EXHIBIT 10.15.1
1. BASIC LEASE TERMS
a. DATE OF LEASE: MARCH 5, 2001
b. TENANT: NEAH POWER SYSTEMS, INC., A WASHINGTON CORPORATION
Trade Name: NEAH POWER SYSTEMS, INC.
Address (Leased Premises): 00000 00XX XXXXXX XX, XXXXXXX, XX 00000
Building/Unit: G/142
Address (For Notices): 00000 00XX XXXXXX XX, XXXXX 000, XXXXXXX, XX
00000
c. LANDLORD: TEACHERS INSURANCE & ANNUITY ASSOCIATION OF AMERICA, INC.,
A NEW YORK CORPORATION
Address (For Notices): 00000 00XX XXXXXX XX, XXXXX 000, XXXXXXX, XX
00000 with a copy to such other place as Landlord may from time to time
designate by notice to Tenant.
d. TENANT'S USE OF PREMISES: COMPANY DEVELOPING A MINIATURIZED METHANOL
FUEL CELL AS A COMPATIBLE REPLACEMENT TO LITHIUM BATTERIES.
e. PREMISES AREA: An agreed 6,053 Rentable Square Feet
f. PROJECT AREA: An agreed 444,999 Rentable Square Feet
g. TERM OF LEASE: This Lease shall commence on SEPTEMBER 1, 2001 or such
earlier or later date as is provided in Section 3 (the "Commencement
Date"), and shall terminate on the last day of the SIXTIETH (60th) full
calendar month after the Commencement Date (the "Expiration Date").
h. BASE MONTHLY RENT (months refer to period through the applicable full
calendar month):
Commencement Date - Month 12 $9,080.00
Month 13 - Month 24 $9,584.00
Month 25 - Month 29 $10,088.00
Month 30 - Month 30 $0.00
Month 31 - Month 33 $10,088.00
Month 34 - Month 34 $0.00
Month 35 - Month 36 $10,088.00
Month 37 - Month 37 $10,593.00
Month 38 - Month 38 $0.00
Month 39 - Month 41 $10,593.00
Month 42 - Month 42 $0.00
Month 43 - Month 60 $10,593.00
i. PREPAID RENT (for months in addition to first month's rent): NA
j. LEASE CONSIDERATION: $41,362.00; see provision 30 of lease.
k. SECURITY DEPOSIT: $10,593.00 NON-REFUNDABLE CLEANING FEE: $303.00
l. BROKER(S): Xxxxxx's Broker XX XXXXX, XXXXXXXXX GROUP
Landlord's Broker Xxxxx Xxxxxxxx, CB Xxxxxxx Xxxxx
m. GUARANTOR(S):
n. Exhibits
Exhibit A - The Premises
Exhibit B - The Project
Exhibit C - Work Letter Agreement
Exhibit D - Rules and Regulations
Exhibit E - Tenant Sign Criteria
2. PREMISES/COMMON AREAS/PROJECT.
a. Premises. Landlord leases to Tenant the premises described in Section 1
and in Exhibit A (the "Premises"), located in this project described on Exhibit
B (the "Project"). By entry on the Premises, Xxxxxx acknowledges that it has
examined the Premises and accepts the Premises in their present condition,
subject to any Landlord's Work required under this Lease. Landlord's Work shall
consist of such work, if any, as is specifically identified as Landlord's
responsibility under Exhibit C. Unless otherwise identified in written notice
from Tenant to Landlord prior to the dates specified below, Landlord's Work
shall be deemed approved by Tenant in all respects on the earlier of (a) the
date Tenant commences construction or installation of any Tenant's Work, or (b)
the date Tenant begins to move its personal property into the Premises. Tenant
represents and warrants that it agrees with the square footage specified for the
Premises and the Project in Section 1 and will not hereafter challenge such
determination and agreement.
b. Common Areas. As used in this Lease, "Common Areas" shall mean all
portions of the Project not leased or demised for lease to specific tenants.
During the Lease Term, Tenant and its licensees, invitees, customers and
employees shall have the non-exclusive right to use the public portions of the
Common Areas, including all parking areas, landscaped areas, entrances, lobbies,
elevators, stairs, corridors, and public restrooms in common with Landlord,
other Project tenants and their respective licensees, invitees, customers and
employees. Landlord shall at all times have exclusive control and management of
the Common Areas and no diminution thereof shall be deemed a constructive or
actual eviction or entitle Tenant to compensation or a reduction or abatement of
rent. Landlord in its discretion may increase, decrease or change the number,
locations and dimensions of any Common Areas and other improvements shown on
Exhibit A which are not within the Premises.
c. Project. Landlord reserves the right in its sole discretion to modify
or alter the configuration or number of buildings in the Project, provided only
that upon such modification or alteration, the Project Area as set forth in
Section 1(f) shall be adjusted to reflect such modification or alteration.
3. TERM. The Commencement Date listed in Section 1 of this Lease
represents an estimate of the Commencement Date. This Lease shall commence on
the estimated Commencement Date if Landlord is able to deliver the Premises to
Tenant for the purpose of constructing tenant improvement work at least thirty
(30) days prior to the estimated Commencement Date. The parties acknowledge and
agree that it is unlikely the tenant improvement work described in the Work
Letter Agreement attached hereto will be complete by the Commencement Date, but
that nonetheless Tenant shall commence payment of rent as of the Commencement
Date, provided that Landlord has delivered the Premises to Tenant at least
thirty (30) days prior to said date. If Landlord fails to deliver the Premises
to Tenant thirty (30) days prior to the estimated Commencement Date, the
Commencement Date will be adjusted to that date which is the first to occur of
the following events (i) thirty (30) days following the actual date on which
Landlord delivers the Premises to Tenant, or (ii) the date on which Xxxxxx
commences to do business at the Premises. If this Commencement Date is later
than the Section 1 Commencement Date, this Lease shall not be void or voidable,
nor shall Landlord be liable to Tenant for any loss or damage resulting
therefrom. Landlord shall confirm the Commencement Date by written notice to
Tenant. This Lease shall be for a term ("Lease Term") beginning on the
Commencement Date and ending on the Expiration Date, unless extended or sooner
terminated in accordance with the terms of this Lease. All provisions of this
Lease, other than those relating to payment of Base Monthly Rent and Additional
Rent, shall become effective on the date that Tenant or its officers, agents,
employees or contractors is first present on the Premises for inspection,
construction or move in purposes. Notwithstanding anything in this Section 2 to
the contrary, if Xxxxxxxx is unable to deliver the Premises to Tenant on or
before November 30, 2001, Tenant may elect to cancel this Lease by providing
Landlord with notice of such cancellation on or before December 10, 2001. In the
event of such cancellation, any security deposit or other amounts paid by Tenant
to Landlord shall be returned to Tenant, without interest, and neither party
shall have any further rights or obligations whatsoever under this Lease.
4. RENT
a. Base Monthly Rent. Tenant shall pay Landlord monthly base rent in the
initial amount in Section 1 which shall be payable monthly in advance on the
first day of each and every calendar month ("Base Monthly Rent") provided,
however, the first month's Base Monthly Rent is due and payable upon execution
of this Lease. If the term of this Lease contains any rental abatement period,
Tenant hereby agrees that if Tenant breaches the Lease and fails
to cure such breach within the applicable cure period, if any, and/or abandons
the Premises before the end of the Lease term, or if Tenant's right to
possession is terminated by Landlord because of Tenant's breach of the Lease,
the rental abatement period shall be deemed extinguished, and there shall be
immediately due from Tenant to Landlord, in addition to any damages otherwise
due Landlord under the terms and conditions of the Lease, Base Monthly Rent
prorated for the entirety of the rental abatement period at the average Base
Monthly Rent for the Lease, plus any and all other charges (such as Expenses)
that were abated during such rental abatement period.
For purposes of Section 467 of the Internal Revenue Code, the parties
to this Lease hereby agree to allocate the stated Rents, provided herein, to the
periods which correspond to the actual Rent payments as provided under the terms
and conditions of this agreement.
b. Expenses. The purpose of this Section 4(b) is to ensure that Tenant
bears a share of all Expenses related to the use, maintenance, ownership, repair
or replacement, and insurance of the Project. Accordingly, beginning on the date
Tenant takes possession of the Premises, Tenant shall each month pay to Landlord
one-twelfth (1/12) of Tenant's Share of Expenses related to the Project. As used
in this Lease, "Tenant's Share" shall mean the Premises Area, as defined in
Section 1(e), divided by the Project Area, as defined in Section 1(f), and
"Tenant's Share of Expenses" shall mean the total Expenses for the Project for
the applicable calendar year multiplied by Xxxxxx's Share. Landlord may
specially allocate individual expenses where and in the manner necessary, in
Xxxxxxxx's discretion, to appropriately reflect the consumption of the expense
or service. For example where some but not all premises in the Project have
HVAC, Landlord may reallocate Project Expenses for HVAC to all premises
utilizing HVAC to be apportioned on a per square foot basis, or could allocate
to each premises utilizing HVAC the cost of maintaining that space's individual
unit. In the event the average occupancy level of the Project for any year is
less than ninety five percent (95%), the actual Expenses for such year shall be
proportionately adjusted to reflect those costs which Landlord estimates would
have been incurred, had the Project been ninety five percent (95%) occupied
during such year.
1) Expenses Defined. The term "Expenses" shall mean all costs and
expenses of the ownership, operation, maintenance, repair or replacement, and
insurance of the Project, including without limitation, the following costs:
(a) All supplies, materials, labor, equipment, and
utilities used in or related to the operation and maintenance
of the Project,
(b) All maintenance, janitorial, legal, accounting,
insurance, service agreement and management (including on-site
management office) costs related to operation and maintenance
of the Project;
(c) All maintenance, replacement and repair costs
relating to the areas within or around the Project, including,
without limitation, air conditioning systems, sidewalks,
landscaping, service areas, driveways, parking Areas
(including resurfacing and restriping parking areas),
walkways, building exteriors (including painting), signs and
directories, repairing and replacing roofs, walls, etc. These
costs may be included either based on actual expenditures or
the use of an accounting reserve based on past cost experience
for the Project. The cost of any repairs or replacements
which, under generally accepted accounting principles, would
be capitalized, shall be amortized on a straight-line basis
and taken as Expenses over the useful life of the item in
question.
(d) Amortization (along with reasonable financing
charges) of capital additions or improvements made to the
Project which may be required by any government authority or
which will improve the operating efficiency of the Project
(provided, however, that the amount of such amortization for
improvements not mandated by government authority shall not
exceed in any year the amount of costs reasonably determined
by Landlord in its sole discretion to have been saved by the
expenditure either through the reduction or minimization of
increases which would have otherwise occurred).
(e) Real Property Taxes including all taxes, assessments
(general and special) and other impositions or charges which
may be taxed, charged, levied, assessed or imposed upon all or
any portion of or in relation to the Project or any portion
thereof, any leasehold estate in the Premises
or measured by Rent from the Premises, including any increase
caused by the transfer, sale or encumbrance of the Project or
any portion thereof. "Real Property Taxes" shall also include
any form of assessment, levy, penalty, charge or tax (other
than estate, inheritance, net income, or franchise taxes)
imposed by any authority having a direct or indirect power to
tax or charge, including, without limitation, any city,
county, state federal or any improvement or other district,
whether such tax is (1) determined by the value of the Project
or the Rent or other sums payable under this Lease; (2) upon
or with respect to any legal or equitable interest of Landlord
in the Project or any part thereof; (3) upon this transaction
or any document to which Tenant is a party creating a transfer
in any interest in the Project, (4) in lieu of or as a direct
substitute in whole or in part of or in addition to any real
property taxes on the Project, (5) based on any parking spaces
or parking facilities provided in the Project, 6) in
consideration for services, such as police protection, fire
protection, street, sidewalk and roadway maintenance, refuse
removal or other services that may be provided by any
governmental or quasi-governmental agency from time to time
which were formerly provided without charge or with less
charge to property owners or occupants, or (7) otherwise based
on the operation of the Project (such as transit, carpooling
or environmental facilities.
(f) Landlord agrees that Expenses as defined in Section
4(b) shall not include leasing commissions; payments of
principal and interest on any mortgages, deeds of trust or
other encumbrances upon the Project; depreciation of the
capital cost of capital additions or improvements except as
provided at 4(b)(1)(d); Landlord's executive salaries,
management fees in excess of market rates; costs resulting
from defective design or construction of the Project; costs
incurred in connection with entering into new leases; or costs
of disputes under existing leases. In no event shall Expenses
include any charge for which Landlord receives reimbursement
from insurance or from another Tenant, nor shall any item of
Expense be counted more than once, nor shall Landlord collect
more than one hundred percent (100%) of Expenses.
2) Annual Estimate of Expenses. When Xxxxxx takes possession of
the Premises, Landlord shall estimate Tenant's Share of Expenses for the
remainder of the calendar year, and at the commencement of each calendar year
thereafter, Landlord shall provide Tenant with an estimate of Xxxxxx's Share of
Expenses for the ensuing calendar year.
3) Monthly Payment of Expenses. Tenant shall pay to Landlord,
monthly in advance, as Additional Rent, one-twelfth (1/12) of the Annual
Estimate of Xxxxxx's Share of Expenses beginning on the date Tenant takes
possession of the Premises. As soon as practical following each calendar year,
Landlord shall prepare an accounting of actual Expenses incurred during the
prior calendar year and such accounting shall reflect Tenant's Share of
Expenses. If the Additional Rent paid by Tenant under this Section 4(b)(3)
during the preceding calendar year was less than the actual amount of Tenant's
Share of Expenses, Landlord shall so notify Tenant and Tenant shall pay such
amount to Landlord within 30 days of receipt of such notice. Such amount shall
be deemed to have accrued during the prior calendar year and shall be due and
payable from Tenant even though the term of this Lease has expired or this Lease
has been terminated prior to Xxxxxx's receipt of this notice. Tenant shall have
thirty (30) days from receipt of such notice to contest the amount due, failure
to so notify Landlord shall represent final determination of Tenant's Share of
Expenses. If Tenant's payments were greater than the actual amount, then such
overpayment shall be credited by Landlord to Tenant's Share of Expenses due
under this Section 4(b)(3).
4) Rent Without Offset and Late Charge. As used herein, "Rent"
shall mean all monetary sums due from Tenant to Landlord. All Base Monthly Rent
shall be paid by Tenant to Landlord without prior notice or demand in advance on
the first day of every calendar month, at the address shown in Section 1, or
such other place as Landlord may designate in writing from time to time. Whether
or not so designated, all other sums due from Tenant under this Lease shall
constitute Additional Rent, payable without prior notice or demand when
specified in this Lease, but if not specified, then within ten (10) days of
demand. All Rent shall be paid without any deduction or offset whatsoever. All
Rent shall be paid in lawful currency of the United States of America. Proration
of Rent due for any partial month shall be calculated by dividing the number of
days in the month for which Rent is due by the actual number of days in that
month and multiplying by the applicable monthly rate. Tenant acknowledges that
late payment by Tenant to Landlord of any Rent or other sums due under this
Lease will cause Landlord to incur costs not contemplated by this Lease, the
exact amount of such cost being extremely difficult and impracticable to
ascertain. Such costs include, without limitation,-processing and -accounting
-charges aid late charges that may be imposed on Landlord by the terms of any
encumbrance or note secured by the Premises. Therefore, if any Rent or other sum
due from Tenant is not received when due, Tenant shall pay to Landlord an
additional sum equal to 10% of such overdue payment. Landlord and Tenant hereby
agree that such late charge represents a fair and reasonable estimate of the
costs that Landlord will incur by reason of any such late payment and that the
late charge is in addition to any and all remedies available to the Landlord and
that the assessment and/or collection of the late charge shall not be deemed a
waiver of any other default. Additionally, all such delinquent Rent or other
sums, plus this late charge, shall bear interest at the rate of 18 percent per
annum. If the interest rate specified in this Lease is higher than the rate
permitted by law, the interest rate is hereby decreased to the maximum legal
interest rate permitted by law. Any payments of any kind returned for
insufficient funds will be subject to an additional handling charge of $25.00,
and thereafter, Landlord may require Tenant to pay all future payments of Rent
or other sums due by money order or cashier's check.
5 PREPAID RENT. Upon the execution of this Lease, Tenant shall, in
addition to the payment of the first month's Rent as set forth in Section 4(a),
pay to Landlord the prepaid Rent set forth in Section 1(i), and if Tenant is not
in default of any provisions of this Lease, such prepaid Rent shall be applied
toward Base Monthly Rent for the months set forth in Section 1(i). Landlord's
obligations with respect to the prepaid Rent are those of a debtor and not of a
trustee, and Landlord can commingle the prepaid Rent with Landlord's general
funds. Landlord shall not be required to pay Tenant interest on the prepaid
Rent. Landlord shall be entitled to immediately endorse and cash Xxxxxx's
prepaid Rent; however, such endorsement and cashing shall not constitute
Landlord's acceptance of this Lease. In the event Landlord does not accept this
Lease, Landlord shall return said prepaid Rent.
6. DEPOSIT. Upon execution of this Lease, Tenant shall deposit a security
deposit and a cleaning fee as set forth in Section 1(j) with Landlord. If twice
within any 12 month period, late charges are assessed against Tenant by
Landlord, Landlord may, by written notice to Tenant, require Tenant to pay
Landlord an amount equal to one month's Base Rent as an increase in the Security
Deposit, which additional amount shall be due within 5 days after Xxxxxx's
receipt of the notice. If Tenant is in default, Landlord can use the Security
Deposit or any portion of it to cure the default or to compensate Landlord for
any damages sustained by Landlord resulting from Xxxxxx's default. Upon demand,
Xxxxxx shall immediately pay to Landlord a sum equal to the portion of the
Security Deposit expended or applied by Landlord to restore the Security Deposit
to its full amount. In no event will Tenant have the right to apply any part of
the Security Deposit to any Rent or other sums due under this Lease. If Landlord
transfers its interest in the Premises, Landlord shall transfer the Security
Deposit to its successor in interest, whereupon Landlord shall be automatically
released from any liability for the return of the Security Deposit. If, at the
end of the Lease Term, Xxxxxx has fully complied with all obligations under this
Lease, then the remaining Security Deposit shall be returned to Tenant after
Landlord has verified that Tenant has fully vacated the Premises, removed all of
its property and surrendered the Premises in the condition required under this
Lease; provided that Landlord may hold back a portion of the Security Deposit
until final determination of Tenant's share of Common Expenses, whereupon a
final adjustment shall be made and any remaining Security Deposit shall be
returned to Tenant. The Non-Refundable Cleaning Fee shall be retained by
Landlord. Landlord's obligations with respect to the Security Deposit are those
of a debtor and not of a trustee, and Landlord can commingle the Security
Deposit with Landlord's general funds. Landlord shall not be required to pay
Tenant interest on the deposit. Each time the Base Monthly Rent is increased,
Tenant shall deposit additional funds with Landlord sum sufficient to increase
the Security Deposit to an amount which bears the same relationship to the
adjusted Base Monthly Rent as the initial Security Deposit bore to the initial
Base Monthly Rent.
7. USE OF PREMISES AND PROJECT FACILITIES. Tenant shall use the Premises
solely for the purposes set forth in Section 1 and for no other purpose
whatsoever without obtaining the prior written consent of Landlord which shall
not be unreasonably withheld for uses consistent with the then Project
standards. Tenant acknowledges that neither Landlord nor any agent of Landlord
has made any representation or warranty with respect to the Premises or with
respect to the suitability of the Premises or the Project for the conduct of
Tenant's business, nor has Landlord agreed to undertake any modification,
alteration or improvement to the Premises or the Project, except as provided in
writing in this Lease. Tenant acknowledges that Landlord may from time to time,
at its sole discretion, make such modifications, alterations, deletions or
improvements to the Project as Landlord may deem necessary or desirable, without
compensation or notice to Tenant. Tenant shall promptly comply with all laws,
ordinances, orders and regulations affecting the Premises and the Project,
including, without limitation, the rules and regulations attached hereto as
Exhibit D and any reasonable modifications to these rules and regulations as
Landlord
may adopt from time to time. Tenant acknowledges that, except for Landlord's
obligations pursuant to Section 13, Tenant is solely responsible for ensuring
that the Premises comply with any and all governmental regulations applicable to
Tenant's conduct of business on the Premises, and that Tenant is solely
responsible for any alterations or improvements that may be required by such
regulations, now existing or hereafter adopted. Tenant shall not do or permit
anything to be done in or about the Premises or bring or keep anything in the
Premises. that will in any way increase the premiums paid by Landlord on its
insurance related to the Projector which will in any way increase the premiums
for fire or casualty insurance carried by other tenants in the Project. Tenant
will not perform any act or carry on any practices that may injure the Premises
or the Project; that may be a nuisance or menace to other tenants in the
Project; or that shall in any way interfere with the quiet enjoyment of such
other tenants. Tenant shall not use the Premises for sleeping, washing clothes,
cooking or the preparation, manufacture or mixing of anything that might emit
any objectionable odor, noises, vibrations or lights onto such other tenants. If
sound insulation is required to muffle noise produced by Tenant on the Premises,
Tenant at its own cost shall provide all necessary insulation. Tenant shall not
do anything on the premises which will overload any existing parking or service
to the Premises. Pets and/or animals of any type shall not be kept on the
Premises.
8. HAZARDOUS SUBSTANCES; DISRUPTIVE ACTIVITIES
a. HAZARDOUS SUBSTANCES.
(1) PRESENCE AND USE OF HAZARDOUS SUBSTANCES. As used in this
Lease, "Hazardous Substances" shall mean anything which may be harmful to
persons or property, including, but not limited to, materials designated as a
"Hazardous Substance" pursuant to Section 101 of the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as now or hereafter amended,
42 USC 9601, ET SEQ., or as a Hazardous Substance, Hazardous Household
Substance, Moderate Risk Waste or Hazardous Waste under RCW 70.105.010, or which
is regulated by any federal, state, or local law, statute, ordinance or
regulation pertaining to health, industrial hygiene or the environment. Except
for those Substances listed on Exhibit F, Tenant shall not, without Landlord's
prior written consent, keep on or around the Premises, Common Areas or Building,
for use, disposal, treatment, generation, storage or sale, any Hazardous
Substances except such Hazardous Substances as are commonly used in general
administrative office operations. With respect to any Hazardous Substances which
Tenant keeps on or around the Premises, Tenant shall:
(i) Comply promptly, timely, and completely with
all governmental requirements for reporting, keeping, and submitting manifests,
and obtaining and keeping current identification numbers;
(ii) Submit to Landlord true and correct copies
of all reports, manifests, and identification numbers at the same time as they
are required to be and/or are submitted to the appropriate governmental
authorities;
(iii) Within five (5) days of Landlord's request,
submit written reports to Landlord regarding Tenant's use, storage, treatment,
transportation, generation, disposal or sale of Hazardous Substances and provide
evidence satisfactory to Landlord of Tenant's compliance with the applicable
government regulations;
(iv) Allow Landlord or Landlord's agent or
representative to come on the premises with commercially reasonable notice
except in the case of an emergency whereby no notice shall be required to check
Tenant's compliance with all applicable governmental regulations regarding
Hazardous Substances;
(v) Comply with minimum levels, standards or
other performance standards or requirements which may be set forth or
established for certain Hazardous Substances (if minimum standards or levels are
applicable to Hazardous Substances present on the Premises, such levels or
standards shall be established by an on-site inspection by the appropriate
governmental authorities and shall be set forth in an addendum to this Lease);
and
(vi) Comply with all applicable governmental
rules, regulations and requirements regarding the proper and lawful use, sale,
transportation, generation, treatment, and disposal of Hazardous Substances.
(2) Any and all costs incurred by Landlord and associated with
Xxxxxxxx's monitoring of Tenant's compliance, where Landlord has commercially
reasonable cause to believe Tenant is not compliant with this Section 8,
including actual reasonable Landlord's attorneys' fees and costs, shall be
Additional Rent and shall be due and payable to Landlord immediately upon demand
by Landlord.
b. CLEANUP COSTS, DEFAULT AND INDEMNIFICATION.
(1) Tenant shall be fully and completely liable to Landlord for
any and all cleanup costs, and any and all other charges, fees, penalties (civil
and criminal) imposed by any governmental authority with respect to Tenant's
use, disposal, transportation, generation and/or sale of Hazardous Substances,
in or about the Premises, Common Areas, or Building.
(2) Tenant shall indemnify, defend and save Landlord and
Xxxxxxxx's lender, if any, harmless from any and all of the costs, fees,
penalties and charges assessed against or imposed upon Landlord (as well as
Xxxxxxxx's and Landlord's lender's attorneys' fees and costs) as a result of
Tenant's use, disposal, transportation, generation and/or sale of Hazardous
Substances.
(3) Upon Tenant's default under this Section 8, in addition to the
rights and remedies set forth elsewhere in this Lease, Landlord shall be
entitled to the following rights and remedies:
(i) At Landlord's option, to terminate this
Lease immediately; and/or
(ii) To recover any and all damages associated
with the default, including, but not limited to cleanup costs and charges, civil
and criminal penalties and fees, loss of business and sales by Landlord and
other tenants of the Building, any and all damages and claims asserted by third
parties and Xxxxxxxx's attorneys' fees and costs.
LANDLORD'S REPRESENTATIONS REGARDING HAZARDOUS WASTE. To the best of Landlord's
actual knowledge, no Hazardous Substances are or have been in the past
generated, treated, stored or discharged on or at the Premises or Building
except in accordance with applicable laws. Landlord shall be solely responsible,
at Landlord's expense, for remediating any Hazardous Substances present in the
Building as of the Commencement Date that are in violation of any federal, state
or local building law as then in effect and interpreted and shall be responsible
at its expense for defending any governmental action alleging such violation
(provided that this obligation shall not apply to any substances introduced to
the Building by Tenant, its agents, employees or contractors).
c. DISPOSAL OF WASTE
(1) Refuse Disposal. Tenant shall not keep any trash, garbage,
waste or other refuse on the Premises except in sanitary containers and shall
regularly and frequently remove same from the Premises. Tenant shall keep all
incinerators, containers or other equipment used for storage or disposal of such
materials in a clean and sanitary condition.
(2) Sewage Disposal. Tenant shall properly dispose of all sanitary
sewage and shall not use the sewage disposal system (a) for the disposal of
anything except sanitary sewage or (b) in excess of the lesser amount (i)
reasonably contemplated by the uses permitted under this Lease or (ii) permitted
by any governmental entity. Tenant shall keep the sewage disposal system free of
all obstructions and in good operating condition.
(3) Disposal of Other Waste. Tenant shall properly dispose of all
other waste or other matter delivered to, stored upon, located upon or within,
used on, or removed from, the Premises in such a manner that it does not, and
will not, adversely affect the (a) health or safety of persons, wherever
located, whether on the Premises or elsewhere (b) condition, use or enjoyment of
the Premises or any other real or personal property, wherever located, whether
on the Premises or anywhere else, or (c) Premises or any of the improvements
thereto or thereon including buildings, foundations, pipes, utility lines,
landscaping or parking areas.
d. DISRUPTIVE ACTIVITIES. Tenant shall not:
(1) Produce, or permit to be produced, any intense glare, light or
heat except within an enclosed or screened area and then only in such manner
that the glare, light or heat shall not, outside the Premises, be materially
different that the light or heat from other sources outside the Premises;
(2) Create, or permit to be created, any sound pressure level
which will interfere with the quiet enjoyment of any real property outside the
Premises, or which will create a nuisance or violate any governmental law, rule,
regulation or requirement;
(3) Create, or permit to be created, any ground vibration that is
materially discernible outside the Premises;
(4) Transmit, receive or permit to be transmitted or received, any
electromagnetic, microwave or other radiation which is harmful or hazardous to
any person or property in, or about the Project; or
(5) Create, or permit to be created, any noxious odor that is
disruptive to the business operations of any other tenant in the Project.
9. SIGNAGE. All signing shall comply with rules and regulations set forth
by Landlord as may be modified from time to time. Current rules and regulations
relating to signs are described on Exhibit E. Tenant shall place no window
covering (e.g., shades, blinds, curtains, drapes, screens, or tinting
materials), stickers, signs, lettering, banners or advertising or display
material on or near exterior windows or doors if such materials are visible from
the exterior of the Premises, without Landlord's prior written consent.
Similarly, Tenant may not install any alarm boxes, foil protection tape or other
security equipment on the Premises without Landlord's prior written consent. Any
material violating this provision may be destroyed by Landlord without
compensation to Tenant.
10. PERSONAL PROPERTY TAXES. Tenant shall pay before delinquency all taxes,
assessments, license fees and public charges levied, assessed or imposed upon
its business operations as well as upon all trade fixtures, leasehold
improvements, merchandise and other personal property in or about the Premises.
11. PARKING. Landlord grants to Tenant and Tenant's customers, suppliers,
employees and invitees, a non-exclusive license to use the designated parking
areas in the Project for the use of motor vehicles during the term of this
Lease. Landlord reserves the right at any time to grant similar non-exclusive
use to other tenants, to promulgate rules and regulations relating to the use of
such parking areas, including reasonable restrictions on parking by tenants and
employees, to designate specific spaces for the use of any tenant, to make
changes in the parking layout from time to time, and to establish reasonable
time limits on parking. Overnight parking is prohibited and any vehicle
violating this or any other vehicle regulation adopted by Landlord is subject to
removal at the owner's expense.
12. UTILITIES; SERVICES.
Landlord shall furnish the Premises with electricity for office use, including
lighting and low power usage for office machines and water for restroom
facilities. Landlord shall furnish the Premises with heat and air conditioning
services as required, in Landlord's judgment, for the comfortable use and
occupancy of the Premises. Landlord shall provide further services (such as
janitorial services and trash disposal) if Landlord and Tenant specifically
agree to such additional services and identify such services with specificity on
Exhibit F hereto.
The mechanical system is designed to accommodate heating loads generated by the
types and quantities of lights and equipment commonly found in suburban office
park general administrative offices. Before installing lights and equipment in
the Premises which in the aggregate exceed such amount (e.g. devoting the
Premises to high density computer work station operations) or require a voltage
other than 120 volts single phase, Tenant shall obtain the written permission of
Landlord. Landlord may refuse to grant such permission unless Xxxxxx agrees to
pay Landlord's costs of installing any supplementary air conditioning or
electrical systems required by such equipment or lights. In addition, Tenant
shall pay Landlord in advance, as additional rent, on the first day of each
month during the Term, the amount estimated by Landlord as the cost of
furnishing electricity for the operation of such equipment or
lights and the amount estimated by Landlord as the cost of operating and
maintaining supplementary air conditioning units necessitated by Tenant's use of
such equipment or lights. Landlord shall be entitled to install and operate, at
Tenant's cost, a monitoring/metering system in the Premises to measure the added
demands on electricity and the HVAC systems resulting from such equipment and
lights, and from Tenant's HVAC requirements during other than Normal Business
Hours. Tenant shall comply with Xxxxxxxx's instruction for the use of drapes,
blinds and thermostats. Tenant acknowledges that Landlord shall have sole
control over the determination of what utility providers serve the Project, and
Landlord shall have no obligation to give access or easement rights or otherwise
allow onto the Project any utility providers except those approved by Landlord
in its discretion. . If, for any reason, Landlord permits Tenant to purchase
utility services from a provider other than Landlord's designated compan(ies),
such provider shall be considered a contractor of Tenant and Tenant shall
indemnify defend and hold Landlord harmless from such provider's acts and
omissions while in, or in connection with their services to, the Building or
Project in accordance with the terms and conditions of Article 15. In addition,
Tenant shall allow Landlord to purchase such utility service from Tenant's
provider at Tenant's rate or at such lower rate as can be negotiated by the
aggregation of Landlord's tenants' requirements for such utility.
Except for the costs of above-building standard and/or after-hours services,
which shall be paid directly by Tenant, the costs of all utilities and services
provided pursuant to this Section 12 shall be Expenses allocated to Tenant as
part of Tenant's Share of Expenses pursuant to Section 4(b). above. Tenant shall
pay when due and directly to the service provider any telephone or other
services metered, chargeable or provided to the Premises and not charged as part
of Tenant's Share of Expenses.
Landlord does not warrant that any utilities or services will be free from
interruption including by reason of accident, repairs, alterations or
improvements and including by reason of computer programming weaknesses known
generally as the "Year 2000" problem. No utility interruption shall be deemed an
eviction or disturbance of Tenant, or render Landlord liable to Tenant for
damages, or relieve Tenant from the full and complete performance of all of
Tenant's obligations under this Lease.
Landlord shall provide such security for the Project as it deems appropriate.
During other than Normal Business Hours, Landlord may restrict access to the
Project in accordance with the Project's security system. Landlord shall not be
liable to Tenant for injury to its agents, employees, customers or invitees, or
for losses due to theft or burglary, or for damages done by unauthorized persons
in the Project.
Landlord shall provide two keys for the corridor door entering the Premises, and
additional keys at a charge by Landlord on an order signed by Tenant. All such
keys shall remain the property of Landlord. No additional locks shall be allowed
on any door of the Premises without Landlord's written permission, and Tenant
shall not make, or permit to be made, any duplicate keys, except those furnished
by Landlord. Upon termination of this Lease, Xxxxxx shall surrender to Landlord
all keys to the Premises.
13. MAINTENANCE. Landlord shall maintain, in good condition, the structural
parts of the Premises, which shall include only the foundations, bearing and
exterior walls (excluding glass), subflooring and roof (excluding skylights),
the unexposed electrical, plumbing and sewerage systems, including those
portions of the systems lying outside the Premises, gutters and downspouts on
the Building and the heating, ventilating and air conditioning system servicing
the Premises; provided, however, the cost of all such maintenance shall be
considered "Expenses" for purposes of Section 4(b). Except as provided above,
Tenant shall maintain and repair the Premises in good condition, including,
without limitation, maintaining and repairing all walls, storefronts, floors,
ceilings, interior and exterior doors, exterior and interior windows and
fixtures and interior plumbing as well as damage caused by Tenant, its agents,
employees or invitees. Upon expiration or termination of this Lease, Xxxxxx
shall surrender the Premises to Landlord in the same condition as existed at the
commencement of the term, except for reasonable wear and tear or damage caused
by fire or other casualty for which Xxxxxxxx has received all funds necessary
for restoration of the Premises from insurance proceeds.
14. ALTERATIONS. Tenant shall not make any alterations to the Premises, or
to the Project, including any changes to the existing landscaping, without
Landlord's prior written consent. If Landlord gives its consent to alterations,
Landlord may post notices in-accordance with the laws of the state in which the
premises are located. Any alterations, excluding specific trade fixtures which
Landlord has previously approved in writing, made shall remain on and be
surrendered with the Premises upon expiration or termination of this Lease,
except that Landlord may, at the time of written consent, elect to require
Tenant to remove any alterations which Tenant may have made to the Premises. If
Landlord so elects, at its own cost Tenant shall restore the Premises to the
condition designated by Landlord in its election, before the last day of the
term.
Should Landlord consent in writing to Tenant's alteration of the Premises,
Tenant shall contract with a contractor approved by Landlord for the
construction of such alterations, shall secure all appropriate governmental
approvals and permits, and shall complete such alterations with due diligence in
compliance with plans and -specifications approved by Landlord. All such
construction shall be performed in a manner which will not interfere with the
quiet enjoyment of other tenants of the Project. Tenant shall pay all costs for
such construction and shall keep the Premises and the Project free and clear of
all mechanics' liens which may result from construction by Tenant. Tenant shall
not use any portion of the common areas in connection with an alteration without
the prior written consent of Landlord.
15. RELEASE AND INDEMNITY.
a. Indemnity. Tenant shall indemnify, defend (using legal counsel
acceptable to Landlord) and save Landlord and its property manager harmless from
all claims, suits, losses, damages, fines, penalties, liabilities and expenses
(including Landlord's personnel and overhead costs and attorneys fees and other
costs incurred in connection with claims, regardless of whether such claims
involve litigation) resulting from any actual or alleged injury (including
death) of any person or from any actual or alleged loss of or damage to, any
property arising out of or in connection with (i) Tenant's occupation, use or
improvement of the Premises, or that of its employees, agents or contractors,
(ii) Tenant's breach of its obligations hereunder, or (iii) any act or omission
of Tenant or any subtenant, licensee, assignee or concessionaire of Tenant, or
of any officer, agent, employee, guest or invitee of Tenant, or of any such
entity in or about the Premises. Xxxxxx agrees that the foregoing indemnity
specifically covers actions brought by its own employees. This indemnity with
respect to acts or omissions during the terra of this Lease shall survive
termination or expiration of this Lease. The foregoing indemnity is specifically
and expressly intended to, constitute a waiver of Tenant's immunity under
Washington's Industrial Insurance Act, RCW Title 51, to the extent necessary to
provide Landlord with a full and complete indemnity from claims made by Tenant
and its employees, to the extent provided herein. Tenant shall promptly notify
Landlord of casualties or accidents occurring in or about the Premises. XXXXXXXX
AND TENANT ACKNOWLEDGE THAT THE INDEMNIFICATION PROVISIONS OF SECTION 8 AND THIS
SECTION 15 WERE SPECIFICALLY NEGOTIATED AND AGREED UPON BY THEM.
b. Release. Tenant hereby fully and completely waives and releases all
claims against Landlord for any losses or other damages sustained by Tenant or
any person claiming through Tenant resulting from any accident or occurrence in
or upon the Premises, including but not limited to: any defect in or failure of
Project equipment; any failure to make repairs; any defect, failure, surge in,
or interruption of Project facilities or services; any defect in or failure of
Common Areas; broken glass; water leakage; the collapse of any Building
component; or any act, omission or negligence of co-tenants, licensees or any
other persons or occupants of the Building, provided only that the release
contained in this Section 15(b) shall not apply to claims for actual damage to
persons or property (excluding consequential damages such as lost profits)
resulting directly from Xxxxxxxx's breach of its express obligations under this
Lease which Landlord has not cured within a reasonable time after receipt of
written notice of such breach from Tenant. Notwithstanding any other provision
of this Lease, and to the fullest extent permitted by law, Tenant hereby agrees
that Landlord shall not be liable for injury to Tenant's business or any loss of
income therefrom, whether such injury or loss results from conditions arising
upon the Premises or the Project, or from other sources or places including,
without limitation, any interruption of services and utilities or any casualty,
or from any cause whatsoever, including, Landlord's negligence, and regardless
of whether the cause of such injury or loss or the means of repairing the same
is inaccessible to Landlord or Tenant. Tenant may elect, at its sole cost and
expense, to obtain business interruption insurance with respect to such
potential injury or loss.
c. Limitation on Indemnity. In compliance with RCW 4.24.115 as in effect
on the date of this Lease, all provisions of this Lease pursuant to which
Landlord or Tenant (the "Indemnitor") agrees to indemnify the other (the
"Indemnitee") against liability for damages arising out of bodily injury to
Persons or damage to property relative to the construction, alteration, repair,
addition to, subtraction from, improvement to, or maintenance of, any building,
road, or other structure, project, development, or improvement attached to real
estate, including the Premises, (i) shall not apply to damages caused by or
resulting from the sole negligence of the Indemnitee, its agents or employees,
and (ii) to the extent caused by or resulting from the concurrent negligence of
(a) the Indemnitee or the Indemnitee's agents or employees, and (b) the
Indemnitor or the Indemnitor's agents or employees, shall apply only to the
extent of the Indemnitor's negligence; PROVIDED, HOWEVER, the limitations on
indemnity set forth in this Section shall automatically and without further act
by either Landlord or Tenant be deemed amended so as to remove any of the
restrictions contained in this Section no longer required by then applicable
law.
d. Definitions. As used in any Section establishing indemnity or release
of Landlord, "Landlord" shall include Landlord, its partners, officers, agents,
employees and contractors, and "Tenant" shall include Tenant and any person or
entity claiming through Tenant.
16. INSURANCE. Tenant shall, throughout the term of this Lease and any
renewal hereof, at its own expense, keep and maintain in full force and effect,
a policy of commercial general liability (occurrence form) insurance, including
contractual liability (including Tenant's indemnification obligations under this
Lease) insuring Tenant's activities upon, in or about the Premises or the
Project, against claims of bodily injury or death or property damage or loss
with a combined single limit of not less than One Million Dollars ($1,000,000)
per occurrence and an excess/umbrella liability insurance policy with minimum
limits of not less than Two Million Dollars ($2,000,000), with such increases in
limits as Landlord may from time to time require consistent with insurance
requirements of institutional landlords in similar projects in the area. If
Tenant manufactures on the Premises consumer goods using any materials supplied
by Landlord (including but not limited to water supplied as part of utilities to
the Premises), Tenant's insurance shall include products liability insurance in
the amounts specified for the commercial general liability insurance.
Tenant shall further, throughout the term of this Lease and any renewal thereof,
at its own expense, keep and maintain in full force and effect, what is commonly
referred to as "Special Cause of Loss" or "Special" coverage insurance
(excluding earthquake and flood) on tenant's leasehold improvements in an amount
equal to one hundred percent (100%) of the replacement value thereof with a
coinsurance waiver. The proceeds from any such policy shall be used by Tenant
for the restoration of Tenant's improvements or alterations. As used in this
Lease, "tenant's leasehold improvements" shall mean any alterations, additions
or improvements installed in or about the Premises by or with Landlord's
permission or otherwise permitted by this Lease, whether or not the cost thereof
was paid for by Xxxxxx.
All insurance required to be provided by Tenant under this Lease: (a) shall be
issued by Insurance companies authorized to do business in the state in which
the premises are located with a financial rating of at least an A+X status as
rated in the most recent edition of Best's Insurance Reports; (b) shall be
issued as a primary policy; shall be on an occurrence basis; (c) name Landlord
and Landlord's property manager as additional insured; and (d) shall contain an
endorsement requiring at least 30 days prior written notice of cancellation to
Landlord and Landlord's lender, before cancellation or change in coverage, scope
or amount of any policy. Tenant shall deliver a certificate or copy of such
policy together with evidence of payment of all current premiums to Landlord
within 30 days of execution of this Lease and at the time of all renewals
thereof. If Tenant fails at any time to maintain the insurance required by this
Lease, and fails to cure such default within five (5) business days of written
notice from Landlord then, in addition to all other remedies available under
this Lease and applicable law, Landlord may purchase such insurance on Tenant's
behalf and the cost of such insurance shall be Additional Rent due within ten
(10) days of written invoice from Landlord to Tenant.
Tenant hereby releases Landlord, and waives its entire right of recovery for
loss or damage to property located within or constituting a part or all of the
Building or the Project to the extent that the loss or damage is covered by (a)
Tenant's insurance, or (b) the insurance Tenant is required to carry under this
Article 16, whichever is greater. This waiver applies whether or not the loss is
due to the negligent acts or omissions of Landlord or Tenant, or their
respective officers, directors, employees, agents, contractors, or invitees.
Tenant shall have its insurers endorse the applicable insurance policies to
reflect the foregoing waiver of claims, provided however, that the endorsement
shall not be required if the applicable policy of insurance permits the named
insured to waive rights of subrogation on a blanket basis, in which case the
blanket waiver shall be acceptable.
17. DESTRUCTION. If during the term, the Premises or Project are more than
10% destroyed from any cause, or rendered inaccessible or unusable from any
cause, Landlord may, in its sole discretion, terminate this Lease by delivery of
notice to Tenant within 30 days of such event without compensation to Tenant. If
in Landlord's estimation, the Premises cannot be restored within 90 days
following such destruction, the Landlord shall notify Tenant and Tenant may
terminate this Lease by delivery of notice to Landlord within 30 days of receipt
of Landlord's notice. If neither Landlord nor Tenant terminates this Lease as
provided above, then Landlord shall commence to restore the Premises in
compliance with then existing laws and shall complete such restoration with due
diligence. In such event, this Lease shall remain in full force and effect, but
there shall be an abatement of Base Monthly Rent and Xxxxxx's Share of Expenses
between the date of destruction and the date of completion of restoration, based
on the extent to which destruction interferes with Xxxxxx's use of the Premises.
18. CONDEMNATION.
a. Taking. If all of the Premises are taken by Eminent Domain, this Lease
shall terminate as of the date Tenant is required to vacate the Premises and all
Base and Additional Rent shall be paid to that date. The term "Eminent Domain"
shall include the taking or damaging of property by, through or under any
governmental or statutory authority, and any purchase or acquisition in lieu
thereof, whether the damaging or taking is by government or any other person.
If, in the reasonable judgment of Landlord, a taking of any part of the Premises
by Eminent Domain renders the remainder thereof unusable for the business of
Tenant (or the cost of restoration of the Premises is not commercially
reasonable), the Lease may, at the option of either party, be terminated by
written notice given to the other party not more than thirty (30) days after
Landlord gives Tenant written notice of the taking, and such termination shall
be effective as of the date when Tenant is required to vacate the portion of the
Premises so taken. If this Lease is so terminated, all Base and Additional Rent
shall be paid to the date of termination. Whenever any portion of the Premises
is taken by Eminent Domain and this Lease is not terminated, Landlord shall at
its expense proceed with all reasonable dispatch to restore, to the extent of
available proceeds and to the extent it is reasonably prudent to do so, the
remainder of the Premises to the condition they were in immediately prior to
such taking, and Tenant shall at its expense proceed with all reasonable
dispatch to restore its personal property and all improvements made by it to the
Premises to the same condition they were in immediately prior to such taking.
The Base and Additional Rent payable hereunder shall be reduced from the date
Tenant is required to partially vacate the Premises in the same proportion that
the Rentable Area taken bears to the total Rentable Area of the Premises prior
to taking.
b. Award. Landlord reserves all right to the entire damage award or
payment for any taking by Eminent Domain, and Tenant waives all claim whatsoever
against Landlord for damages for termination of its leasehold interest in the
Premises or for interference with its business. Tenant hereby grants and assigns
to Landlord any right Tenant may now have or hereafter acquire to such damages
and agrees to execute and deliver such further instruments of assignment as
Landlord may from time to time request. Tenant shall, however, have the right to
claim from the condemning authority all compensation that may be recoverable by
Tenant on account of any loss incurred by Tenant in moving Tenant's merchandise,
furniture, trade fixtures and equipment, provided, however, that Tenant may
claim such damages only if they are awarded separately in the eminent domain
proceeding and not out of or as part of Landlord's damages.
19. ASSIGNMENT OR SUBLEASE. Tenant shall not assign or encumber its
interest in this Lease or the Premises or sublease all or any part of the
Premises or allow any other person or entity (except Tenant's authorized
representatives, employees, invitees, or guests) to occupy or use all or any
part of the Premises without first obtaining Landlord's consent which shall not
be withheld for Tenant's meeting the then Project standards for creditworthiness
and use. No assignment or sublease shall release Tenant from the obligation to
perform all obligations under this Lease. Any assignment, encumbrance or
sublease without Landlord's written consent shall be voidable and at Landlord's
election, shall constitute a default. If Tenant is a partnership, a withdrawal
or change, voluntary, involuntary or by operation of law of any partner, or the
dissolution of the partnership, shall be deemed a voluntary assignment. If
Tenant consists of more than one person, a purported assignment, voluntary or
involuntary or by operation of law from one person to the other shall be deemed
a voluntary assignment. If Tenant is a corporation, any dissolution, merger,
consolidation or other reorganization of Tenant, or sale or other transfer of a
controlling percentage of the capital stock of Tenant, or the sale of at least
25% of the value of the assets of Tenant shall be deemed a voluntary assignment.
The phrase "controlling percentage" means ownership of and right to vote stock
possessing at least 25% of the total combined voting power of all classes of
Tenant's capital stock issued, outstanding and entitled to vote for election of
directors. This Section 19 shall not apply to corporations the stock of
which is traded through an exchange or over the counter. Fifty (50%) of all rent
received by Tenant from its subtenants in excess of the Rent payable by Tenant
to Landlord under this Lease shall be paid to Landlord, or any sums to be paid
by an assignee to Tenant in consideration of the assignment of this Lease shall
be paid to Landlord. In lieu of granting consent to any proposed Transfer for
which Xxxxxx is required to obtain Landlord's consent, Landlord reserves the
right to terminate this Lease or, in the case of subletting of less than all the
Premises, to terminate this Lease with respect to such portion of the Premises,
as of the proposed effective date of such Transfer, in which event Landlord may
enter into the relationship of landlord and tenant with such proposed
Transferee. Notwithstanding the foregoing, Xxxxxxxx's recapture right shall not
apply to a sublease if (a) the term of the sublease ends at least 1 year prior
to the end of the term of the Lease and contains no extension rights, and (b)
the total area subleased, including the sublease at issue, will be less than 80%
of the Premises. If Tenant requests Xxxxxxxx to consent to a proposed assignment
or subletting, Tenant shall pay to Landlord, whether or not consent is
ultimately given, $100 or Landlord's reasonable attorney's fees incurred in
connection with such request, whichever is greater.
No interest of Tenant in this Lease shall be assignable by involuntary
assignment through operation of law (including without limitation the transfer
of this Lease by testacy or intestacy). Each of the following acts shall be
considered an involuntary assignment: (a) if Tenant is or becomes bankrupt or
insolvent, makes an assignment for the benefit of creditors, or institutes
proceedings under the Bankruptcy Act in which Tenant is the bankrupt; or if
Tenant is a partnership or consists of more than one person or entity, if any
partner of the partnership or other person or entity is or becomes bankrupt or
insolvent, or makes an assignment for the benefit of creditors; or (b) if a writ
of attachment or execution is levied on this Lease; or (c) if in any proceeding
or action to which Tenant is a party, a receiver is appointed with authority to
take possession of the Premises. An involuntary assignment shall constitute a
default by Tenant and Landlord shall have the right to elect to terminate this
Lease, in which case this Lease shall not be treated as an asset of Tenant.
Anything in this Section 19 to the contrary notwithstanding, Landlord hereby
consents to an assignment of this Lease, or to a subletting of all or part of
the Premises, to (a) the parent of Tenant or to a wholly-owned subsidiary of
Tenant or of such parent, (b) any corporation or other entity into which or with
which Tenant may be merged or consolidated, provided that the net worth of the
resulting entity is at least equal to Ten Million Dollars ($10,000,000), or (c)
any entity to which Tenant sells all or substantially all of its assets,
provided that the net worth of the resulting entity is at least equal to Ten
Million Dollars ($10,000,000), and such entity expressly assumes all of Tenant's
obligations hereunder. Transfer of all or any portion of the ownership of stock
in Tenant shall not be deemed an assignment of this Lease if such transfer is
made (x) pursuant to or in connection with an initial public offering or any
offering of the stock of Tenant, or (y) once the stock of Tenant is publicly
traded on a recognized public stock exchange.
20. DEFAULT. The occurrence of any of the following shall constitute a
default by Tenant: (a) a failure to pay Rent or other charge when due; (b)
abandonment and vacation of the Premises (failure to occupy and operate the
Premises for ten consecutive days shall be conclusively deemed an abandonment
and vacation); or (c) failure to perform any other provision of this Lease.
21. LANDLORD'S REMEDIES. Landlord shall have the following remedies if
Tenant is in default. (These remedies are not exclusive; they are cumulative and
in addition to any remedies now or later allowed by law): Landlord may terminate
Tenant's right to possession of the Premises at any time. No act by Landlord
other than giving notice to Tenant shall terminate this Lease. Acts of
maintenance, efforts to relet the Premises, or the appointment of a receiver on
Landlord's initiative to protect Xxxxxxxx's interest under this Lease shall not
constitute a termination of Tenant's right to possession. Upon termination of
Tenant's right to possession, Landlord has the right to recover from Tenant: (1)
the worth of the unpaid Rent that had been earned at the time of termination of
Tenant's right to possession; (2) the worth of the amount of the unpaid Rent
that would have been earned after the date of termination of Tenant's right to
possession less the amount that Tenant proves Landlord should be able to earn
during such period net of all releasing costs; (3) any other amount, including
but not limited to, expenses incurred to relet the Premises, court, attorney and
collection costs, necessary to compensate Landlord for all detriment caused by
Xxxxxx's default. "The Worth," as used for Item (1) in this Paragraph 21 is to
be computed by allowing interest at the rate of 18 percent per annum. If the
interest rate specified in this Lease is higher than the rate permitted by law,
the interest rate is hereby decreased to the maximum legal interest rate
permitted by law. "The Worth" as used for Item (2) in this Paragraph 21 is to be
computed by discounting the amount at the discount rate of the Federal Reserve
Bank of San Francisco at the time of termination of Tenant's right of
possession.
22. ENTRY ON PREMISES. Landlord and its authorized representatives shall
have the right to enter the Premises at all reasonable times for any of the
following purposes: (a) to determine whether the Premises are in good condition
and whether Tenant is complying with its obligations under this Lease; (b) to do
any necessary maintenance and to make any restoration to the Premises or the
Project that Landlord has the right or obligation to perform; (c) to post "for
sale" signs at any time during the term, to post "for rent" or "for lease" signs
during the last 90 days of the term, or during any period while Tenant is in
default; (d) to show the Premises to prospective brokers, agents, buyers,
tenants or persons interested in leasing or purchasing the Premises, at any time
during the term; or (e) to repair, maintain or improve the Project and to erect
scaffolding and protective barricades around and about the Premises but not so
as to prevent entry to the Premises and to do any other act or thing necessary
for the safety or preservation of the Premises or the Project. Landlord shall
not be liable in any manner for any inconvenience, disturbance, loss of
business, nuisance or other damage arising out of Landlord's entry onto the
Premises as provided in this Section 22. Tenant shall not be entitled to an
abatement or reduction of Rent if Landlord exercises any rights reserved in this
Section 22. Landlord shall conduct his activities on the Premises as provided
herein in a commercially reasonable manner so as to limit inconvenience,
annoyance or disturbance to Tenant to the maximum extent practicable. For each
of these purposes, Landlord shall at all times have and retain a key with which
to unlock all the doors in, upon and about the Premises, excluding Xxxxxx's
vaults and safes. Tenant shall not alter any lock or install a new or additional
lock or bolt on any door of the Premises without prior written consent of
Landlord. If Landlord gives its consent, Tenant shall furnish Landlord with a
key for any such lock.
23. SUBORDINATION; ESTOPPEL CERTIFICATE.
Subordination. Without the necessity of any additional document being executed
by Tenant for the purpose of effecting a subordination, and at the election of
Landlord or any mortgagee or any beneficiary of a Deed of Trust with a lien on
the Project or any ground lessor with respect to the Project, this Lease shall
be subject and subordinate at all times to (a) all ground leases or underlying
leases which may now exist or hereafter be executed affecting the Project, and
(b) the lien of any mortgage or deed of trust which may now exist or hereafter
be executed in any amount for which the Project, ground leases or underlying
leases, or Landlord's interest or estate in any of said items is specified as
security. In the event that any ground lease or underlying lease terminates for
any reason or any mortgage or Deed of Trust is foreclosed or a conveyance in
lieu of foreclosure is made for any reason, Tenant shall, notwithstanding any
subordination, attorn to and become the Tenant of the successor in interest to
Landlord, at the option of such successor in interest. Tenant covenants and
agrees to execute and deliver, upon demand by Xxxxxxxx and in the form requested
by Landlord any additional documents evidencing the priority or subordination of
this Lease with respect to any such ground lease or underlying leases or the
lien of any such mortgage or Deed of Trust. Tenant hereby irrevocably appoints
Landlord as attorney-in-fact of Tenant to execute, deliver and record any such
document in the name and on behalf of Xxxxxx.
b. Estoppel Certificate. Tenant shall, within 10 days of demand, execute
and deliver to Landlord a written statement certifying: (i) the commencement and
the expiration date of the Term; (ii) the amount of Base Rent and the date to
which it has been paid; (iii) that this Lease is in full force and effect and
has not been assigned or amended in any way (or specifying the date and terms of
each agreement so affecting this Lease) and that no part of the Premises has
been sublet (or to the extent such is not the case, a copy of any sublease);
(iv) that Landlord is not in default under this Lease (or if such is not the
case, the extent and nature of such default); (v) on the date of such
certification, there are no existing defenses or claims which Tenant has against
Landlord (or if such is not the case, the extent and nature of such. defenses or
claims); (vi) the amount of the Security Deposit held by Landlord; and (vii) any
other fact or representation that a mortgagee or purchaser may reasonably
request. It is intended that any such statement shall be binding upon Tenant and
may be relied upon by a prospective purchaser or mortgagee. If Tenant fails to
respond within 10 days of receipt of a written request by Landlord therefor, (a)
Tenant shall be deemed to have given a certificate as above provided, without
modification, and shall be conclusively deemed to have admitted the accuracy of
any information supplied by Landlord to a prospective purchaser or mortgagee,
and (b) Landlord may impose a fee of $100 per day for each day of delay in
providing the statement by Xxxxxx after the 10 day period.
24. NOTICE. Any notice, demand or request required hereunder shall be given
in writing to the party's facsimile number or address set forth in Section 1
hereof by any of the following means: (a) personal service; (b) electronic
communication, whether by telex, telegram or facsimile with electronic
confirmation; (c) overnight courier; or (d) registered or certified, first class
mail, return receipt requested. Such addresses may be changed by notice to the
other parties given in the same manner as above provided. Any notice, demand or
request sent pursuant to either
subsection (a) or (b) hereof shall be deemed received upon such personal service
or upon dispatch by electronic means with electronic confirmation of receipt.
Any notice, demand or request sent pursuant to subsection (c) hereof shall be
deemed received on the business day immediately following deposit with the
overnight courier and, if sent pursuant to subsection (d), shall be deemed
received forty-eight (48) hours following deposit in the U.S. mail. Tenant
hereby appoints as its agent to receive the service of all dispossessory or
distraint proceedings and notices thereunder the person in charge of or
occupying the Premises at the time, and, if no person shall be in charge of
occupying the same, then such service may be made by attaching the same on the
main entrance of the Premises.
25. WAIVER. No delay or omission in the exercise of any right or remedy by
Landlord shall impair such right or remedy or be construed as a waiver. No act
or conduct of Landlord, including without limitation, acceptance of the keys to
the Premises, shall constitute an acceptance of the surrender of the Premises by
Tenant before the expiration of the term. Only written notice from Landlord to
Tenant shall constitute acceptance of the surrender of the Premises and
accomplish termination of the Lease. Xxxxxxxx's consent to or approval of any
act by Tenant requiring Landlord's consent or approval shall not be deemed to
waive or render unnecessary Landlord's consent to or approval of any subsequent
act by Xxxxxx. Any waiver by Landlord of any default must be in writing and
shall not be a waiver of any other default concerning the same or any other
provision of the Lease. TENANT SPECIFICALLY ACKNOWLEDGES AND AGREES THAT, WHERE
TENANT HAS RECEIVED A NOTICE TO CURE DEFAULT (WHETHER RENT OR NON-RENT), NO
ACCEPTANCE BY LANDLORD OF RENT SHALL BE DEEMED A WAIVER OF SUCH NOTICE, AND,
INCLUDING BUT WITHOUT LIMITATION, NO ACCEPTANCE BY LANDLORD OF PARTIAL RENT
SHALL BE DEEMED TO WAIVE OR CURE ANY RENT DEFAULT. LANDLORD MAY, IN ITS
DISCRETION, AFTER RECEIPT OF PARTIAL PAYMENT OF RENT, REFUND SAME AND CONTINUE
ANY PENDING ACTION TO COLLECT THE FULL AMOUNT DUE, OR MAY MODIFY ITS DEMAND TO
THE UNPAID PORTION. IN EITHER EVENT THE DEFAULT SHALL BE DEEMED UNCURED UNTIL
THE FULL AMOUNT IS PAID IN GOOD FUNDS.
26. SURRENDER OF PREMISES; HOLDING OVER. Upon expiration of the term,
Xxxxxx shall surrender to Landlord the Premises and all Tenant improvements and
alterations in good condition, except for ordinary wear and tear and alterations
Tenant has the right or is obligated to remove under the provisions of Section
14 herein. Tenant shall remove all personal property including, without
limitation, all data and phone wires, wallpaper, paneling and other decorative
improvements or fixtures and shall perform all restoration made necessary by the
removal of any alterations or Tenant's personal property before the expiration
of the term, including for example, restoring all wall surfaces to their
condition prior to the commencement of this Lease. Landlord can elect to retain
or dispose of in any manner Xxxxxx's personal property not removed from the
Premises by Tenant prior to the expiration of the term. Tenant waives all claims
against Landlord for any damage to Tenant resulting from Xxxxxxxx's retention or
disposition of Xxxxxx's personal property. Tenant shall be liable to Landlord
for Landlord's cost for storage, removal or disposal of Tenant's personal
property.
If Xxxxxx, with Xxxxxxxx's consent, remains in possession of the Premises after
expiration or termination of the term, or after the date in any notice given by
Landlord to Tenant terminating this Lease, such possession by Tenant shall be
deemed to be a month-to-month tenancy terminable as provided under Washington
law, by either party. All provisions of this Lease, except those pertaining to
term and Rent, shall apply to the month-to-month tenancy. During any holdover
term, Tenant shall pay Base Monthly Rent in an amount equal to 150% of Base
Monthly Rent for the last full calendar month during the regular term plus 100%
of Tenant's share of Expenses pursuant to Section 4(b)(3). If Xxxxxx fails to
surrender possession of the Premises upon termination or expiration of this
Lease and if Tenant does not obtain Landlord's written consent to Xxxxxx's
continued occupancy, then Tenant shall be deemed a trespasser and shall be
liable to Landlord for all damages sustained by Landlord as a result thereof,
together with Base Rate at a rate double the Latest Rate.
27. LIMITATION OF LANDLORD'S LIABILITY. In consideration of the benefits
accruing hereunder, Xxxxxx agrees that, in the event of any actual or alleged
failure, breach or default of this Lease by Landlord, Landlord's liability under
this Lease shall be limited to, and Tenant shall look only to Landlord interest
in the Project and the rents and proceeds thereof.
29. MISCELLANEOUS PROVISIONS.
a. Time of Essence. Time is of the essence of each provision of this
Lease.
b. Successor. This Lease shall be binding on and inure to the benefit of
the parties and their successors, except as provided in Section 19 herein.
c. Landlord's Consent. Any consent required by Landlord under this Lease
must be granted in writing and may be withheld or conditioned by Landlord in its
sole and absolute discretion.
d. Commissions. Each party represents that it has not had dealings with
any real estate broker, finder or other person with respect to this Lease in any
manner, except for the broker(s) identified in Section 1, who shall be
compensated by Landlord. Landlord and Tenant recognize that it is possible that
they may hereafter make additional agreements regarding further extension or
renewal of this Lease or a new lease or leases for all or one or more parts of
the Premises or other space in the Project for a term or terms commencing after
the Commencement Date of this Lease. Landlord and Xxxxxx recognize that it is
also possible that they may hereafter modify this Lease to add additional space
or to substitute space as part of the Premises. If any such additional
agreements, new leases or modifications to this Lease are made, Landlord shall
not have any obligation to pay any compensation to any real estate broker or to
any other third person engaged by Tenant to render services to Tenant in
connection with negotiating such matters, regardless of whether under the
circumstances such person is or is not regarded by the law as an agent of
Landlord.
e. Other Charges. If either party commences any litigation against the
other party or files an appeal of a decision arising out of or in connection
with the Lease, the prevailing party shall be entitled to recover from the other
party reasonable attorney's fees and costs of suit. If Landlord employs a
collection agency to recover delinquent charges, Xxxxxx agrees to pay all
collection agency and attorneys' fees charged to Landlord in addition to Rent,
late charges, interest and other sums payable under this Lease. Tenant shall pay
a charge of $75 to Landlord for preparation of a demand for delinquent Rent.
f. Force Majeure. Landlord shall not be deemed in default hereof nor
liable for damages arising from its failure to perform its duties or obligations
hereunder if such is due to causes beyond its reasonable control, including, but
not limited to, acts of God, acts of civil or military authorities, fires,
floods, windstorms, earthquakes, strikes or labor disturbances, civil commotion,
delays in transportation, governmental delays or war.
g. Rules and Regulations. Tenant shall faithfully observe and comply with
the "Rules and Regulations", a-copy of-which is attached hereto, and all
reasonable and nondiscriminatory modifications thereof and additions thereto
from time to time put into effect by Xxxxxxxx. Landlord shall not be responsible
to Tenant for the violation or non-performance by any other tenant or occupant
of the building or Project of said tenant or occupant's lease or of any of said
Rules and Regulations.
h. Xxxxxxxx's Successors. In the event of a sale or conveyance by Landlord
of the Project, the same shall operate to release Landlord from any liability
under this Lease, and in such event Landlord's successor in interest shall be
solely responsible for all obligations of Landlord under this Lease.
i. Interpretation. This Lease shall be construed and interpreted in
accordance with the laws of the state in which the premises are located. This
Lease constitutes the entire agreement between the parties with respect to the
Premises and the Project, except for such guarantees or modifications as may be
executed in writing by the parties from time to time. When required by the
context of this Lease, the singular shall include the plural, and the masculine
shall include the feminine and/or neuter. "Party" shall mean Landlord or Tenant.
If more than one person or entity constitutes Landlord or Tenant, the
obligations imposed upon that party shall be joint and several. The
enforceability, invalidity or illegality of any provision shall not render the
other provisions unenforceable, invalid or illegal.
j. Prior Understandings. Tenant acknowledges that neither Xxxxxxxx nor
anyone representing Landlord has made statements of any kind whatsoever on which
Xxxxxx has relied in entering into this Lease. Tenant further acknowledges that
Tenant has relied solely on its independent investigation and its own business
judgment in entering into this Lease. Xxxxxxxx and Xxxxxx agree that: this Lease
supersedes all prior and contemporaneous understandings and agreement; the
provisions of this Lease are intended by them as the final expression of their
agreement; this Lease constitutes the complete and exclusive statement of its
terms; and no extrinsic evidence whatsoever may be introduced in any judicial
proceeding involving this Lease. No provision of this Lease may be
amended except by an agreement in writing signed by the parties hereto or their
respective successors in interest, whether or not such amendment is supported by
new consideration.
k. Authority. If Tenant is a corporation, each individual executing this
Lease on behalf of said corporation represents and warrants that he/she is duly
authorized to execute and deliver this Lease on behalf of said corporation.
Concurrently with the execution of this Lease, Tenant shall deliver to Landlord
a certified copy of a resolution of the Board of Directors of said corporation
authorizing the execution of this Lease. If Xxxxxx is a partnership, each
individual executing this Lease on behalf of said partnership represents and
warrants that he/she is duly authorized to execute and deliver this Lease on
behalf of said partnership and that this Lease is binding upon said partnership
in accordance with its terms, and concurrently with execution of this Lease,
Tenant shall deliver to Landlord such evidence of authorization as Landlord may
require. If Tenant is a marital community, or a member of a marital community,
both members of the marital community shall execute this Lease. Where Tenant is
comprised of more than one person or entity, all covenants, agreements and
obligations of Tenant hereunder shall be the joint and several covenants,
agreements and obligations of each person or entity comprising
1. Clean Air Act. Tenant acknowledges that Landlord has not made any
portion of the Premises or the Building accessible for smoking in compliance
with WAC 000-00-00000:- If Tenant wishes to make any portion of the Premises
accessible for smoking, Tenant shall make all improvements necessary to comply
with all applicable governmental rules and regulations. Tenant acknowledges that
the indemnity contained in Section 15 of the Lease includes, but is not limited
to claims based on the presence of tobacco smoke as a result of the activities
of Tenant, its employees, agents, or guests.
30. LEASE CONSIDERATION: In consideration of Xxxxxxxx's entry into this
lease and construction of tenant improvements by Landlord as specified on
Exhibit C of this Lease, Tenant shall pay Forty One Thousand Three Hundred Sixty
Two Dollars ($41.362.00) concurrent with the execution of this Lease. Such
consideration shall be deemed fully earned by Landlord with full execution of
Lease and shall not be refundable.
31. EARLY OCCUPANCY. Tenant shall be entitled to occupy the Premises for a
period of thirty (30) days prior to the Commencement Date, for the purpose of
construction of Tenant Improvements. If Tenant so occupies the Premises prior to
the Commencement Date, then (i) all provisions of this Lease other than payment
of Base Monthly Rent and Tenant's Share of Expenses shall be applicable from and
after the date of Tenant's first occupancy, and (ii) Tenant shall pay Landlord,
within fifteen (15) days of invoice, the cost of utility services used during
construction as reasonably estimated by Landlord. If Xxxxxx commences to do
business at or from the Premises prior TO SEPTEMBER 1, 2001 (or October 1, 2001,
as the case may be, as provided in Section 32 below), then Section 1(g) shall be
deemed amended to establish as the Commencement Date the day on which Tenant
commenced to do business at or from the Premises.
32. COMMENCEMENT DATE. The parties agree and acknowledge that Hexos, Inc.
currently occupies the Premises pursuant to a lease with Landlord that expires
August 31, 2001 (the "Hexos Lease"). Landlord and Hexos, Inc. are in the process
of negotiating the terms of a Lease Termination Agreement (the "Termination
Agreement"), but the Termination Agreement is not yet fmal. Landlord
anticipates, but cannot guarantee, that Hexos, Inc. will be willing and able to
vacate the Premises as of July 31, 2001. Xxxxxx agrees and acknowledges that
Xxxxxxxx's ability to deliver the Premises to Tenant thirty (30) days prior to
the estimated Commencement Date of September 1, 2001 is expressly conditioned
upon Landlord and Hexos, Inc. agreeing to the terms of the Termination
Agreement, and Hexos, Inc. vacating the Premises on or before July 31, 2001. If
Landlord and Hexos, Inc. are unable to agree on a Termination Agreement and the
Hexos Lease terminates on August 31, 2001 rather than July 31, 2001, this Lease
shall nonetheless be binding upon the parties, and the estimated Commencement
Date shall be October 1, 2001 rather than September 1, 2001.
33. OPTION TO RENEW. Tenant is granted the right to extend the term of this
Lease beyond the expiration date of the initial Lease Term for one (1)
successive period of sixty (60) months (the "Extended Term") with twelve (12)
months prior written notice. If Tenant has defaulted in its obligations under
this Lease, and failed to cure such defaults within any applicable cure period,
then Tenant's right to extend the Lease for the Extended Terms shall
automatically terminate. Tenant's right to extend the Lease for the Extended
Term is personal to Tenant and may not be exercised by any subtenant or assignee
of Tenant. Tenant's extension rights shall apply to all of the Property under
lease to Tenant at the time. From and after the commencement of the Extended
Term, all of the terms,
covenants, and conditions of the Lease shall continue in full force and effect
as written, except that Sections 30 and 31 shall be deleted in their entirety
and Base Rent for the Extended Term shall be at the rate for new leases for
similarly improved and situated premises in the project but not less than the
last month of current term.
Landlord: Teachers Insurance & Annuity Association of America, Inc.
By: /s/ Xxxxx Xxxxxxxx
------------------
Its: Assistant Secretary
Tenant: Neah Power Systems, Inc.
By: /s/ Xxxxx Xxxxxxx
-----------------
Its: President
EXHIBIT A
(THE PREMISES)
[diagram]
EXHIBIT B
(The Project)
LEGAL DESCRIPTION - PHASE II (BUILDINGS G-H)
THAT PORTION OF THE WEST HALF OF SECTION 29 AND OF THE EAST HALF OF SECTION 30,
TOWNSHIP 27 NORTH, RANGE 5 EAST, X.X., SNOHOMISH COUNTY, WASHINGTON, DESCRIBED
AS FOLLOWS:
BEGINNING AT A POINT ON THE NORTH LINE OF THE AMENDED PLAT OF VILLAGE SQUARE,
ACCORDING TO THE PLAT RECORDED IN VOLUME 42 OF PLATS, PAGE 193 THROUGH 198.
INCLUSIVE, RECORDS OF SAID COUNTY, SAID POINT BEING NORTH 88(degree)47'26" EAST
627.20 FEET FROM THE NORTHWEST CORNER OF SAID PLAT; THENCE SOUTH 88(degree)47'26
WEST 627.20 FEET ALONG SAID NORTH LINE TO SAID NORTHWEST CORNER OF SAID PLAT;
THENCE SOUTH 87(degree)10'04" WEST 25.02 FEET TO A POINT ON A 675.00 FOOT RADIUS
CURVE CONCAVE TO THE EAST, A RADIAL THROUGH SAID POINT BEARING SOUTH
89(degree)35'07" EAST; THENCE NORTHERLY ALONG SAID CURVE AN ARC DISTANCE OF
86.82 FEET TO A POINT OF TANGENCY; THENCE NORTH 7(degree)47'02" EAST 51.63 FEET
TO THE POINT OF CURVE OF A 725.00 FOOT RADIUS CURVE TO THE LEFT; THENCE
NORTHERLY ALONG SAID 725.00 FOOT RADIUS CURVE AN ARC DISTANCE OF 113.80 FEET TO
A POINT OF TANGENCY; THENCE NORTH 1(degree)12'34" WEST 549.17 FEET TO THE POINT
OF CURVE OF A 50.00 FOOT RADIUS CURVE TO THE RIGHT; THENCE NORTHERLY AND
EASTERLY ALONG SAID CURVE AN ARC DISTANCE OF 78.94 FEET TO A POINT OF REVERSE
CURVE WITH A 812.58 FOOT RADIUS CURVE TO THE LEFT; THENCE EASTERLY ALONG SAID
812.58 FOOT RADIUS CURVE AN ARC DISTANCE OF 270.70 FEET TO A POINT OF TANGENCY;
THENCE NORTH 70(degree)09'29" EAST 239.36 FEET; THENCE SOUTH 11(degree)28'14"
EAST 281.80 FEET; THENCE SOUTH 6(degree)46'06" EAST 258.77 FEET; THENCE SOUTH
14(degree)04'41" EAST 278.91 FEET; THENCE SOUTH 17(degree)06'43" WEST 170.08
FEET TO THE POINT OF BEGINNING.
(CONTAINING 555,541 SQ. FT. OR 12.753 ACRES, MORE OR LESS) Cross hatched area
denotes Project.
[diagram]
EXHIBIT C
WORK LETTER AGREEMENT
This Work Letter Agreement, is entered into in conjunction with that certain
lease dated MARCH 5, 2001, by and between TEACHERS INSURANCE & ANNUITY
ASSOCIATION OF AMERICA, INC. ("Landlord") and NEAH POWER SYSTEMS ("Tenant").
RECITALS:
A. Concurrently with the execution of this Work Letter Agreement,
Landlord and Tenant have entered into a lease (the "Lease") covering certain
premises (the "Premises") more particularly described in Exhibit "A" attached to
the Lease.
B.
C. In order to induce Tenant to enter into the Lease (which is
hereby incorporated by reference to the extent that the provisions of this Work
Letter Agreement may apply thereto) and in consideration of the mutual covenants
hereinafter contained, Landlord and Tenant hereby agree as follows:
1. TENANT IMPROVEMENTS.
Reference herein to "Tenant Improvements" shall include all work to be done in
the Premises pursuant to the Tenant Improvement Plans described in Paragraph 2
below, including, but not limited to, partitioning, doors, ceilings, floor
coverings, wall finishes (including paint and wallcovering), electrical
(including lighting, switching, telephones, outlets, etc.), plumbing, heating,
ventilating and air conditioning, fire protection, cabinets and other millwork.
2. TENANT IMPROVEMENT PLANS.
Immediately after the execution of the Lease, Xxxxxx agrees to meet with
Xxxxxxxx's architect and/or space planner for the purpose of preparing a space
plan for the layout of the Premises. Based upon such space plan, Xxxxxxxx's
architect shall prepare final working drawings and specifications for the Tenant
Improvements. Such final working drawings and specifications may be referred to
herein as the "Tenant Improvement Plans." The Tenant Improvement Plans must be
consistent with Landlord's standard specifications (the "Standards") for tenant
improvements for the Building, as the same may be changed from time to time by
Landlord.
Landlord shall bid the mutually approved Tenant Improvement Plan and select the
General Contractor based on those bids.
3. BID AWARD.
No further changes to the Tenant Improvement Plans may be made without the prior
written approval from both Landlord and Tenant, and then only after agreement by
Tenant to pay any excess costs resulting from the design and/or construction of
such changes.
4. CONSTRUCTION OF TENANT IMPROVEMENTS.
Landlord shall supervise the completion of the Tenant Improvement Work. The cost
of such work shall be paid as provided in Paragraph 5 hereof. Landlord shall not
be liable for any direct or indirect damages as a result of delays in
construction beyond Landlord's reasonable control, including, but not limited
to, acts of God, inability to secure governmental approvals or permits,
governmental restrictions, strikes, availability of materials or labor or delays
by Tenant (or its architect or anyone performing services on behalf of Tenant).
5. PAYMENT OF COST OF THE TENANT IMPROVEMENTS.
a. Landlord hereby grants to Tenant a "Tenant Allowance" of ELEVEN
THOUSAND DOLLARS ($11,000.00). Such Tenant Allowance shall be used only for:
(1) Payment of the cost of preparing the space plan and the final
working drawings and specifications, including mechanical, electrical, plumbing
and structural drawings and of all other aspects of the Tenant Improvement
Plans. The Tenant Allowance will not be used for the payment of extraordinary
design work not included within the scope of Landlord's building standard
improvements or for payments to any other consultants, designers or architects
other than Xxxxxxxx's architect and/or space planner.
(2) The payment of plan check, permit and license fees relating to
construction of the Tenant Improvements.
(3) Construction of the Tenant Improvements, including, without
limitation, the following:
(a) Installation within the Premises of all partitioning,
doors, floor coverings, ceilings, wall coverings and painting, millwork and
similar items.
(b) All electrical wiring, lighting fixtures, outlets and
switches, and other electrical work to be installed within the Premises.
(c) The furnishing and installation of all duct work,
terminal boxes, diffusers and accessories required for the completion of the
heating, ventilation and air conditioning systems within the Premises, I
including the cost of meter and key control for after-hour air conditioning.
(d) Any additional Tenant requirements including, but not
limited to, odor control, special heating, ventilation and air conditioning,
noise or vibration control or other special systems.
(e) All fire and life safely control systems such as fire
walls, sprinklers, halon, fire alarms, including piping, wiring and accessories
installed within the Premises.
(f) All plumbing, fixtures, pipes and accessories to be
installed within the Premises.
(g) Testing and inspection costs.
(h) Contractor's fees, including but not limited to any
fees based on general conditions.
(4) All other costs to be expended by Landlord in the construction
of the Tenant Improvements, including those costs incurred by Landlord for
construction of elements of the Tenant Improvements in the Premises.
b. The cost of each item shall be charged against the Tenant Allowance.
Landlord shall pay the first $11,000.00 invoiced from Contractor. Tenant shall
pay all invoices thereafter in accordance with the invoice/payment schedule set
forth in the contract.
c. In the event that Tenant shall require any changes or substitutions to
the Tenant Improvement Plans, any additional costs thereof shall be paid by
Tenant to Landlord within fifteen (15) days after invoice therefor. Landlord
shall have the right to decline Xxxxxx's request for a change to the Tenant
Improvement Plans if such changes would, in Landlord's opinion, unreasonably
delay construction of the Tenant Improvements.
d.
IN WITNESS WHEREOF, this Work Letter Agreement is executed as of the date first
above written.
LANDLORD: TENANT:
Teachers Insurance and Annuity Association of America Neah Power Systems, Inc.
By: /s/ Xxxxx Xxxxxxxx By: /s/ Xxxxx Xxxxxxx
------------------ -----------------
Its: Assistant Secretary Its: President
EXHIBIT D
(Rules and Regulations)
1. Except as specifically provided in the Lease to which these Rules and
Regulations are attached, no sign, placard, picture, advertisement, name or
notice shall be installed or displayed on any part of the outside or inside of
the building or Project without the prior written consent of Landlord. Landlord
shall have the right to remove, at Tenant's expense and without notice, any sign
installed or displayed in violation of this rule. All approved signs or
lettering on doors and walls shall be printed, painted, affixed or inscribed at
the expense of Tenant by a person approved by Landlord.
2. If Landlord objects in writing to any curtains, blinds, shades, screens
or hanging plants or other similar objects attached to or used in connection
with any window or door of the Premises, or placed on any windowsill, which is
visible from the exterior of the Premises, Tenant shall immediately discontinue
such use. Tenant shall not place anything against or near glass partitions or
doors or windows which may appear unsightly from outside the Premises.
3. Tenant shall not obstruct any sidewalks, halls, passages, exits,
entrances, elevators, escalators or stairways of the Project. The halls,
passages, exits, entrances, shopping malls, elevators, escalators and stairways
are not open to the general public, but are open, subject to reasonable
regulations, to Tenant's business invitees. Landlord shall in all cases retain
the right to control and prevent access thereto of all persons whose presence in
the judgment of Landlord would be prejudicial to the safety, character,
reputation and interest of the Project and its tenants; provided that nothing
herein contained shall be construed to prevent such access to persons with whom
any tenant normally deals in the ordinary course of its business, unless such
persons are engaged in illegal or unlawful activities. No tenant and no employee
or invitee of any tenant shall go upon the roof(s) of the Project.
4. The directory of the building or Project will be provided exclusively
for the display of the name and location of tenants only and Landlord reserves
the right to exclude any other names therefrom.
5. Landlord will furnish Tenant, free of charge, with five keys to each
door lock in the Premises. Landlord may make a reasonable charge for any
additional keys. Tenant shall not make or have made additional keys, and Tenant
shall not alter any lock or install a new additional lock or bolt on any door of
its Premises. Tenant, upon the termination of its tenancy, shall deliver to
Landlord the keys of all doors which have been furnished to Tenant, and in the
event of loss of any keys so furnished, shall pay Landlord therefor.
6. If Tenant requires telegraphic, telephonic, burglar alarm or similar
services, it shall first obtain, and comply with, Landlord's instructions in
their installation.
7. Tenant shall not place a load upon any floor of the Premises which
exceeds the load per square foot which such floor was designed to carry and
which is allowed by law. Landlord shall have the right to prescribe the weight,
size and position of all equipment, materials, furniture or other property
brought into the building. Heavy objects shall, if considered necessary by
Landlord, stand on such platforms as determined by Landlord to be necessary to
properly distribute the weight, which platforms shall be provided at Tenant's
expense. Business machines and mechanical equipment belonging to Tenant, which
cause noise or vibration that may be transmitted to the structure of the
building or to any space therein to such a degree as to be objectionable to
Landlord or to any tenants in the building, shall be placed and maintained by
Tenant, at Tenant's expense, on vibration eliminators or other devices
sufficient to eliminate noise or vibration. The persons employed to move such
equipment in or out of the building must be acceptable to Landlord. Landlord
will not be responsible for loss of, or damage to, any such equipment or other
property from any cause, and all damage done to the building by maintaining or
moving such equipment or other property shall be repaired at the expense of
Tenant.
8. Tenant shall not use or keep in the Premises any kerosene, gasoline or
inflammable or combustible fluid or material other than those limited quantities
necessary for the operation or maintenance of office equipment. Tenant shall not
use or permit to be used in the Premises any foul or noxious gas or substance,
or permit or allow the Premises to be occupied or used in a manner offensive or
objectionable to Landlord or other occupants of the building by reason of noise,
odors or vibrations, nor shall Tenant bring into or keep in or about the
Premises any birds or animals.
9. Tenant shall not use any method of heating or air conditioning other
than that supplied by Landlord.
10. Tenant shall not waste electricity, water or air conditioning and
agrees to cooperate fully with Landlord to assure the most effective operation
of the building's heating and air conditioning and to comply with any
governmental energy-saving rules, laws or regulations of which Xxxxxx has actual
notice, and shall refrain from attempting to adjust controls. Tenant shall keep
corridor doors closed, and shall close window coverings at the end of each
business day.
11. Landlord reserves the right, exercisable without notice and without
liability to Tenant, to change the name and street address of the building.
12. Landlord reserves the right to exclude from the building between the
hours of 6 p.m. and 7 a.m. the following day, or such other hours as may be
established from time to time by landlord, and on Sundays and legal holidays,
any person unless that person is known to the person or employee in charge of
the building and has a pass or is properly identified. Tenant shall be
responsible for all persons for whom it requests passes and shall be liable to
Landlord for all acts of such persons. Landlord shall not be liable for damages
for any error with regard to the admission to or exclusion from the building of
any person. Landlord reserves the right to prevent access to the building in
case of invasion, mob, riot, public excitement or other commotion by closing the
doors or by other appropriate action.
13. Tenant shall close and lock the doors of its Premises and entirely shut
off all water faucets or other water apparatus, and electricity, gas or air
outlets before tenant and its employees leave the Premises. Tenant shall be
responsible for any damage or injuries sustained by other tenants or occupants
of the building or by Landlord for noncompliance with this rule.
14. Overnight parking is prohibited and any vehicle violating this or any
other vehicle regulation adopted by Landlord is subject to removal at the
owner's expense.
15. Tenant shall not obtain for use on the Premises ices, drinking water,
food, beverage, towel or other similar services or accept barbering or
bootblacking service upon the Premises, except at such hours and under such
regulations as may be fixed by Landlord.
16. The toilet rooms, toilets, urinals, wash bowls and other apparatus
shall not be used for any purpose other than that for which they were
constructed and no foreign substance of any kind whatsoever shall be thrown
therein. The expense of any breakage stoppage or damage resulting from the
violation of this rule shall be borne by the tenant who, or whose employees or
invitees, shall have caused it.
17. Tenant shall not sell, or permit the sale at retail of newspapers,
magazines, periodicals, theater tickets or any other goods or merchandise to the
general public in or on the Premises. Tenant shall not make any room-to-room
solicitation of business from other tenants in the Project. Tenant shall not use
the Premises for any business or activity other than that specifically provided
for in Tenant's Lease.
18. Tenant shall not install any radio or television antenna, loudspeaker
or other devices on the roof(s) or exterior walls of the building or Project.
Tenant shall not interfere with radio or television broadcasting or reception
from or in the Project or elsewhere.
19. Tenant shall not mark, drive nails, screw or drill into the partitions,
woodwork or plaster or in any way deface the Premises or any part thereof,
except in accordance with the provisions of the Lease pertaining to alterations.
Landlord reserves the right to direct electricians as to where and how telephone
and telegraph wires are to be introduced to the Premises. Tenant shall not cut
or bore holes for wires. Tenant shall not affix any floor covering to the floor
of the Premises in any manner except as approved by Landlord. Tenant shall
repair any damage resulting from noncompliance with this rule.
20. Tenant shall not install, maintain or operate upon the Premises any
vending machines without the written consent of Landlord.
21. Canvassing, soliciting and distribution of handbills or any other
written material, and peddling in the Project are prohibited, and Tenant shall
cooperate to prevent such activities.
22. Landlord reserves the right to exclude or expel from the Project any
person who, in Landlord's judgment, is intoxicated or under the influence of
liquor or drugs or who is in violation of any of the Rules and Regulations of
the Building.
23. Tenant shall store all its trash and garbage within its premises or in
other facilities provided by Landlord. Tenant shall not place in any trash box
or receptacle any material which cannot be disposed of in the ordinary and
customary manner of trash and garbage disposal. All garbage and refuse disposal
shall be made in accordance with directions issued from time to time by
Landlord.
24. The Premises shall not be used for the storage of merchandise held for
sale to the general public, or for lodging or for manufacturing of any kind, nor
shall the Premises be used for any improper, immoral or objectionable purpose.
No cooking shall be done or permitted on the Premises or in the Project without
landlord's consent, except that use by Tenant of Underwriters' Laboratory
approved equipment for brewing coffee, tea, hot chocolate and similar beverages
or use of microwave ovens for employees use shall be permitted, provided that
such equipment and use is in accordance with all applicable, federal, state
county and city laws, codes, ordinances, rules and regulations.
25. Tenant shall not use in any space or in the public halls of the Project
any hand truck except those equipped with rubber tires and side guards or such
other material-handling equipment as Landlord may approve. Tenant shall not
bring any other vehicles of any kind into the building or Project.
26. Without the written consent of Landlord, Tenant shall not use the name
of the building or Project in connection with or in promoting or advertising the
business of Tenant except as Xxxxxx's address.
27. Tenant shall comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governmental agency.
28. Tenant assumes any and all responsibility for protecting its Premises
from theft, robbery and pilferage, which includes keeping doors locked and other
means of entry to the Premises closed.
29. Tenant's requirements will be attended to only upon appropriate
application to the Project management office by an authorized individual.
Employees of Landlord shall not perform any work or do anything outside of their
regular duties unless under special instructions from Landlord, and no employee
of Landlord will admit any person (Tenant or otherwise) to any office without
specific instructions from Landlord.
30. Landlord may waive any one or more of these Rules and Regulations for
the benefit of Tenant or any other tenant, but no such waiver by Landlord shall
be construed as a waiver of such Rules and Regulations in favor of Tenant or any
other tenant, not prevent Landlord from thereafter enforcing any suck Rules and
Regulations against any or all of the tenants of the Project.
31. These Rules and Regulations are in addition to, and shall not be
construed to in any way modify or amend, in whole or in part, the terms,
covenants, agreements and conditions of the Lease.
32. Landlord reserves the right to make such other and reasonable Rules and
Regulations as, in its judgment, may from time to time be needed for safety and
security, for care and cleanliness of the Project and for the preservation of
good order therein. Xxxxxx agrees to abide by all such Rules and Regulations
hereinabove stated and any additional rules and regulations which are adopted.
33. Tenant shall be responsible for the observance of all of the foregoing
rules by Tenant's employees, agents, clients, customers, invitees and guests.
EXHIBIT E
(Tenant Sign Criteria)
CANYON PARK BUSINESS CENTER
The sign criteria have been established for the purpose of maintaining the
overall appearance of Canyon Park Business Center Buildings. It must comply with
the covenants, conditions and restrictions of Canyon Park Business Center.
Conformation will be strictly enforced. Any sign installed without approval of
the Landlord will be brought into conformity at the expense of the Tenant.
REQUIREMENTS
1. Landlord shall provide the following signage at no cost to Tenant:
a) Xxxxxx's name and suite number on all exterior project
directories.
b) Tenant's name and suite number on front entry glass.
c) Xxxxxx's name and suite number on rear transom glass where
applicable.
2. Tenant shall be responsible for the 8" logo box on front window and for
coordinating the construction, installation and payment of building-mounted
company signs. The building-mounted signage shall consist of individual 24" or
less high dimensional styrofoam letters in a type style approved by Landlord.
Maximum line length shall not exceed 16 feet.
3. Method of attachment, location, color, font style and size shall be in
standard conformity and shall be approved by Landlord prior to installation.
SPECIFICATIONS
1. The Tenant sign order attached provides the window sign guidelines. The
signs will be located on the window closest to the front door.
2. The style, color and size of the individual company's name shall be
standard and in conformity to the Landlord's approval. Landlord reserves the
right to modify window signage design based on Tenant's corporate type style
and/or format. (See attached sign order).
3. The placement of the sign and method of attachment to the building will
be directed by the Landlord. All wall signage to be placed between panel joints.
Signs shall be placed at same height on each building.
4. No electrical or audible signs will be permitted except those which
presently exist in project or which may be required by the Americans With
Disabilities Act.
5. Except as provided herein, no advertising placards, banners, pennants,
names, insignia trademarks, "sandwich boards" or other descriptive material
shall be affixed or maintained upon the glass, exterior walls, landscaped areas,
street, or parking areas.
DIRECTORY
1. Each Tenant shall be allowed a space on the building directory sign, if
applicable.
2. Method of attachment, location, color and size shall be in standard
conformity and shall be solely up to the Landlord's approval.
MEZZANINE TENANTS
1. Each mezzanine Tenant shall be allowed a space on the entry sign
located at the building entrance, if applicable, and signage on their individual
entrance door. The following is an example of a standard layout for window
identification graphics for Canyon Park Business Center. NOTE: the example is a
flush-left layout. Your layout may not be flush left depending on the position
of your window.
[diagram]
IS LOGO CAMERA READY ARTWORK PROVIDED? YES NO
IS LOGO TYPE CAMERA READY ARTWORK PROVIDED? YES NO
(LOGO SYMBOL IN COLOR, ALL OTHER COPY MUST BE IN WHITE:)
(IF NO ARTWORK PROVIDED, HELVETICA MEDIUM TYPE WILL BE USED:)
REGARDING THE 11" X 36" TENANT I.D. ZONE:
IF THE TENANT'S NAME OR LOGOTYPE WILL FIT ON:
1 LINE, THEN MAXIMUM LETTER HEIGHT ALLOWED IS 8"
2 LINES, THEN MAXIMUM LETTER HEIGHT ALLOWED IS 5"
3 LINES, THEN MAXIMUM LETTER HEIGHT ALLOWED IS 3"
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Exhibit F
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Acuglass 111 Spin-on Glass Acetic Acid Glacial Reagent/ EG
Acetone
Ammonia, anhydrous ammonia Alpha-Terpineol
Aluminum Etch
Aluminum, Foil, 0.1 mm, 99.99% AP 115
AP 110, AP 120, AP 130
AP 121
Argon (Compressed Gas)
Ar-Dri Base Neutralizer
AZ BARLi
AZ 351 Developer
AZ(R) EXP PLP(TM) I00XT Photoresist AZ(R) 400K Developer
AZ 1512 SFD Photoresist
AZ 1518 Photoresist
AZ 300T Photoresist Stripper AZ P4620 Photoresist
AZ(R) 9260 Photoresist (520 CPS) AZ KWIK Strip Remover
AZ 1512 SFD Photoresist
AZ Developer
Barium Chloride, dihydrate Barium hydroxide, octahydrate
BOE (Buffered Oxide Etch) 10:1 SG 4x9 CS B2-C Photographic
Bleach
Calcium carbonate
Carbon Tetraflouride (CF4 - compressed gas) Chlorobenzene
Chromium Etchant, type TFD
Chromium pieces, 2-3mm, 99.995% (Metal) Conductive Silver
Paint
Copper, foil
CR4 Chromium Etchant
C-2C Clearing Bath
1,3-Diaminopropane
Di methyl polysi loxanes
Dihydrogen hexahydroxyplatinate (IV) Dry Acid Neutralizer
Dry Base Neutralizer
DE6180 Developer
D-5/ D-5C Negative Developer Emca-Remex 00-00000-00
(Sealing Glass) Ethanol
Ethylenediamine
Ethyl Cellulose
FX-33-145 Silver (ALN) Conductor Gold Etchant Type TFA
Gold, Foil, 0.5mm, 99.9985% Hexaamineruthenium(III)
chloride Hexane
Hexamethyldisiloxane
Hydrochloric Acid
Hydroflouric Acid
Hydroflouric Acid Emergency Cleanup Kit Hydrogen (Compressed)
Hydrogen Hexachloroplatinate (IV) Hydrate Hydrogen Peroxide
Isopropyl Alcohol
Leitsilber 200 Conductive Silver Liquid Acid Neutralizer
Liquid Base Neutralizer
Methanol
2-Methoxyethanol
Methyl iso-butyl ketone
Microposit 1165 Remover
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Microstrip (R) 2001
Megaposit MF-26A Developer Megaposit S3813 Photoresist
Megaposit XP-98220 (0.7-7.0) Photoresist Methyltriflouride
(CHF3 - compressed)
Molybdenum (Metal)
Nafion 112 Membrane
Nafion 117, 5% Solution
Nickel Foil (Metal)
Xxxxxx, Evaporation Slugs (Metal)
Nickel Plating Solution, electroless, solution A Nickel
Plating Solution, electroless, solution B Nickel (II)
Sulfamate Concentrate Niobium Foil (Metal)
Nitric Acid
Nitrogen, or LIN (in cryogenic liquid state)
OCG Resist Rinse I
Oxygen (Compressed)
PF Developer
Palladium Foil (Metal)
Palladium Slug (Metal)
Palladium (II) Chloride
Perchloric Acid, 70%, Redistilled, 99.99% Phosphoric Acid
Platium (II) 2,4-pentanedionate
Platinum 20%, Ruthenium 10% on carbon black Platinum
Wire (Metal)
Platinum Foil (Metal)
Platinum, 40% on carbon black RI1980 Polyimide Developer
PI2721 Polyimide Coating
Potassium Hydrogenphosphate, 98+%, A.C.S. Reagen Potassium
Hydroxide, 45 wt.. % solution in Water Potassium Hydroxide,
Pellets, 85+%, A.C.S Reagent Potassium Nitrate
Potassium Phosphate, 97% PSE-300
Pur-A-Gold - Base Adjusting Salt Pur-A-Gold - 401 Make Up
Pur-A-Gold - Replenisher A Pur-A-Gold - Replenisher B
Pur-A-Gold - Thallium Additive Pyrazine
Pyrocatechol
Silicone Elastomer
Sodium Hydroxide
Sulfur Hexaflouride (SF6 - compressed gas)
Sulfuric Acid
Ruthenium (III) Chloride Hydrate Ruthenium (III)
nitrosylnitrate Ruthenium (Ill) 2,4-pentanedionate Tantalum
Foil (Metal)
TechFilm T2321
Tetraamineplatinum(IV) hydroxide hydrate
Tetraethyl orthosilicate
Thinner 0804
Titanium, foil
Toluene
UBAC RI
UV Curing Adhesive
Vanadium Foil (Metal)
Vanadium (V) oxytriisopropoxide XP SU-8 Developer
Zeolite (Sodium Alumino Silicate)
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