
(a) a substantial portion of the Premises has been damaged by Casualty and such
damage cannot reasonably be repaired within 60 days after receipt of the
Completion Estimate; (b) there is less than 1 year of the Term remaining on the
date of the Casualty; (c) the Casualty was not caused by the negligence or
willful misconduct of Tenant or its agents, employees or contractors; and (d)
Tenant provides Landlord with written notice of its intent to terminate within
30 days after the date of Tenant's receipt of the Completion Estimate. Landlord
shall not terminate this Lease pursuant to this Section 16.01 unless it also
terminates the leases of all similarly affected office tenants in the Building.
In determining whether other tenants are similarly affected, Landlord shall be
entitled to consider all relevant factors such as the extent of damage, the time
to rebuild, the availability of insurance proceeds and the rights of the tenants
in question to impose penalties upon Landlord (including the right to terminate)
if the repairs are not completed within a specified period of time. However,
Landlord shall not be entitled to consider the rental rates payable under the
leases in question in its determination of
8
whether to terminate or rebuild.
16.02 If this Lease is not terminated, Landlord shall promptly and
diligently, subject to reasonable delays for insurance adjustment or other
matters beyond Landlord's reasonable control, restore the Building, the Premises
and Common Areas. Such restoration shall be to substantially the same condition
that existed prior to the Casualty, except for modifications required by Law or
any other modifications to the Common Areas deemed desirable by Landlord. Upon
notice from Landlord, Tenant shall assign to Landlord (or to any party
designated by Landlord) all property insurance proceeds payable to Tenant under
Tenant's Insurance with respect to any Leasehold Improvements performed by or
for the benefit of Tenant; provided if the estimated cost to repair such
Leasehold Improvements exceeds the amount of insurance proceeds received by
Landlord from Tenant's insurance carrier, the excess cost of such repairs shall
be paid by Tenant to Landlord prior to Landlord's commencement of repairs.
Within 15 days of demand, Tenant shall also pay Landlord for any additional
excess costs that are determined during the performance of the repairs. Landlord
shall not be liable for any inconvenience to Tenant, or injury to Tenant's
business resulting in any way from the Casualty or the repair thereof. Provided
that Tenant is not in Default, during any period of time that all or a material
portion of the Premises is rendered untenantable as a result of a Casualty, the
Rent shall xxxxx for the portion of the Premises that is untenantable and not
used by Tenant.
17. CONDEMNATION.
Either party may terminate this Lease if any material part of the Premises is
taken or condemned for any public or quasi-public use under Law, by eminent
domain or private purchase in lieu thereof (a "TAKING"). Landlord shall also
have the right to terminate this Lease if there is a Taking of any portion of
the Building or Property which would have a material adverse effect on
Landlord's ability to profitably operate the remainder of the Building. The
terminating party shall provide written notice of termination to the other party
within 45 days after it first receives notice of the Taking. The termination
shall be effective on the date the physical taking occurs. If this Lease is not
terminated, Base Rent and Tenant's Pro Rata Share shall be appropriately
adjusted to account for any reduction in the square footage of the Building or
Premises. All compensation awarded for a Taking shall be the property of
Landlord. The right to receive compensation or proceeds are expressly waived by
Tenant, however, Tenant may file a separate claim for Tenant's Property and
Tenant's reasonable relocation expenses, provided the filing of the claim does
not diminish the amount of Landlord's award. If only a part of the Premises is
subject to a Taking and this Lease is not terminated, Landlord, with reasonable
diligence, will restore the remaining portion of the Premises as nearly as
practicable to the condition immediately prior to the Taking.
18. EVENTS OF DEFAULT.
Each of the following occurrences shall be a "DEFAULT": (a) Tenant's failure
to pay any portion of Rent when due, if the failure continues for 5 Business
Days after written notice to Tenant ("MONETARY DEFAULT"); (b) Tenant's failure
(other than a Monetary Default) to comply with any term, provision, condition or
covenant of this Lease, if the failure is not cured within 20 days after written
notice to Tenant provided, however, if Tenant's failure to comply cannot
reasonably be cured within 20 days, Tenant shall be allowed additional time (not
to exceed 60 days) as is reasonably necessary to cure the failure so long as
Tenant begins the cure within 20 days and diligently pursues the cure to
completion; (c) Tenant or any Guarantor becomes insolvent, makes a transfer in
fraud of creditors, makes an assignment for the benefit of creditors, admits in
writing its inability to pay its debts when due or forfeits or loses its right
to conduct business; (d) the leasehold estate is taken by process or operation
of Law; (e) in the case of any ground floor or retail Tenant, Tenant does not
take possession of or abandons or vacates all or any portion of the Premises
(notwithstanding the foregoing, Landlord acknowledges that Tenant may, from time
to time, not use or occupy all of the portion of the Premises which are not
visible from the lobby or the storefront windows, which shall not be an event of
abandonment so long at the teller line and main public areas of the branch are
in reasonable use); or (f) Tenant is in default beyond any notice and cure
period under any other lease or agreement with Landlord at the Building or
Property. All notices sent under this Section shall be in satisfaction of, and
not in addition to, notice required by Law provided that any such notices are in
the form and are delivered as required by such Law.
19. REMEDIES.
19.01 Upon Default, Landlord shall have the right to pursue any one or more
of the following remedies:
9
(a) Terminate this Lease, in which case Tenant shall immediately surrender
the Premises to Landlord. If Tenant fails to surrender the Premises,
Landlord, in compliance with Law, may enter upon and take possession of the
Premises and remove Tenant, Tenant's Property and any party occupying the
Premises. Tenant shall pay Landlord, on demand, all past due Rent and other
losses and damages Landlord suffers as a result of Tenant's Default,
including, without limitation, all Costs of Reletting (defined below) and any
deficiency that may arise from reletting or the failure to relet the
Premises. "COSTS OF RELETTING" shall include all reasonable costs and
expenses incurred by Landlord in reletting or attempting to relet the
Premises, including, without limitation, legal fees, brokerage commissions,
the cost of alterations and the value of other concessions or allowances
granted to a new tenant. Notwithstanding the foregoing, if Landlord relets
the Premises for a term (the "RELET TERM") that extends past the stated
Termination Date (without consideration of any earlier termination pursuant
to this Section 19.01), the Proratable Costs of Reletting (hereinafter
defined) shall be applied as provided herein based on the percentage that the
length of the Term remaining hereunder on the date Landlord terminates the
Lease or Tenant's right to possession bears to the length of the Relet Term.
For example, if there are 2 years left on the Term at the time that Landlord
terminates possession and, prior to the expiration of such 2 year period,
Landlord enters into a Relet Term of 10 years with a new tenant, 20% of the
Proratable Costs of Reletting shall be considered in determining Landlord's
damages. "PRORATABLE COSTS OF RELETTING" shall mean the cost of renovating,
decorating and altering the Premises (except to the extent that such work is
necessary due to the acts of Tenant, it agents, employees or contractors or
for damage to the Premises other than ordinary wear and tear), brokerage
fees, and other concessions granted to the new tenant such as a moving
allowance, lease assumption and rental abatement. Notwithstanding anything
herein to the contrary, it is agreed that Costs of Reletting shall be offset
against the rent that Landlord receives in connection with a reletting of the
Premises and in no event shall the total damages payable by Tenant hereunder
exceed the amount for which Tenant would be liable if Landlord had not relet
the Premises or incurred any Costs of Reletting. Landlord agrees to use
reasonable efforts to mitigate damages, provided that such reasonable efforts
shall not require Landlord to relet the Premises in preference to any other
space in the Building or to relet the Premises to any party that Landlord
could reasonably reject as a transferee pursuant to Section 11 hereof.
(b) Terminate Tenant's right to possession of the Premises and, in
compliance with Law, remove Tenant, Tenant's Property and any parties
occupying the Premises. Landlord may (but shall not be obligated to) relet
all or any part of the Premises, without notice to Tenant, for such period of
time and on such terms and conditions (which may include concessions, free
rent and work allowances) as Landlord in its reasonable discretion shall
determine. Landlord may collect and receive all rents and other income from
the reletting. Tenant shall pay Landlord on demand all past due Rent, all
Costs of Reletting (prorated as described above in Section 19.01(a)) and any
deficiency arising from the reletting or failure to relet the Premises. The
re-entry or taking of possession of the Premises shall not be construed as an
election by Landlord to terminate this Lease.
19.02 In lieu of calculating damages under Section 19.01, Landlord may elect
to receive as damages the sum of (a) all Rent accrued through the date of
termination of this Lease or Tenant's right to possession, and (b) an amount
equal to the total Rent that Tenant would have been required to pay for the
remainder of the Term discounted to present value at nine percent (9%) per
annum, minus the then present fair rental value of the Premises for the
remainder of the Term, similarly discounted, after deducting all anticipated
Costs of Reletting. If Tenant is in Default of any of its non-monetary
obligations under the Lease, Landlord shall have the right to perform such
obligations. Tenant shall reimburse Landlord for the cost of such performance
upon demand together with an administrative charge equal to seven percent (7%)
of the cost of the work performed by Landlord. The repossession or re-entering
of all or any part of the Premises shall not relieve Tenant of its liabilities
and obligations under this Lease. No right or remedy of Landlord shall be
exclusive of any other right or remedy. Each right and remedy shall be
cumulative and in addition to any other right and remedy now or subsequently
available to Landlord at Law or in equity. Landlord agrees to use reasonable
efforts to mitigate damages, provided that such reasonable efforts shall not
require Landlord to relet the Premises in preference to any other space in the
Building or to relet the Premises to any party that Landlord could reasonably
reject as a transferee pursuant to Section 11 hereof.
20. LIMITATION OF LIABILITY.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS LEASE, THE
LIABILITY OF LANDLORD (AND OF ANY SUCCESSOR LANDLORD) SHALL BE
10
LIMITED TO THE LESSER OF (A) THE INTEREST OF LANDLORD IN THE PROPERTY, OR (B)
THE EQUITY INTEREST LANDLORD WOULD HAVE IN THE PROPERTY IF THE PROPERTY WERE
ENCUMBERED BY THIRD PARTY DEBT IN AN AMOUNT EQUAL TO 70% OF THE VALUE OF THE
PROPERTY. TENANT SHALL LOOK SOLELY TO LANDLORD'S INTEREST IN THE PROPERTY FOR
THE RECOVERY OF ANY JUDGMENT OR AWARD AGAINST LANDLORD OR ANY LANDLORD RELATED
PARTY. NEITHER LANDLORD NOR ANY LANDLORD RELATED PARTY SHALL BE PERSONALLY
LIABLE FOR ANY JUDGMENT OR DEFICIENCY, AND IN NO EVENT SHALL LANDLORD OR ANY
LANDLORD RELATED PARTY BE LIABLE TO TENANT FOR ANY LOST PROFIT, DAMAGE TO OR
LOSS OF BUSINESS OR ANY FORM OF SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGE.
BEFORE FILING SUIT FOR AN ALLEGED DEFAULT BY LANDLORD, TENANT SHALL GIVE
LANDLORD AND THE MORTGAGEE(S) WHOM TENANT HAS BEEN NOTIFIED HOLD MORTGAGES
(DEFINED IN SECTION 23 BELOW), NOTICE AND REASONABLE TIME TO CURE THE ALLEGED
DEFAULT.
21. RELOCATION.
[INTENTIONALLY OMITTED]
22. HOLDING OVER.
If Tenant fails to surrender all or any part of the Premises at the
termination of this Lease, occupancy of the Premises after termination shall be
that of a tenancy at sufferance. Tenant's occupancy shall be subject to all the
terms and provisions of this Lease, and Tenant shall pay an amount (on a per
month basis without reduction for partial months during the holdover) equal to
150% of the sum of the Base Rent and Additional Rent due for the period
immediately preceding the holdover. No holdover by Tenant or payment by Tenant
after the termination of this Lease shall be construed to extend the Term or
prevent Landlord from immediate recovery of possession of the Premises by
summary proceedings or otherwise. If Landlord is unable to deliver possession of
the Premises to a new tenant or to perform improvements for a new tenant as a
result of Tenant's holdover and Tenant fails to vacate the Premises within 15
days after notice from Landlord, Tenant shall be liable for all damages that
Landlord suffers from the holdover.
23. SUBORDINATION TO MORTGAGES; ESTOPPEL CERTIFICATE.
23.01 Tenant accepts this Lease subject and subordinate to any mortgage(s),
deed(s) of trust, ground lease(s) or other lien(s) now or subsequently arising
upon the Premises, the Building or the Property, and to renewals, modifications,
refinancings and extensions thereof (collectively referred to as a "MORTGAGE").
The party having the benefit of a Mortgage shall be referred to as a
"MORTGAGEE". This clause shall be self-operative, but upon request from a
Mortgagee, Tenant shall execute a commercially reasonable subordination
agreement in favor of the Mortgagee. As an alternative, a Mortgagee shall have
the right at any time to subordinate its Mortgage to this Lease. Upon request,
Tenant, without charge, shall attorn to any successor to Landlord's interest in
this Lease. Landlord and Tenant shall each, within 10 Business Days after
receipt of a written request from the other, execute and deliver a commercially
reasonable estoppel certificate to those parties as are reasonably requested by
the other (including a Mortgagee or prospective purchaser). Without limitation,
such estoppel certificate may include a certification as to the status of this
Lease, Tenant's knowledge of the existence of any defaults and the amount of
Rent that is due and payable.
23.02 Notwithstanding the foregoing, upon written request by Tenant, Landlord
will use reasonable efforts to obtain a non-disturbance, subordination and
attornment agreement from Landlord's then current Mortgagee (if any) on such
Mortgagee's then current standard form of agreement. "REASONABLE EFFORTS" of
Landlord shall not require Landlord to incur any cost, expense or liability to
obtain such agreement, it being agreed that Tenant shall be responsible for any
fee or review costs charged by the Mortgagee. Upon request of Landlord, Tenant
will execute the Mortgagee's form of non-disturbance, subordination and
attornment agreement and return the same to Landlord for execution by the
Mortgagee. Landlord's failure to obtain a non-disturbance, subordination and
attornment agreement for Tenant shall have no effect on the rights, obligations
and liabilities of Landlord and Tenant or be considered to be a default by
Landlord hereunder.
24. NOTICE.
All demands, approvals, consents or notices (collectively referred to as a
"NOTICE") shall be in writing and delivered by hand or sent by registered or
certified mail with return receipt
11
requested or sent by overnight or same day courier service at the party's
respective Notice Address(es) set forth in Section 1. Each notice shall be
deemed to have been received on the earlier to occur of actual delivery or the
date on which delivery is refused, or, if Tenant has vacated the Premises or any
other Notice Address of Tenant without providing a new Notice Address, 3 days
after notice is deposited in the U.S. mail or with a courier service in the
manner described above. Either party may, at any time, change its Notice Address
(other than to a post office box address) by giving the other party written
notice of the new address.
25. SURRENDER OF PREMISES.
At the termination of this Lease or Tenant's right of possession, Tenant
shall remove Tenant's Property from the Premises, and quit and surrender the
Premises to Landlord, broom clean, and in good order, condition and repair,
casualty not required to be repaired, ordinary wear and tear and damage which
Landlord is obligated to repair hereunder excepted. If Tenant fails to remove
any of Tenant's Property within 2 days after termination of this Lease or
Tenant's right to possession, Landlord, at Tenant's sole cost and expense, shall
be entitled (but not obligated) to remove and store Tenant's Property. Landlord
shall not be responsible for the value, preservation or safekeeping of Tenant's
Property. Tenant shall pay Landlord, upon demand, the expenses and storage
charges incurred. If Tenant fails to remove Tenant's Property from the Premises
or storage, within 30 days after notice, Landlord may deem all or any part of
Tenant's Property to be abandoned and title to Tenant's Property shall vest in
Landlord.
26. MISCELLANEOUS.
26.01 This Lease shall be interpreted and enforced in accordance with the
Laws of the state or commonwealth in which the Building is located and Landlord
and Tenant hereby irrevocably consent to the jurisdiction and proper venue of
such state or commonwealth. If any term or provision of this Lease shall to any
extent be void or unenforceable, the remainder of this Lease shall not be
affected. If there is more than one Tenant or if Tenant is comprised of more
than one party or entity, the obligations imposed upon Tenant shall be joint and
several obligations of all the parties and entities, and requests or demands
from any one person or entity comprising Tenant shall be deemed to have been
made by all such persons or entities. Notices to any one person or entity shall
be deemed to have been given to all persons and entities. Tenant represents and
warrants to Landlord that each individual executing this Lease on behalf of
Tenant is authorized to do so on behalf of Tenant and that Tenant is not, and,
to the Tenant's knowledge, the entities or individuals constituting Tenant or
which may own or control Tenant or which may be owned or controlled by Tenant
are not, among the individuals or entities identified on any list compiled
pursuant to Executive Order 13224 for the purpose of identifying suspected
terrorists.
26.02 If either party institutes a suit against the other for violation of or
to enforce any covenant, term or condition of this Lease, the prevailing party
shall be entitled to all of its costs and expenses, including, without
limitation, reasonable attorneys' fees. Landlord and Tenant hereby waive any
right to trial by jury in any proceeding based upon a breach of this Lease.
Either party's failure to declare a default immediately upon its occurrence, or
delay in taking action for a default, shall not constitute a waiver of the
default, nor shall it constitute an estoppel.
26.03 Whenever a period of time is prescribed for the taking of an action by
Landlord or Tenant (other than the payment of the Security Deposit or Rent or
any monetary obligation of either party), the period of time for the performance
of such action shall be extended by the number of days that the performance is
actually delayed due to strikes, acts of God, shortages of labor or materials,
war, terrorist acts, civil disturbances and other causes beyond the reasonable
control of the performing party ("FORCE MAJEURE").
26.04 Landlord shall have the right to transfer and assign, in whole or in
part, all of its rights and obligations under this Lease and in the Building and
Property. Upon transfer Landlord shall be released from any further obligations
hereunder and Tenant agrees to look solely to the successor in interest of
Landlord for the performance of such obligations, provided that, any successor
pursuant to a voluntary, third party transfer (but not as part of an involuntary
transfer resulting from a foreclosure or deed in lieu thereof) shall have
assumed in writing Landlord's obligations under this Lease either by contractual
obligation, assumption agreement or by operation of Law, and further provided
that Landlord and its successors, as the case may be, shall remain liable after
their respective periods of ownership with respect to any sums due in connection
with a breach or default by such party that arose during such period of
ownership by such party.
12
26.05 Landlord has delivered a copy of this Lease to Tenant for Tenant's
review only and the delivery of it does not constitute an offer to Tenant or an
option. This Lease shall not be effective against any party hereto until an
original copy of this Lease has been mutually executed by both parties.
(a) Tenant represents that it has dealt with no broker in connection with
this Lease. Tenant shall indemnify and hold Landlord and the Landlord Related
Parties harmless from all claims of any brokers claiming to have represented
Tenant in connection with this Lease. Landlord agrees to indemnify and hold
Tenant and the Tenant Related Parties harmless from all claims of any brokers
claiming to have represented Landlord in connection with this Lease.
(b) Agency Disclosure. At the signing of this Lease, Landlord's leasing
agent, Xxxxx Xxxxxxx, of Equity Office Properties Management Corp.
represented (X) Landlord, (___) Tenant, or (___) both Landlord and Tenant. At
the signing of this Lease, Tenant's agent, N/A, of N/A, represented (___)
Landlord, (X) Tenant, or (___) both Landlord and Tenant. Each party signing
this document confirms that the prior oral and/or written disclosure of
agency was provided to such party in this transaction, as required by RCW
18.86.030(1)(g).
(c) Landlord and Tenant, by their execution of this Lease, each
acknowledge and agree that they have timely received a pamphlet on the law of
real estate agency as required under RCW 18.86.030(1)(f).
26.06 Time is of the essence with respect to Tenant's exercise of any
expansion, renewal or extension rights granted to Tenant. The expiration of the
Term, whether by lapse of time, termination or otherwise, shall not relieve
either party of any obligations which accrued prior to or which may continue to
accrue after the expiration or termination of this Lease.
26.07 Tenant may peacefully have, hold and enjoy the Premises, subject to the
terms of this Lease, provided Tenant pays the Rent and fully performs all of its
covenants and agreements. This covenant shall be binding upon Landlord and its
successors only during its or their respective periods of ownership of the
Building.
26.08 This Lease does not grant any rights to light or air over or about the
Building. Landlord excepts and reserves exclusively to itself any and all rights
not specifically granted to Tenant under this Lease. This Lease constitutes the
entire agreement between the parties and supersedes all prior agreements and
understandings related to the Premises, including all lease proposals, letters
of intent and other documents. Neither party is relying upon any warranty,
statement or representation not contained in this Lease. This Lease may be
modified only by a written agreement signed by an authorized representative of
Landlord and Tenant.
13
Landlord and Tenant have executed this Lease as of the day and year first
above written.
LANDLORD:
EOP-NORTHWEST PROPERTIES, L.L.C., A DELAWARE
LIMITED LIABILITY COMPANY
By: EOP Operating Limited Partnership, a
Delaware limited partnership, its sole
member
By: Equity Office Properties Trust, a
Maryland real estate investment
trust, its general partner
By: /s/ Xxxxx X. Xxxxxx
-------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President-Leasing
Seattle Region
TENANT:
EVERGREENBANK, A WASHINGTON CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Name: Xxxxxx X. Xxxxxx
Title: President
Tenant's Tax ID Number (SSN or FEIN):
00-0000000
00
XXXXXXXX XXXXXXXXXXXXXXX
XXXXX XX XX )
COUNTY OF KING )ss:
I, the undersigned, a Notary Public, in and for the County and State
aforesaid, do hereby certify that Xxxxx X. Xxxxxx, personally known to me to be
the Vice President of Equity Office Properties Trust, a Maryland real estate
investment trust, and personally known to me to be the same person whose name is
subscribed to the foregoing instrument, appeared before me this day in person
and acknowledged that as such officer of said entity being authorized so to do,
(s)he executed the foregoing instrument on behalf of said entity, by subscribing
the name of such entity by himself/herself as such officer, as a free and
voluntary act, and as the free and voluntary act and deed of said entity under
the foregoing instrument for the uses and purposes therein set forth.
GIVEN under my hand and official seal this 17th day of February, 2005.
/s/ Xxxxxx Xxxx Good
-----------------------
Notary Public
(SEAL)
Xxxxxx Xxxx Good
-----------------------
Printed Name
My Commission Expires: 1/9/08
Residing at: Everett
TENANT ACKNOWLEDGMENTS
STATE OF WA )
COUNTY OF KING )ss:
On this the 13th day of January, 2005, before me a Notary Public duly
authorized in and for the said County in the State aforesaid to take
acknowledgments personally appeared Xxxxxx X. Xxxxxx known to me to be the
President of EveregreenBank , one of the parties described in the foregoing
instrument, and acknowledged that as such officer, being authorized so to do,
(s)he executed the foregoing instrument on behalf of said corporation by
subscribing the name of such corporation by himself/herself as such officer and
caused the corporate seal of said corporation to be affixed thereto, as a free
and voluntary act, and as the free and voluntary act of said corporation, for
the uses and purposes therein set forth.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ Xxxxxx Xxxxxx
-----------------------
Notary Public
(SEAL)
Xxxxxx Xxxxxx
-----------------------
Printed Name
My Commission Expires: 12/19/08
Residing at: Snohomish
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EXHIBIT A-1
OUTLINE AND LOCATION OF PREMISES
This Exhibit is attached to and made a part of the Lease by and between
EOP-NORTHWEST PROPERTIES, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY
("Landlord") and EVERGREENBANK, A WASHINGTON CORPORATION ("Tenant") for space in
the Building located at 0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx.
1
EXHIBIT A-2
LEGAL DESCRIPTION
This Exhibit is attached to and made a part of the Lease by and between
EOP-NORTHWEST PROPERTIES, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY
("Landlord") and EVERGREENBANK, A WASHINGTON CORPORATION ("Tenant") for space in
the Building located at 0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx.
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF WASHINGTON, COUNTY OF
KING, AND IS DESCRIBED AS FOLLOWS:
PARCEL A:
XXXX 0, 0, 0 XXX 0 XX XXXXX 14 OF ADDITION TO THE TOWN OF SEATTLE, AS LAID OUT
ON THE CLAIMS OF X.X. XXXXX AND X.X. XXXXX AND X.X. YESLER (COMMONLY KNOWN AS
X.X. XXXXX'X ADDITION TO THE CITY OF SEATTLE), AS PER PLAT RECORDED IN VOLUME 0
XX XXXXX, XXXX 00, XXXXXXX XX XXXX XXXXXX;
EXCEPT THE NORTHEASTERLY 9 FEET OF SAID LOTS CONDEMNED FOR STREET PURPOSES IN
KING COUNTY SUPERIOR COURT CAUSE NO. 54135, AS PROVIDED BY ORDINANCE NO. 14345
OF THE CITY OF SEATTLE;
TOGETHER WITH THE NORTHEASTERLY 1/2 OF THE ALLEY ADJOINING SAID PREMISES VACATED
BY ORDINANCE NO. 107147 OF THE CITY OF SEATTLE WHICH ATTACHED BY OPERATION OF
LAW;
SITUATE IN THE CITY OF SEATTLE, COUNTY OF KING, STATE OF WASHINGTON.
PARCEL B:
AN EASEMENT, AS ESTABLISHED UNDER SECTION 1(B) OF THE MEMORANDUM OF DEVELOPMENT
RIGHTS AGREEMENT RECORDED MARCH 8, 1978, UNDER RECORDING NOS. 7803080729, AS
SAID SECTION WAS AMENDED BY SECTION 6(F) OF THE SUBORDINATION AND RECOGNITION
AGREEMENT RECORDED SEPTEMBER 27, 1978 UNDER RECORDING NO. 0000000000, AS
ASSIGNED BY THOSE CERTAIN ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT RIGHTS
AGREEMENTS, EACH DATED AS OF DECEMBER 16, 1997, AND RECORDED UNDER RECORDING NO.
9712190957, 9712190958 AND 9712190959, FOR LIGHT AND AIR ABOVE THE ROOF LINE
HEIGHT OF NOT MORE THAN 163 FEET ABOVE CITY OF SEATTLE DATUM OF THE IMPROVEMENTS
ON THE FOLLOWING DESCRIBED PROPERTY:
XXXX 0, 0, 0 XXX 0 XX XXXXX 14 OF ADDITION TO THE TOWN OF SEATTLE, AS LAID OUT
ON THE CLAIMS OF X.X. XXXXX AND X.X. XXXXX AND X.X. YESLER (COMMONLY KNOWN AS
X.X. XXXXX'X ADDITION TO THE CITY OF SEATTLE), AS PER PLAT RECORDED IN VOLUME 0
XX XXXXX, XXXX 00, XXXXXXX XX XXXX XXXXXX;
EXCEPT THE SOUTHWESTERLY 12 FEET THEREOF CONDEMNED FOR STREET PURPOSES IN
DISTRICT COURT CAUSE NO. 7079 AS PROVIDED BY ORDINANCE NO. 1107 OF THE CITY OF
SEATTLE;
TOGETHER WITH THAT PORTION OF THE ALLEY ADJOINING SAID PREMISES VACATED BY
ORDINANCE NO. 107147 OF THE CITY OF SEATTLE WHICH ATTACHED BY OPERATION OF LAW;
SITUATE IN XXX XXXX XX XXXXXXX, XXXXXX XX XXXX, XXXXX OF WASHINGTON.
1
EXHIBIT B
EXPENSES AND TAXES
This Exhibit is attached to and made a part of the Lease by and between
EOP-NORTHWEST PROPERTIES, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY
("Landlord") and EVERGREENBANK, A WASHINGTON CORPORATION ("Tenant") for space in
the Building located at 0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx.
1. PAYMENTS.
1.01 Tenant shall pay Tenant's Pro Rata Share of the amount, if any, by which
Expenses (defined below) for each calendar year during the Term exceed Expenses
for the Base Year (the "EXPENSE EXCESS") and also the amount, if any, by which
Taxes (defined below) for each calendar year during the Term exceed Taxes for
the Base Year (the "TAX EXCESS"). If Expenses or Taxes in any calendar year
decrease below the amount of Expenses or Taxes for the Base Year, Tenant's Pro
Rata Share of Expenses or Taxes, as the case may be, for that calendar year
shall be $0. Landlord shall provide Tenant with a good faith estimate of the
Expense Excess and of the Tax Excess for each calendar year during the Term. On
or before the first day of each month, Tenant shall pay to Landlord a monthly
installment equal to one-twelfth of Tenant's Pro Rata Share of Landlord's
estimate of both the Expense Excess and Tax Excess. After its receipt of the
revised estimate, Tenant's monthly payments shall be based upon the revised
estimate. If Landlord does not provide Tenant with an estimate of the Expense
Excess or the Tax Excess by January 1 of a calendar year, Tenant shall continue
to pay monthly installments based on the previous year's estimate(s) until
Landlord provides Tenant with the new estimate.
1.02 As soon as is practical following the end of each calendar year,
Landlord shall furnish Tenant with a statement of the actual Expenses and
Expense Excess and the actual Taxes and Tax Excess for the prior calendar year.
Landlord shall use reasonable efforts to furnish the statement of actual
Expenses on or before June 1 of the calendar year immediately following the
calendar year to which the statement applies. If the estimated Expense Excess or
estimated Tax Excess for the prior calendar year is more than the actual Expense
Excess or actual Tax Excess, as the case may be, for the prior calendar year,
Landlord shall either provide Tenant with a refund or apply any overpayment by
Tenant against Additional Rent due or next becoming due, provided if the Term
expires before the determination of the overpayment, Landlord shall refund any
overpayment to Tenant after first deducting the amount of Rent due. Any
overpayment equal to or less than 1 month's installment of Base Rent plus
Additional Rent shall, at Landlord's option, be refunded to Tenant or credited
against the installments of Base Rent and Additional Rent due for the month(s)
immediately following the furnishing of such estimate. In the event of any
overpayment in excess of the equivalent of 1 month's installment of Base Rent
plus Additional Rent, the excess, at Tenant's option, shall be refunded to
Tenant or credited against the installment(s) of Base Rent and Additional Rent
due for the months immediately following the furnishing of such estimate. If the
estimated Expense Excess or estimated Tax Excess for the prior calendar year is
less than the actual Expense Excess or actual Tax Excess, as the case may be,
for such prior year, Tenant shall pay Landlord, within 30 days after its receipt
of the statement of Expenses or Taxes, any underpayment for the prior calendar
year.
2. EXPENSES.
2.01 "EXPENSES" means all costs and expenses incurred in each calendar year
in connection with operating, maintaining, repairing, and managing the Building
and the Property. Landlord agrees to act in a commercially reasonable manner in
incurring Expenses, taking into consideration the Class A nature of the
Building. Expenses include, without limitation: (a) all labor and labor related
costs, for employees directly involved in the operation and maintenance of the
Building and the Property for personnel at or below the level of general
manager, provided that if any employee performs services in connection with the
Building and other buildings, costs associated with such employee may be
proportionately included in Expenses based on the percentage of time such
employee spends in connection with the operation, maintenance, repair and
managing of the Building, including wages, salaries, bonuses, taxes, insurance,
uniforms, training, retirement plans, pension plans and other employee benefits;
(b) management fees, however, in no event shall the management fees for the
Building (expressed as a percentage of gross receipts for the Building) exceed
the prevailing market management fees (expressed as a percentage of gross
receipts), plus 1% of such fees, for comparable third party management companies
offering comparable management services in office buildings similar to the
Building in class, size, age and location; (c) the cost of equipping, staffing
and operating an on-site and/or off-site management office for the Building,
provided if the management office services one or more other buildings or
properties, the shared costs and expenses of equipping, staffing and operating
such management office(s) shall be equitably prorated and apportioned between
the Building and the other buildings or properties; (d) accounting costs; (e)
the cost of services; (f) rental and purchase cost of parts, supplies, tools and
equipment; (g) insurance premiums and deductibles; (h) electricity, gas and
other utility costs (excluding the cost of providing a given utility service to
individual tenant spaces if Tenant is billed directly for the cost of providing
such utility service to the
1
Premises as a separate charge in addition to Base Rent and Tenant's Pro Rata
Share of Expenses); and (i) the amortized cost of capital improvements (as
distinguished from replacement parts or components installed in the ordinary
course of business) made subsequent to the Base Year which are: (1) performed
primarily to reduce current or future operating expense costs, upgrade Building
security or otherwise improve the operating efficiency of the Property; or (2)
required to comply with any Laws that are enacted, or first interpreted to apply
to the Property, after the date of this Lease. The cost of capital improvements
shall be amortized by Landlord over the lesser of the Payback Period (defined
below) or the useful life of the capital improvement as reasonably determined by
Landlord. The amortized cost of capital improvements may, at Landlord's option,
include actual or imputed interest at the rate that Landlord would reasonably be
required to pay to finance the cost of the capital improvement. "PAYBACK PERIOD"
means the reasonably estimated period of time that it takes for the cost savings
resulting from a capital improvement to equal the total cost of the capital
improvement. Landlord, by itself or through an affiliate, shall have the right
to directly perform, provide and be compensated for any services under this
Lease. If Landlord incurs Expenses for the Building or Property together with
one or more other buildings or properties, whether pursuant to a reciprocal
easement agreement, common area agreement or otherwise, the shared costs and
expenses shall be equitably prorated and apportioned between the Building and
Property and the other buildings or properties.
2.02 Expenses shall not include:
(i) the cost of capital improvements (except as set forth above);
(ii) depreciation;
(iii) principal payments of mortgage and other non-operating debts of
Landlord;
(iv) the cost of repairs or other work to the extent Landlord is
reimbursed by insurance or condemnation proceeds or any third
party;
(v) costs in connection with leasing space in the Building, including
brokerage commissions, brochures and marketing supplies;
(vi) lease concessions, rental abatements, and construction allowances
granted to specific tenants;
(vii) costs incurred in connection with the sale, financing or
refinancing of the Building;
(viii) fines, interest and penalties incurred due to the late payment of
Taxes or Expenses;
(ix) organizational expenses associated with the creation and operation
of the entity which constitutes Landlord;
(x) any penalties or damages that Landlord pays to Tenant under this
Lease or to other tenants in the Building under their respective
leases;
(xi) sums (other than management fees, it being agreed that the
management fees included in Expenses are as described in Section
2.01 above) paid to subsidiaries or other affiliates of Landlord
for services on or to the Property, Building and/or Premises, but
only to the extent that the costs of such services exceed the
competitive cost for such services rendered by persons or entities
of similar skill, competence and experience;
(xii) any fines, penalties or interest resulting from the negligence or
willful misconduct of the Landlord or its agents, contractors, or
employees;
(xiii) advertising and promotional expenditures;
(xiv) Landlord's charitable and political contributions;
(xv) attorneys' fees and other expenses incurred in connection with
negotiations or disputes with, or leasing to, tenants or
prospective tenants of the Building; fines or penalties incurred
by Landlord for violations of any applicable Law; legal expenses
arising out of (i) the negotiation, preparation or termination of
leases or other occupancy agreements, (ii) the interpretation of
leases or other occupancy agreements, (iii) the enforcement of the
provisions of any lease or other occupancy agreement affecting the
Property or Building including without limitation this Lease, (iv)
any action against a present or former tenant or occupant under a
lease or other occupancy agreement, including, without limitation,
eviction, distraint, levy and collection actions;
(xvi) the cost or expense of any services or benefits provided generally
to other tenants in the Building and not provided or available to
Tenant;
(xvii) all costs of purchasing or leasing major sculptures, paintings or
other major works or objects of art (as opposed to decorations
purchased or leased by Landlord for display in the Common Areas of
the Building);
(xviii) any expenses for which Landlord has received actual reimbursement
(other than through Expenses);
(xix) costs incurred by Landlord in connection with the correction of
defects in design and original construction of the Building or
Property;
(xx) any cost or expense related to removal, cleaning, abatement or
remediation of hazardous materials in or about the Building,
Common Area or Property, including, without limitation, asbestos,
except to the extent such removal, cleaning, abatement or
remediation is related to the general repair and maintenance of
the Building, Common Area or Property;
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(xxi) fines or penalties incurred as a result of violation by
Landlord of any applicable Laws.
2.03 If at any time during a calendar year the Building is not at
least 95% occupied or Landlord is not supplying services to at least 95% of the
total Rentable Square Footage of the Building, Expenses shall be determined as
if the Building had been 95% occupied and Landlord had been supplying services
to 95% of the Rentable Square Footage of the Building. If Expenses for a
calendar year are determined as provided in the prior sentence, Expenses for the
Base Year shall also be determined in such manner. Notwithstanding the
foregoing, Landlord may calculate the extrapolation of Expenses under this
Section based on 100% occupancy and service so long as such percentage is used
consistently for each year of the Term. The extrapolation of Expenses under this
Section shall be performed in accordance with the methodology specified by the
Building Owners and Managers Association.
3. "TAXES" shall mean: (a) all real property taxes and other assessments
on the Building and/or Property, including, but not limited to, gross receipts
taxes, assessments for special improvement districts and building improvement
districts, governmental charges, fees and assessments for police, fire, traffic
mitigation or other governmental service of purported benefit to the Property,
taxes and assessments levied in substitution or supplementation in whole or in
part of any such taxes and assessments and the Property's share of any real
estate taxes and assessments under any reciprocal easement agreement, common
area agreement or similar agreement as to the Property; (b) all personal
property taxes for property that is owned by Landlord and used in connection
with the operation, maintenance and repair of the Property; and (c) all costs
and fees incurred in connection with seeking reductions in any tax liabilities
described in (a) and (b), including, without limitation, any commercially
reasonable costs incurred by Landlord for compliance, review and appeal of tax
liabilities. Without limitation, Taxes shall not include any income, capital
levy, transfer, capital stock, gift, estate or inheritance tax. If a change in
Taxes is obtained for any year of the Term during which Tenant paid Tenant's Pro
Rata Share of any Tax Excess, then Taxes for that year will be retroactively
adjusted and Landlord shall provide Tenant with a credit, if any, based on the
adjustment. Likewise, if a change is obtained for Taxes for the Base Year, Taxes
for the Base Year shall be restated and the Tax Excess for all subsequent years
shall be recomputed. Tenant shall pay Landlord the amount of Tenant's Pro Rata
Share of any such increase in the Tax Excess within 30 days after Tenant's
receipt of a statement from Landlord. Any tax assessments, including special
assessments, on or against the Building, Land, improvements, common areas, or
betterment shall be computed over the longest period of time as permitted by law
without penalty and Tenant shall only be responsible for that percentage
assessment or installment that the then remaining portion of the Lease Term
bears to the useful life of the public improvement or betterments as reasonably
determined by Landlord.
4. AUDIT RIGHTS. Tenant, within 365 days after receiving Landlord's
statement of Expenses, may give Landlord written notice ("REVIEW NOTICE") that
Tenant intends to review Landlord's records of the Expenses for the calendar
year to which the statement applies. Within a reasonable time after receipt of
the Review Notice, Landlord shall make all pertinent records available for
inspection that are reasonably necessary for Tenant to conduct its review. If
any records are maintained at a location other than the management office for
the Building, Tenant may either inspect the records at such other location or
pay for the reasonable cost of copying and shipping the records. If Tenant
retains an agent to review Landlord's records, the agent must be with a CPA firm
licensed to do business in the state or commonwealth where the Property is
located. Tenant shall be solely responsible for all costs, expenses and fees
incurred for the audit. Within 90 days after the records are made available to
Tenant, Tenant shall have the right to give Landlord written notice (an
"OBJECTION NOTICE") stating in reasonable detail any objection to Landlord's
statement of Expenses for that year. If Tenant fails to give Landlord an
Objection Notice within the 90 day period or fails to provide Landlord with a
Review Notice within the 365 day period described above, Tenant shall be deemed
to have approved Landlord's statement of Expenses and shall be barred from
raising any claims regarding the Expenses for that year. The records obtained by
Tenant shall be treated as confidential. In no event shall Tenant be permitted
to examine Landlord's records or to dispute any statement of Expenses unless
Tenant has paid and continues to pay all Rent when due. If Landlord and Tenant
determine that Expenses for the calendar year are less than reported, Landlord
shall provide Tenant with a refund in the amount of the overpayment by Tenant.
In addition, if Landlord and Tenant determine that Expenses for the calendar
year were less than stated by more than 5%, Landlord, within 30 days after its
receipt of paid invoices therefor from Tenant, shall reimburse Tenant for any
reasonable amounts paid by Tenant to third parties in connection with such
review by Tenant. Likewise, if Landlord and Tenant determine that Expenses for
the calendar year are greater than reported, Tenant shall pay Landlord the
amount of any underpayment within 30 days. The records obtained by Tenant shall
be treated as confidential, except to the extent that such information is used
by Tenant to contest Expenses and to the extent Tenant is compelled to disclose
such information by court order.
3
EXHIBIT C
WORK LETTER
This Exhibit is attached to and made a part of the Lease by and between
EOP-NORTHWEST PROPERTIES, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY
("Landlord") and EVERGREENBANK, A WASHINGTON CORPORATION ("Tenant") for space in
the Building located at 0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx.
As used in this Workletter, the "Premises" shall be deemed to mean the Premises,
as initially defined in the attached Lease.
1. Tenant, following the delivery of the Premises by Landlord and the full
and final execution and delivery of the Lease to which this Exhibit is
attached and all prepaid rental and security deposits required under such
agreement, shall have the right to perform alterations and improvements in
the Premises (the "INITIAL ALTERATIONS"). Notwithstanding the foregoing,
Tenant and its contractors shall not have the right to perform Initial
Alterations in the Premises unless and until Tenant has complied with all
of the terms and conditions Section 9 of the Lease, including, without
limitation, approval by Landlord of the final plans for the Initial
Alterations and the contractors to be retained by Tenant to perform such
Initial Alterations; further, any mechanical and/or electrical
subcontractor(s) will be designated by Landlord in Landlord's sole
discretion. Tenant shall be responsible for all elements of the design of
Tenant's plans (including, without limitation, compliance with law,
functionality of design, the structural integrity of the design, the
configuration of the Premises and the placement of Tenant's furniture,
appliances and equipment), and Landlord's approval of Tenant's plans shall
in no event relieve Tenant of the responsibility for such design.
Landlord's approval of the contractors to perform the Initial Alterations
shall not be unreasonably withheld; Landlord approves JMS Construction to
act as the general contractor performing the Initial Alterations. The
parties agree that Landlord's approval of the general contractor to
perform the Initial Alterations shall not be considered to be unreasonably
withheld if any such general contractor (i) does not have trade references
reasonably acceptable to Landlord, (ii) does not maintain insurance as
required pursuant to the terms of this Lease, (iii) does not have the
ability to be bonded for the work in an amount of no less than 150% of the
total estimated cost of the Initial Alterations, (iv) does not provide
current financial statements reasonably acceptable to Landlord, or (v) is
not licensed as a contractor in the state/municipality in which the
Premises is located. Tenant acknowledges the foregoing is not intended to
be an exclusive list of the reasons why Landlord may reasonably withhold
its consent to a general contractor.
2. Provided Tenant is not in default after applicable notice and cure
periods, Landlord agrees to contribute the sum of $75,880.00 (i.e., $10.00
per rentable square foot of the Premises) (the "ALLOWANCE") toward the
cost of performing the Initial Alterations in preparation of Tenant's
occupancy of the Premises. The Allowance may only be used for the cost of
preparing design and construction documents and mechanical and electrical
plans for the Initial Alterations, project management fees, sales tax,
cabling, permits, and for hard costs in connection with the Initial
Alterations. The Allowance shall be paid to Tenant within 30 days
following receipt by Landlord of (1) receipted bills covering all labor
and materials expended and used in the Initial Alterations; (2) a sworn
contractor's affidavit from the general contractor and a request to
disburse from Tenant containing an approval by Tenant of the work done;
(3) full and final waivers of lien; (4) as-built plans of the Initial
Alterations; and (5) the certification of Tenant and its architect that
the Initial Alterations have been installed in a good and workmanlike
manner in accordance with the approved plans, and in accordance with
applicable laws, codes and ordinances. The Allowance shall be disbursed in
the amount reflected the requirements above. Notwithstanding anything
herein to the contrary, Landlord shall not be obligated to disburse any
portion of the Allowance during the continuance of an uncured default
under the Lease, and Landlord's obligation to disburse shall only resume
when and if such default is cured.
3. In no event shall the Allowance be used for the purchase of equipment,
furniture or other items of personal property of Tenant. If Tenant does
not submit a request for payment of the entire Allowance to Landlord in
accordance with the provisions contained in this Exhibit by December 31,
2005, any unused amount shall accrue to the sole benefit of Landlord, it
being understood that Tenant shall not be entitled to any credit,
abatement or other concession in connection therewith. Tenant shall be
responsible for all applicable state
1
sales or use taxes, if any, payable in connection with the Initial
Alterations and/or Allowance. Landlord shall be entitled to deduct from
the Allowance a construction management fee for Landlord's oversight of
the Initial Alterations in an amount equal to 3.5% of the total cost of
the Initial Alterations.
4. Tenant agrees to accept the Premises in its "as-is" condition and
configuration, it being agreed that Landlord shall not be required to
perform any work or, except as provided above with respect to the
Allowance, incur any costs in connection with the construction or
demolition of any improvements in the Premises. However, Landlord will
ensure that the existing tenant in the Premises removes the two (2)
existing vaults and the existing teller line from the Premises prior to
the delivery of the Premises to Tenant.
5. This Exhibit shall not be deemed applicable to any additional space added
to the Premises at any time or from time to time, whether by any options
under the Lease or otherwise, or to any portion of the original Premises
or any additions to the Premises in the event of a renewal or extension of
the original Term of the Lease, whether by any options under the Lease or
otherwise, unless expressly so provided in the Lease or any amendment or
supplement to the Lease.
2
EXHIBIT D
COMMENCEMENT LETTER
(INTENTIONALLY OMITTED)
1
EXHIBIT E
BUILDING RULES AND REGULATIONS
This Exhibit is attached to and made a part of the Lease by and between
EOP-NORTHWEST PROPERTIES, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY
("Landlord") and EVERGREENBANK, A WASHINGTON CORPORATION ("Tenant") for space in
the Building located at 0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx.
The following rules and regulations shall apply, where applicable, to the
Premises, the Building, the parking facilities (if any), the Property and the
appurtenances. In the event of a conflict between the following rules and
regulations and the remainder of the terms of the Lease, the remainder of the
terms of the Lease shall control. Capitalized terms have the same meaning as
defined in the Lease.
1. Sidewalks, doorways, vestibules, halls, stairways and other similar areas
shall not be obstructed by Tenant or used by Tenant for any purpose other
than ingress and egress to and from the Premises. No rubbish, litter,
trash, or material shall be placed, emptied, or thrown in those areas. At
no time shall Tenant permit Tenant's employees to loiter in Common Areas
or elsewhere about the Building or Property.
2. Plumbing fixtures and appliances shall be used only for the purposes for
which designed and no sweepings, rubbish, rags or other unsuitable
material shall be thrown or placed in the fixtures or appliances. Damage
resulting to fixtures or appliances by Tenant, its agents, employees or
invitees shall be paid for by Tenant and Landlord shall not be responsible
for the damage.
3. So long as Tenant is not in default under the Lease beyond the expiration
of applicable grace periods, and subject to applicable code restrictions,
Tenant shall have the right to install signage identifying the original
Tenant (i.e., EvergreenBank), but not any subtenant or assignee of Tenant,
as reasonably designated by Landlord. The size, method of attachment,
design and materials comprising such signage shall all be subject to
Landlord's prior written approval. Tenant will be solely responsible for
any costs associated with the maintenance of such signage (such
maintenance to be performed by Landlord unless Landlord otherwise elects
to require Tenant maintain such signage). At the expiration or sooner
termination of this Lease, Tenant, at Tenant's sole cost and expense,
shall remove any such signage and repair all damage to the Building caused
by the installation and/or removal of such signage, to the reasonable
satisfaction of Landlord. No other signs, advertisements or notices shall
be painted or affixed to windows, doors or other parts of the Building,
except those of such color, size, style and in such places as are first
approved in writing by Landlord. All tenant identification and suite
numbers at the entrance to the Premises shall be installed by Landlord, at
Tenant's cost and expense, using the standard graphics for the Building.
Except in connection with the hanging of lightweight pictures and wall
decorations, no nails, hooks or screws shall be inserted into any part of
the Premises or Building except by the Building maintenance personnel
without Landlord's prior approval, which approval shall not be
unreasonably withheld.
4. Landlord may provide and maintain in the first floor (main lobby) of the
Building an alphabetical directory board or other directory device listing
tenants and no other directory shall be permitted unless previously
consented to by Landlord in writing.
5. Tenant shall not place any lock(s) on any door in the Premises or
Building, except those that are typically Secured Areas of a banking and
financial institution, without Landlord's prior written consent, which
consent shall not be unreasonably withheld, and Landlord shall have the
right at all times to retain and use keys or other access codes or devices
to all locks within and into the Premises. A reasonable number of keys to
the locks on the entry doors in the Premises shall be furnished by
Landlord to Tenant at Tenant's cost and Tenant shall not make any
duplicate keys. All keys shall be returned to Landlord at the expiration
or early termination of the Lease.
6. All contractors, contractor's representatives and installation technicians
performing work in the Building shall be subject to Landlord's prior
approval, which approval shall not be unreasonably withheld, and shall be
required to comply with Landlord's standard rules, regulations, policies
and procedures, which may be revised from time to time.
1
7. Movement in or out of the Building of furniture or office equipment, or
dispatch or receipt by Tenant of merchandise or materials requiring the
use of elevators, stairways, lobby areas or loading dock areas, shall be
restricted to hours reasonably designated by Landlord. Tenant shall obtain
Landlord's prior approval by providing a detailed listing of the activity,
which approval shall not be unreasonably withheld. If approved by
Landlord, the activity shall be under the supervision of Landlord and
performed in the manner required by Landlord. Tenant shall assume all risk
for damage to articles moved and injury to any persons resulting from the
activity. If equipment, property, or personnel of Landlord or of any other
party is damaged or injured as a result of or in connection with the
activity, Tenant shall be solely liable for any resulting damage, loss or
injury.
8. Landlord shall have the right to approve the weight, size, or location of
heavy equipment or articles in and about the Premises, which approval
shall not be unreasonably withheld. Damage to the Building by the
installation, maintenance, operation, existence or removal of Tenant's
Property shall be repaired at Tenant's sole expense.
9. Corridor doors, when not in use, shall be kept closed.
10. Tenant shall not: (1) make or permit any improper, objectionable or
unpleasant noises or odors in the Building, or otherwise interfere in any
way with other tenants or persons having business with them; (2) solicit
business or distribute or cause to be distributed, in any portion of the
Building, handbills, promotional materials or other advertising; or (3)
conduct or permit other activities in the Building that might, in
Landlord's sole opinion, constitute a nuisance.
11. No animals, except those assisting handicapped persons, shall be brought
into the Building or kept in or about the Premises.
12. No inflammable, explosive or dangerous fluids or substances shall be used
or kept by Tenant in the Premises, Building or about the Property, except
for those substances as are typically found in similar premises used for
general office purposes and are being used by Tenant in a safe manner and
in accordance with all applicable Laws. Tenant shall not, without
Landlord's prior written consent, use, store, install, spill, remove,
release or dispose of, within or about the Premises or any other portion
of the Property, any asbestos-containing materials or any solid, liquid or
gaseous material now or subsequently considered toxic or hazardous under
the provisions of 42 U.S.C. Section 9601 et seq. or any other applicable
environmental Law which may now or later be in effect. Tenant shall comply
with all Laws pertaining to and governing the use of these materials by
Tenant and shall remain solely liable for the costs of abatement and
removal.
13. Tenant shall not use or occupy the Premises in any manner or for any
purpose which might injure the reputation or impair the present or future
value of the Premises or the Building. Tenant shall not use, or permit any
part of the Premises to be used for lodging, sleeping or for any illegal
purpose.
14. Tenant shall not take any action which would violate Landlord's labor
contracts or which would cause a work stoppage, picketing, labor
disruption or dispute or interfere with Landlord's or any other tenant's
or occupant's business or with the rights and privileges of any person
lawfully in the Building ("LABOR DISRUPTION"). Tenant shall take the
actions necessary to resolve the Labor Disruption, and shall have pickets
removed and, at the request of Landlord, immediately terminate any work in
the Premises that gave rise to the Labor Disruption, until Landlord gives
its written consent for the work to resume. Tenant shall have no claim for
damages against Landlord or any of the Landlord Related Parties nor shall
the Commencement Date of the Term be extended as a result of the above
actions.
15. Tenant shall not install, operate or maintain in the Premises or in any
other area of the Building, electrical equipment that would overload the
electrical system beyond its capacity for proper, efficient and safe
operation as determined solely by Landlord. Tenant shall not furnish
cooling or heating to the Premises, including, without limitation, the use
of electric or gas heating devices, without Landlord's prior written
consent. Tenant shall not use more than its proportionate share of
telephone lines and other telecommunication facilities available to
service the Building.
16. Tenant shall not operate or permit to be operated a coin or token operated
vending machine or similar device (including, without limitation,
telephones, lockers, toilets,
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scales, amusement devices and machines for sale of beverages, foods,
candy, cigarettes and other goods), except for machines for the exclusive
use of Tenant's employees and invitees.
17. Bicycles and other vehicles are not permitted inside the Building or on
the walkways outside the Building, except in areas designated by Landlord.
18. Landlord may from time to time adopt systems and procedures for the
security and safety of the Building and Property, its occupants, entry,
use and contents. Tenant, its agents, employees, contractors, guests and
invitees shall comply with Landlord's systems and procedures.
19. Landlord shall have the right to prohibit the use of the name of the
Building or any other publicity by Tenant that in Landlord's sole opinion
may impair the reputation of the Building or its desirability. Upon
written notice from Landlord, Tenant shall refrain from and discontinue
such publicity immediately.
20. Neither Tenant nor its agents, employees, contractors, guests or invitees
shall smoke or permit smoking in the Common Areas, unless a portion of the
Common Areas have been declared a designated smoking area by Landlord, nor
shall the above parties allow smoke from the Premises to emanate into the
Common Areas or any other part of the Building. Landlord shall have the
right to designate the Building (including the Premises) as a non-smoking
building.
21. Landlord shall have the right to designate and approve standard window
coverings for the Premises and to establish rules to assure that the
Building presents a uniform exterior appearance. Tenant shall ensure, to
the extent reasonably practicable, that window coverings are closed on
windows in the Premises while they are exposed to the direct rays of the
sun.
22. Deliveries to and from the Premises shall be made only at the times in the
areas and through the entrances and exits reasonably designated by
Landlord. Tenant shall not make deliveries to or from the Premises in a
manner that might interfere with the use by any other tenant of its
premises or of the Common Areas, any pedestrian use, or any use which is
inconsistent with good business practice.
23. The work of cleaning personnel shall not be hindered by Tenant after 5:30
P.M., and cleaning work may be done at any time when the offices are
vacant. Windows, doors and fixtures may be cleaned at any time. Tenant
shall provide adequate waste and rubbish receptacles to prevent
unreasonable hardship to the cleaning service.
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EXHIBIT F
ADDITIONAL PROVISIONS
This Exhibit is attached to and made a part of the Lease by and between
EOP-NORTHWEST PROPERTIES, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY
("Landlord") and EVERGREENBANK, A WASHINGTON CORPORATION ("Tenant") for space in
the Building located at 0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx.
1. PARKING.
1.01 During the initial Term and the Extended Term, if any, Landlord
shall lease to Tenant, or cause the operator (the "OPERATOR") of the
garage servicing the Building (the "GARAGE") to lease to Tenant, and
Tenant shall have the right but not the obligation to lease from
Landlord or such Operator, a total of 4 unreserved parking spaces
and 2 reserved parking spaces (collectively, the "Spaces") in the
Building garage (the "GARAGE") for the use of Tenant, its employees
and customers. During the initial Term, Tenant shall pay Landlord,
as Additional Rent in accordance with Article 4 of the Lease, the
sum of $260.00 per month, plus applicable tax thereon, if any, for
each unreserved Space leased by Tenant hereunder, and the sum of
$390.00 per month, plus applicable tax thereon, if any, for each
reserved Space leased by Tenant hereunder, as such rates may be
adjusted from time-to-time to reflect the then current rate for
parking in the Garage. If requested by Landlord, Tenant shall
execute and deliver to Landlord the standard parking agreement used
by Landlord or the Operator (the "PARKING AGREEMENT") in the Garage
for such Spaces.
1.02 No deductions or allowances shall be made for days when Tenant or
any of its employees does not utilize the parking facilities or for
Tenant utilizing less than all of the Spaces. Tenant shall not have
the right to lease or otherwise use more than the number of reserved
and unreserved Spaces set forth above.
1.03 Except for particular spaces and areas designated by Landlord or the
Operator for reserved parking, all parking in the Garage shall be on
an unreserved, first-come, first-served basis.
1.04 Neither Landlord nor the Operator shall be responsible for money,
jewelry, automobiles or other personal property lost in or stolen
from the Garage regardless of whether such loss or theft occurs when
the Garage or other areas therein are locked or otherwise secured.
Except as caused by the negligence or willful misconduct of Landlord
or its employees, and without limiting the terms of the preceding
sentence, Landlord shall not be liable for any loss, injury or
damage to persons using the Garage or automobiles or other property
therein, it being agreed that, to the fullest extent permitted by
law, the use of the Spaces shall be at the sole risk of Tenant and
its employees.
1.05 Landlord or its Operator shall have the right from time to time to
designate the location of the Spaces and to promulgate reasonable
rules and regulations regarding the Garage, the Spaces and the use
thereof, including, but not limited to, rules and regulations
controlling the flow of traffic to and from various parking areas,
the angle and direction of parking and the like. Tenant shall comply
with and cause its employees to comply with all such rules and
regulations, all reasonable additions and amendments thereto, and
the terms and provisions of the Parking Agreement.
1.06 Tenant shall not store or permit its employees to store any
automobiles in the Garage without the prior written consent of
Landlord. Except for emergency repairs, Tenant and its employees
shall not perform any work on any automobiles while located in the
Garage or on the Property. If it is necessary for Tenant or its
employees to leave an automobile in the Garage overnight, Tenant
shall provide Landlord with prior notice thereof designating the
license plate number and model of such automobile.
1.07 Landlord or the Operator shall have the right to temporarily close
the Garage or certain areas therein in order to perform necessary
repairs, maintenance and improvements to the Garage.
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1.08 Except in connection with a Permitted Transfer or an assignment or
sublease of the Premises approved by Landlord, Tenant shall not
assign or sublease any of the Spaces without the consent of
Landlord. Landlord shall have the right to terminate the agreement
contained in this Section 1 or in the Parking Agreement with respect
to any Spaces that Tenant desires to sublet or assign.
1.09 As of the date of this Lease, Landlord has elected to control access
to the Garage by providing parking access cards. Landlord shall
provide Tenant with one initial card for each Space that Tenant is
leasing hereunder, provided that Landlord shall have the right to
require Tenant or its employees to place a deposit on subsequent or
replacement access cards and to pay a fee for any lost or damaged
cards or keys.
1.10 In addition to Tenant's monthly parking for the use of Tenant and
its employees described in 1.01 above, Landlord and Tenant agree
that Landlord or the Operator shall provide pre-paid parking
validation stickers or prepaid coupon books to Tenant for the use of
Tenant's customers, clients and invitees for their short term,
hourly parking at a the then-current applicable rate for short-term
parking in the Garage; Tenant will be afforded a ten percent (10%)
discount from the Garage's standard parking rates (as the same may
change from time to time) for such validation stickers and/or coupon
books.
2. CONDITION PRECEDENT. [INTENTIONALLY OMITTED]
3. RENEWAL OPTION.
3.01 Grant of Option; Conditions. Tenant shall have the right to extend
the Term (the "RENEWAL OPTION") for one additional period of 5 years
commencing on the day following the Termination Date of the initial
Term and ending on the 5th anniversary of the Termination Date (the
"RENEWAL TERM"), if:
(1) Landlord receives notice of exercise ("INITIAL RENEWAL
NOTICE") not less than 12 full calendar months prior to the
expiration of the initial Term and not more than 15 full
calendar months prior to the expiration of the initial Term;
and
(2) Tenant is not in default under the Lease beyond any applicable
notice and cure periods at the time that Tenant delivers its
Initial Renewal Notice or at the time Tenant delivers its
Binding Notice (as defined below); and
(3) No part of the Premises is sublet (other than pursuant to a
Permitted Transfer or Ownership Change, as defined in Section
11.04 of the Lease) at the time that Tenant delivers its
Initial Renewal Notice or at the time Tenant delivers its
Binding Notice; and
(4) The Lease has not been assigned (other than pursuant to a
Permitted Transfer or Ownership Change, as defined in Section
11.04 of the Lease) prior to the date that Tenant delivers its
Initial Renewal Notice or prior to the date Tenant delivers
its Binding Notice.
3.02 Terms Applicable to Premises During Renewal Term.
(1) The initial Base Rent rate per rentable square foot for the
Premises during the Renewal Term shall equal the Prevailing
Market rate (hereinafter defined) per rentable square foot for
the Premises. Base Rent during the Renewal Term shall
increase, if at all, in accordance with the increases assumed
in the determination of Prevailing Market rate. Base Rent
attributable to the Premises shall be payable in monthly
installments in accordance with the terms and conditions of
Article 4 of the Lease.
(2) Tenant shall pay Additional Rent (i.e., Expenses and Taxes)
for the Premises during the Renewal Term in accordance with
the terms of EXHIBIT B of the Lease, and the manner and method
in which Tenant reimburses Landlord for Tenant's share of
Taxes and Expenses and the
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Base Year, if any, applicable to such matter, shall be some of
the factors considered in determining the Prevailing Market
rate for the Renewal Term.
3.03 Initial Procedure for Determining Prevailing Market. Within 30 days
after receipt of Tenant's Initial Renewal Notice, Landlord shall
advise Tenant of the applicable Base Rent rate for the Premises for
the Renewal Term. Tenant, within 15 days after the date on which
Landlord advises Tenant of the applicable Base Rent rate for the
Renewal Term, shall either (i) give Landlord final binding written
notice ("BINDING NOTICE") of Tenant's exercise of its Renewal
Option, or (ii) if Tenant disagrees with Landlord's determination,
provide Landlord with written notice of rejection (the "REJECTION
NOTICE"). If Tenant fails to provide Landlord with either a Binding
Notice or Rejection Notice within such 15 day period, Tenant's
Renewal Option shall be null and void and of no further force and
effect. If Tenant provides Landlord with a Binding Notice, Landlord
and Tenant shall enter into the Renewal Amendment (as defined below)
upon the terms and conditions set forth herein. If Tenant provides
Landlord with a Rejection Notice, Landlord and Tenant shall work
together in good faith to agree upon the Prevailing Market rate for
the Premises during the Renewal Term. Upon agreement, Landlord and
Tenant shall enter into the Renewal Amendment in accordance with the
terms and conditions hereof. Notwithstanding the foregoing, if
Landlord and Tenant fail to agree upon the Prevailing Market rate
within 30 days after the date Tenant provides Landlord with the
Rejection Notice, Tenant, by written notice to Landlord (the
"ARBITRATION NOTICE") within 5 days after the expiration of such 30
day period, shall have the right to have the Prevailing Market rate
determined in accordance with the arbitration procedures described
in Section 3.04 below. If Landlord and Tenant fail to agree upon the
Prevailing Market rate within the 30 day period described and Tenant
fails to timely exercise its right to arbitrate, Tenant's Renewal
Option shall be deemed to be null and void and of no further force
and effect.
3.04 Arbitration Procedure.
(1) If Tenant provides Landlord with an Arbitration Notice,
Landlord and Tenant, within 5 days after the date of the
Arbitration Notice, shall each simultaneously submit to the
other, in a sealed envelope, its good faith estimate of the
Prevailing Market rate for the Premises during the Renewal
Term (collectively referred to as the "ESTIMATES"). If the
higher of such Estimates is not more than 105% of the lower of
such Estimates, then Prevailing Market rate shall be the
average of the two Estimates. If the Prevailing Market rate is
not resolved by the exchange of Estimates, then, within 7 days
after the exchange of Estimates, Landlord and Tenant shall
each select an appraiser to determine which of the two
Estimates most closely reflects the Prevailing Market rate for
the Premises during the Renewal Term. Each appraiser so
selected shall be certified as an MAI appraiser or as an ASA
appraiser and shall have had at least 5 years experience
within the previous 10 years as a real estate appraiser
working in Seattle, Washington, with working knowledge of
current rental rates and practices. For purposes hereof, an
"MAI" appraiser means an individual who holds an MAI
designation conferred by, and is an independent member of, the
American Institute of Real Estate Appraisers (or its successor
organization, or in the event there is no successor
organization, the organization and designation most similar),
and an "ASA" appraiser means an individual who holds the
Senior Member designation conferred by, and is an independent
member of, the American Society of Appraisers (or its
successor organization, or, in the event there is no successor
organization, the organization and designation most similar).
(2) Upon selection, Landlord's and Tenant's appraisers shall work
together in good faith to agree upon which of the two
Estimates most closely reflects the Prevailing Market rate for
the Premises. The Estimate chosen by such appraisers shall be
binding on both Landlord and Tenant as the Base Rent rate for
the Premises during the Renewal Term. If either Landlord or
Tenant fails to appoint an appraiser within the 7 day period
referred to above, the appraiser appointed by the other party
shall be the sole appraiser for the purposes hereof. If the
two appraisers cannot
3
agree upon which of the two Estimates most closely reflects
the Prevailing Market within 20 days after their appointment,
then, within 10 days after the expiration of such 20 day
period, the two appraisers shall select a third appraiser
meeting the aforementioned criteria. Once the third appraiser
(i.e. arbitrator) has been selected as provided for above,
then, as soon thereafter as practicable but in any case within
14 days, the arbitrator shall make his determination of which
of the two Estimates most closely reflects the Prevailing
Market rate and such Estimate shall be binding on both
Landlord and Tenant as the Base Rent rate for the Premises. If
the arbitrator believes that expert advice would materially
assist him, he may retain one or more qualified persons to
provide such expert advice. The parties shall share equally in
the costs of the arbitrator and of any experts retained by the
arbitrator. Any fees of any appraiser, counsel or experts
engaged directly by Landlord or Tenant, however, shall be
borne by the party retaining such appraiser, counsel or
expert.
(3) If the Prevailing Market rate has not been determined by the
commencement date of the Renewal Term, Tenant shall pay Base
Rent upon the terms and conditions in effect during the last
month of the initial Term for the Premises until such time as
the Prevailing Market rate has been determined. Upon such
determination, the Base Rent for the Premises shall be
retroactively adjusted to the commencement of the Renewal Term
for the Premises. If such adjustment results in an
underpayment of Base Rent by Tenant, Tenant shall pay Landlord
the amount of such underpayment within 30 days after the
determination thereof. If such adjustment results in an
overpayment of Base Rent by Tenant, Landlord shall credit such
overpayment against the next installment of Base Rent due
under the Lease and, to the extent necessary, any subsequent
installments, until the entire amount of such overpayment has
been credited against Base Rent.
3.05 Renewal Amendment. If Tenant is entitled to and properly exercises
its Renewal Option, Landlord shall prepare an amendment (the
"RENEWAL AMENDMENT") to reflect changes in the Base Rent, Term,
Termination Date and other appropriate terms. The Renewal Amendment
shall be sent to Tenant within a reasonable time after receipt of
the Binding Notice and Tenant shall execute and return the Renewal
Amendment to Landlord within 15 days after Tenant's receipt of same,
but, upon final determination of the Prevailing Market rate
applicable during the Renewal Term as described herein, an otherwise
valid exercise of the Renewal Option shall be fully effective
whether or not the Renewal Amendment is executed.
3.06 Prevailing Market. For purposes hereof, "Prevailing Market" shall
mean the arms length fair market annual rental rate per rentable
square foot under renewal leases and amendments entered into on or
about the date on which the Prevailing Market is being determined
hereunder for space comparable to the Premises in the Building and
office buildings comparable to the Building in the Seattle central
business district. The determination of Prevailing Market shall take
into account any material economic differences between the terms of
this Lease and any comparison lease or amendment, such as rent
abatements, improvement allowances, construction costs and other
concessions and the manner, if any, in which the landlord under any
such lease is reimbursed for operating expenses and taxes.
4. AUTOMATIC TELLER MACHINE. Tenant shall have the right, subject to
Landlord's prior written approval of the design and plans, to install an
automatic teller machine and night deposit (the "ATM") in the Building,
accessible from the exterior of the Building which ATM shall be subject to
all the terms and conditions of the Lease, except as noted below.
4.01 PREMISES. If and when the ATM is installed, the area designated for
the ATM (the "ATM AREA") shall be deemed to comprise a portion of
the Premises, as defined in the Lease, for the purposes of Tenants
insurance coverage and indemnity obligations.
4
4.02 PERMITTED USE. With respect to the ATM Area only, the Permitted Use,
as defined in the Lease, is modified to mean the operation of the
ATM: dispensing cash, processing withdrawals, deposits, transfers
and advances, facilitating inquiries and requests about a user's
account, and such other transactions as Tenant generally offers in
its ATM's, and for no other use or purpose whatsoever.
4.03 AS-IS CONDITION. Landlord leases the ATM Area to Tenant and Tenant
leases the ATM Area from Landlord in as-is condition and
configuration. Tenant agrees that Landlord has made no
representations or warranties about the ATM Area, including, but not
limited to representations about installation, signage, utility
connections and availability, and security.
4.04 CONSTRUCTION AND INSTALLATION. Tenant, at its expense, shall prepare
and deliver to Landlord for Landlord's approval 4 sets of final
plans and specifications for the installation and construction of
the ATM structure. Tenant shall revise the plans and specifications
in accordance with Landlord's requirements, and submit the plans and
specifications for Landlord's written approval after Landlord's
notice to Tenant of the results of Landlord's review. Signage for
the ATM, if any, shall be subject to Landlord's prior written
approval. Tenant's construction and installation shall be performed
in accordance with Laws. Tenant shall keep the ATM in good operating
order, and shall at all times keep the ATM and ATM Area in a neat,
clean and sanitary condition to the reasonable satisfaction of
Landlord.
4.05 OWNERSHIP OF IMPROVEMENTS; REPAIRS. All improvements to the ATM
structure(s) on the ATM Area shall be owned by Tenant. Tenant shall,
at its sole cost and expense, promptly perform all maintenance and
repairs to the ATM structure(s) and shall keep the same in good
condition and repair. Tenant shall not make alterations, additions
or improvements to the ATM Area without first obtaining the written
consent of Landlord in each instance, which consent may be withheld
at Landlord's sole and absolute discretion.
4.06 ASSIGNMENT AND SUBLETTING. Tenant shall not effect a Transfer of the
ATM Area separate or apart from the Transfer of the remainder of the
Premises, without the prior written consent of Landlord, which
consent may be withheld at Landlord's sole and absolute discretion.
4.07 SURRENDER. At the expiration or earlier termination of the Lease or
Tenant's right of possession, or in the event Tenant elects to
sooner surrender the ATM Area, Tenant, at Tenant's sole cost, shall
remove the ATM structure(s), its property and all other property
from the ATM Area, and quit and surrender the ATM Area to Landlord,
after first returning them to good order, condition and repair to
Landlord's reasonable satisfaction. If Tenant fails to do so within
30 days after written notice, Landlord may deem all or any part of
Tenant's Property to be abandoned, and title to Tenant's Property
shall be deemed to be immediately vested in Landlord.
5. OTHER BANKS ON THE MAIN (THIRD AVENUE LEVEL) FLOOR OF THE BUILDING.
5.01. To the extent Landlord is not prohibited by any existing or future
laws, ordinances, orders, rules and regulations of any governmental
agency, Landlord covenants not to enter into a lease or other
occupancy agreement (each an "OCCUPANCY AGREEMENT") for any other
space on the main (Third Avenue) floor of the Building with a
Competitor (as hereinafter defined) for a term scheduled to commence
during the Term, as the same may be extended, provided:
(1) Tenant is not in default under this Lease following written
notice and expiration of any applicable cure period;
(2) Tenant, i.e., EvergreenBank, or its Permitted Transferees and
successors under any Ownership Change (but not any other
successors or assigns) leases (which, for purposes of this
subsection (2) shall not include space subleased by Tenant to
any person or entity other than a Permitted Transferee or
successor under any Ownership Change) 7,588 rentable square
feet on the first floor of the Building;
5
(3) Tenant has not previously assigned its interest in this Lease,
other than pursuant to a Permitted Transfer or Ownership
Change; and
(4) Tenant or a Permitted Transferee or successor under any
Ownership Change operates a retail banking operation on the
main (Third Avenue) floor of the Building.
5.02 For purposes of this Section 5, a "COMPETITOR" shall mean any tenant
or occupant in the Building (i) whose Occupancy Agreement is entered
into after the date of this Lease and (ii) whose primary use is the
operation of a retail bank, if such retail bank will have banking
counters or teller windows for accepting deposits and loan payments
and cashing checks for retail banking customers on a walk-in basis
or whose primary use is a federally or state chartered retail bank,
savings and loan association, or credit union (the "SUBJECT PRIMARY
USE"). Competitor shall not in any event include: (a) a tenant open
for business on the date of this Lease or any assignee or sublessee
of any such tenant or any renewal or extension of the Occupancy
Agreement of such tenant who is permitted under such Occupancy
Agreement to use such premises for the Subject Primary Use; or (b) a
tenant whose Occupancy Agreement is entered into prior to the date
of this Lease or any assignee or sublessee of any such tenant or any
renewal or extension of the Occupancy Agreement of such tenant who
is permitted under such Occupancy Agreement to use such premises for
the Subject Primary Use, or (c) a tenant who has been permitted to
assume an Occupancy Agreement or otherwise operate its business in
the Building based upon or as a result of a bankruptcy, insolvency
or similar action or (d) any tenant (other than one engaged in the
Subject Primary Use) operating any ATM machine installed in the
Building (unless such tenant leases space on the main (Third Avenue)
floor of the Building and the tenant installs therein an ATM machine
which is "branded" (a "branded" ATM for the purposes of this
provision shall be an ATM which bears visible exterior
identification on the ATM of the banking or savings and loan
institution to whom the ATM belongs); or (e) any credit union
operations which are ancillary to other business operations of a
tenant in the Building.
6. RIGHT OF FIRST OFFER.
6.01 Grant of Option; Conditions. During the initial Term and Renewal
Term, if any, and subject to Section 6.06, below, Tenant shall have
a one-time right of first offer (the "RIGHT OF FIRST OFFER") with
respect to the approximately 18,000 rentable square feet known as
Suite 200 on the 2nd floor of the Building shown on the demising
plan attached hereto as EXHIBIT G (the "OFFERING SPACE"). Tenant's
Right of First Offer shall be exercised as follows: at any time
after Landlord has determined that the existing tenant in the
Offering Space will not extend or renew the term of its lease for
any portion of the Offering Space (but prior to leasing such portion
of the Offering Space to a party other than the existing tenant),
Landlord shall advise Tenant (the "ADVICE") of the terms under which
Landlord is prepared to lease such portion of the Offering Space
(which may be all of, or less than, the entire Offering Space) to
Tenant for the remainder of the Term, which terms shall reflect the
Prevailing Market (hereinafter defined) rate for such portion of the
Offering Space as reasonably determined by Landlord. Tenant may
lease the applicable portion of the Offering Space described in the
Advice in its entirety only, under such terms, by delivering written
notice of exercise to Landlord (the "NOTICE OF EXERCISE") within 5
Business Days after the date of the Advice, except that Tenant shall
have no such Right of First Offer and Landlord need not provide
Tenant with an Advice, if:
(1) Tenant is in default under the Lease beyond any applicable
cure periods at the time that Landlord would otherwise deliver
the Advice; or
(2) the Premises, or any portion thereof, is sublet (other than a
Permitted Transfer) at the time Landlord would otherwise
deliver the Advice; or
(3) the Lease has been assigned (other than a Permitted Transfer)
prior to the date Landlord would otherwise deliver the Advice;
or
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(4) Tenant is not occupying the Premises on the date Landlord
would otherwise deliver the Advice; or
(5) the Offering Space is not intended for the exclusive use of
Tenant; or
(6) the existing tenant in the Offering Space is interested in
extending or renewing its lease for the Offering Space or
entering into a new lease for such Offering Space.
6.02 Terms for Offering Space.
(1) The term for such portion of the Offering Space shall commence
upon the commencement date stated in the Advice and thereupon
such portion of the Offering Space shall be considered a part
of the Premises, provided that all of the terms stated in the
Advice shall govern Tenant's leasing of such portion of the
Offering Space, and, only to the extent that they do not
conflict with the Advice, the terms and conditions of this
Lease shall apply to such portion of the Offering Space.
(2) Tenant shall pay Rent and Additional Rent for such portion of
the Offering Space in accordance with the terms and conditions
of the Advice, which terms and conditions shall reflect the
Prevailing Market rate for such portion of the Offering Space
as determined in Landlord's reasonable judgment.
(3) The applicable portion of the Offering Space (including
improvements and personalty, if any) shall be accepted by
Tenant in its condition and as-built configuration existing on
the earlier of the date Tenant takes possession of such
portion of the Offering Space or as of the date the term for
such portion of the Offering Space commences, unless the
Advice specifies any work to be performed by Landlord in the
applicable portion of the Offering Space, in which case
Landlord shall perform such work in such portion of the
Offering Space. If Landlord is delayed delivering possession
of such portion of the Offering Space due to the holdover or
unlawful possession of such space by any party, Landlord shall
use reasonable efforts to obtain possession of the space, and
the commencement of the term for such portion of the Offering
Space shall be postponed until the date Landlord delivers
possession of such portion of the Offering Space to Tenant
free from occupancy by any party.
6.03 Termination of Right of First Offer. The rights of Tenant hereunder
with respect to the Offering Space shall terminate on the earlier
of: (a) the date occurring one (1) year before the scheduled
Termination Date (unless Tenant has exercised its Renewal Option, in
which event the date shall be one (1) year before the scheduled
expiration date of the Renewal Term); (b) Tenant's failure to
exercise its Right of First Offer within the 5 Business Day period
provided in Section 6.01 above; and (c) with respect to any portion
of the Offering Space, the date Landlord would have provided Tenant
an Advice if Tenant had not been in violation of one or more of the
conditions set forth in Section 6.01 above. In addition, if Landlord
provides Tenant with an Advice for any portion of the Offering Space
that contains expansion rights (whether such rights are described as
an expansion option, right of first refusal, right of first offer or
otherwise) with respect to any other portion of the Offering Space
(such other portion of the Offering Space subject to such expansion
rights is referred to herein as the "ENCUMBERED OFFERING SPACE") and
Tenant does not exercise its Right of First Offer to lease such
portion of the Offering Space described in the Advice, Tenant's
Right of First Offer with respect to the Encumbered Offering Space
shall be subject and subordinate to all such expansion rights
contained in the Advice.
6.04 Offering Amendment. If Tenant exercises its Right of First Offer,
Landlord shall prepare an amendment (the "OFFERING AMENDMENT")
adding the applicable portion of the Offering Space to the Premises
on the terms set forth in the Advice and reflecting the changes in
the Rent, rentable area of the Premises, Tenant's Pro Rata Share and
other appropriate terms. A copy of the Offering Amendment shall be
sent to Tenant within a reasonable time after Landlord's receipt of
the Notice of Exercise executed by Tenant, and Tenant shall execute
and return the
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Offering Amendment to Landlord within 15 days thereafter, but an
otherwise valid exercise of the Right of First Offer shall be fully
effective whether or not the Offering Amendment is executed.
6.05 Definition of Prevailing Market. For purposes of this Right of First
Offer provision, "Prevailing Market" shall mean the annual rental
rate per square foot for space comparable to the Offering Space in
the Building and office buildings comparable to the Building in the
Seattle central business district under leases and renewal and
expansion amendments being entered into at or about the time that
Prevailing Market is being determined, giving appropriate
consideration to tenant concessions, brokerage commissions, tenant
improvement allowances, existing improvements in the space in
question, and the method of allocating operating expenses and taxes.
Notwithstanding the foregoing, space leased under any of the
following circumstances shall not be considered to be comparable for
purposes hereof: (i) the lease term is for less than the lease term
of the Offering Space, (ii) the space is encumbered by the option
rights of another tenant, or (iii) the space has a lack of windows
and/or an awkward or unusual shape or configuration. The foregoing
is not intended to be an exclusive list of space that will not be
considered to be comparable.
6.06 Subordination. Notwithstanding anything herein to the contrary,
Tenant's Right of First Offer is subject and subordinate to the
expansion rights (whether such rights are designated as a right of
first offer, right of first refusal, expansion option or otherwise)
of any tenant of the Building existing on the date hereof.
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EXHIBIT G
OUTLINE AND LOCATION OF OFFERING SPACE
1
