EXHIBIT 10.1
LEASE
THIS LEASE AGREEMENT (this "Lease") is entered into as of September 16,
1999, between OLYMPIA PROPERTIES, L.L.C., a Washington limited liability company
("Landlord"), and INTERTECH MANAGEMENT GROUP, INC. ("Tenant").
DEFINITIONS AND
BASIC PROVISIONS 1. The definitions and basic provisions set
forth in the Basic Lease Information (the "Basic
Lease Information") executed by Landlord and Tenant
contemporaneously herewith are incorporated herein by
reference for all purposes.
LEASE GRANT 2. Subject to the terms of this Lease,
Landlord leases to Tenant, and Tenant leases from
Landlord, the Premises.
TERM 3. If the Commencement Date is not the first
day of a calendar month, then the Term shall be
extended by the time between the Commencement Date
and the first day of the next month. If this Lease is
executed before the Premises become vacant or
otherwise available and ready for occupancy by
Tenant, or if any present occupant of the Premises
holds over and Landlord cannot acquire possession of
the Premises before the Commencement Date, or if any
present tenant holds a right of first refusal or
similar right over such space then in any such event
(a) Tenant's obligation to pay Rent hereunder shall,
unless any delay is caused by Tenant, be waived until
the date Landlord tenders possession of the Premises
to Tenant, (b) the Term shall be extended by the time
between the scheduled Commencement Date and the date
on which Landlord tenders possession of the Premises
to Tenant, (c) Landlord shall not be in default
hereunder or be liable for damages therefor, and (d)
Tenant shall accept possession of the Premises when
Landlord tenders possession thereof to Tenant. By
occupying the Premises, Tenant shall be deemed to
have accepted the Premises in their condition as of
the date of such occupancy, subject to the
performance of punch-list items that remain to be
performed by Landlord, if any. Tenant shall execute
and deliver to Landlord, within ten days after
Landlord has requested same, a letter confirming (i)
the Commencement Date, (ii) that Tenant has accepted
the Premises, and (iii) that Landlord has performed
all of its obligations with respect to the Premises
(except for punch-list items specified in such
letter).
RENT 4. a. Payment. Tenant shall timely pay to
Landlord the Basic Rental and all additional sums to
be paid by Tenant to Landlord under this Lease,
including the amounts set forth in Section 4.b and
Section 4.c, without deduction or set off, at
Landlord's Address (or such other address as Landlord
may from time to time designate in writing to
Tenant). Basic Rental shall be payable monthly in
advance. The first monthly installment of Basic
Rental and the Security Deposit shall be payable
contemporaneously with the execution of this Lease;
thereafter, monthly installments of Basic Rental
shall be due on the first day of the second full
calendar month after the Commencement Date and
continuing on the first day of each succeeding
calendar month during the Term. Basic Rental for any
fractional month at the beginning of the Term shall
be prorated based on 1/365 of the current annual
Basic Rental for each day of the partial month this
Lease is in effect, and shall be due on the
Commencement Date.
b. Excess. Commencing six (6) months
following the Commencement Date, Tenant shall pay an
amount (per each rentable square foot in the
Premises) equal to the excess ("Excess") from time to
time of actual Basic Cost per rentable square foot in
the Building over the actual Basic Cost per rentable
square in
the Building incurred during the 1999 calendar year
(the "Base Year"). Landlord may collect such amount
in a lump sum, to be due within 30 days after
Landlord furnishes to Tenant the Annual Cost
Statement (defined below). Alternatively, Landlord
may make a good faith estimate of the Excess to be
due by Tenant for any calendar year or part thereof
during the Term, and, unless Landlord delivers to
Tenant a revision of the estimated Excess, Tenant
shall pay to Landlord, on January 1, 2000, and on the
first day of each calendar month thereafter, an
amount equal to the estimated Excess for such
calendar year or part thereof divided by the number
of months in such calendar year during the Term. From
time to time during any calendar year, Landlord may
estimate and re-estimate the Excess to be due by
Tenant for that calendar year and deliver a copy of
the estimate or re-estimate to Tenant. Thereafter,
the monthly installments of Excess payable by Tenant
shall be appropriately adjusted in accordance with
the estimations so that, by the end of the calendar
year in question, Tenant shall have paid all of the
Excess as estimated by Landlord. Any amounts paid
based on such an estimate shall be subject to
adjustment pursuant to Section 4.e when actual Basic
Cost is available for each calendar year.
Notwithstanding anything contained in this Lease to
the contrary, Tent shall not be liable for Excess
during the first (1st) six (6) months following the
Commencement Date.
c. Basic Cost Definition. For the purposes
of this Lease, the term "Basic Cost" shall mean all
reasonable expenses and disbursements of every kind
(subject to the limitations set forth below) and net
of any reimbursements or credits which Landlord
incurs, pays or becomes obligated to pay in
connection with the ownership, operation, and
maintenance of the Building (including the associated
parking facilities), determined in accordance with
generally accepted federal income tax basis
accounting principles consistently applied, including
but not limited to the following:
(i) Wages and salaries (including
management fees) of all employees to the
extent engaged in the operation, repair,
replacement, maintenance, and security of
the Building, including taxes, insurance and
benefits relating thereto;
(ii) All supplies and materials
used in the operation, maintenance, repair,
replacement, and security of the Building;
(iii) Annual cost of all capital
improvements made to the Building which
although capital in nature can reasonably be
expected to reduce the normal operating
costs of the Building, as well as all
capital improvements made in order to comply
with any law promulgated by any governmental
authority after the Commencement Date
hereof, as amortized over the useful
economic life of such improvements as
determined by Landlord in its reasonable
discretion (without regard to the period
over which such improvements may be
depreciated or amortized for federal income
tax purposes);
(iv) Cost of all electricity, water
and other utilities, other than the cost of
utilities directly reimbursed to Landlord
(i.e., through submeters or comparable
devices) by the Building's tenants;
(v) Cost of any insurance or
insurance related expense applicable to the
Building and Landlord's personal property
used in connection therewith;
(vi) All taxes and assessments and
governmental charges whether federal, state,
county or municipal, and whether they be by
taxing or
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management districts or authorities
presently taxing or by others, subsequently
created or otherwise, and any other taxes
and assessments attributable to the Building
(or its operation), and the grounds, parking
areas, driveways, and alleys around the
Building, excluding, however, federal and
state taxes on income (collectively,
"Taxes"); if the present method of taxation
changes so that in lieu of the whole or any
part of any Taxes levied on the Land or
Building, there is levied on Landlord a
capital tax directly on the rents received
therefrom or a franchise tax, assessment, or
charge based, in whole or in part, upon such
rents for the Building, then all such taxes,
assessments, or charges, or the part thereof
so based, shall be deemed to be included
within the term "Taxes" for the purposes
hereof;
(vii) Cost of repairs,
replacements, and general maintenance of the
Building, including repair, replacement, and
general maintenance of the roof, foundation
and exterior walls of the Building; and
(viii) Cost of routine service or
maintenance contracts with independent
contractors for the operation, maintenance,
repair, replacement, or security of the
Building (including, without limitation,
alarm service, window cleaning, and elevator
maintenance).
There are specifically excluded from the definition
of the term "Basic Cost" costs (1) for capital
improvements made to the Building, other than capital
improvements described in subparagraph (iii) above
and except for items which, though capital for
accounting purposes, are properly considered
maintenance and repair items, such as painting of
common areas, replacement of carpet in elevator
lobbies, and the like; (2) for repair, replacements
and general maintenance paid by proceeds of insurance
or by Tenant or other third parties, and alterations
attributable solely to tenants of the Building other
than Tenant; (3) for interest, amortization or other
payments on loans to Landlord; (4) for depreciation
of the Building and Landlord's personal property; (5)
for leasing commissions, allowances and concessions,
marketing costs, lease takeover costs, moving costs
and other costs incurred solely in order to lease
space in the Building; (6) for legal expenses, other
than those incurred for the general benefit of the
Building's tenants (e.g., tax disputes); (7) for
renovating or otherwise improving space for occupants
of the Building or vacant space in the Building; (8)
for federal income taxes imposed on or measured by
the income of Landlord from the operation of the
Building; (9) for any ground leases affecting the
Building; (10) for services provided by Landlord's
affiliates to the extent in excess of that which
would be incurred in an arms length transaction; (11)
expenses for which Landlord is actually reimbursed
through proceeds of insurance, agreements of
indemnity, surety bonds or guaranties incurred by
Landlord as a result of a fire or other casualty or
as a result of a taking by way of eminent domain;
(12) legal expenses incurred in the negotiation,
enforcement and termination of tenant leases; (13)
fines or penalties incurred by Landlord with respect
to any violations by Landlord or the Building or Land
arising before the date hereof; (14) all expenses for
which Landlord receives reimbursement, other than
tenants reimbursement of Basic Costs; (15) expenses
incurred by Landlord in its capacity as a
corporation, partnership or other business entity and
not because of or in connection with Landlord's
management, maintenance, repair or operation of the
Property; (16) wages, salaries and other expenses or
compensation paid to employees of Landlord or
Landlord's managing agent above the grade of building
superintendent; any management, administrative or
overhead fee or similar fee exceeding, in the
aggregate, five percent (5%) of the gross monthly
collections of the Building; (17) expenses in
connection with services or other benefits of a type
which are not provided or available to Tenant but
which are provided to another tenant of the Building
or to some other third party; (18) ground lease
rentals, principal or interest payments, refinancing
charges or points, or penalties resulting from late
payments by
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the Landlord, or depreciation; (19) costs incurred in
connection with the cure or correction of latent
defects (as opposed to the cost of normal repair,
maintenance and replacement expected with the
construction materials and equipment installed in the
Building in light of their specification) at the
Building and cost incurred in connection with the
removal of asbestos from the Building; (20)
franchise, income or other taxes measured or
determined based upon Landlord's income except to the
extent imposed in lieu of all or any part of Taxes;
(21) any particular item or service for which Tenant
otherwise reimburses Landlord by direct payment; and
(22) any fines or penalties incurred due to actual or
alleged violations by Landlord of any governmental
rule or authority.
d. Annual Cost Statement. By April 1 of each
calendar year, or as soon thereafter as practicable,
Landlord shall furnish to Tenant a statement of
Landlord's actual Basic Cost (the "Annual Cost
Statement") for the previous year adjusted as
provided in Section 4e. If the Annual Cost Statement
reveals that Tenant paid more for Basic Cost than the
actual Excess, each in the year for which such
statement was prepared, then Landlord shall promptly
credit or reimburse Tenant such excess; likewise, if
Tenant paid less than the actual Excess, then Tenant
shall promptly pay Landlord such deficiency.
e. Adjustments to Basic Cost. With respect
to any calendar year or partial calendar year
(including the Base Year) in which the Building is
not occupied to the extent of ninety-five percent
(95%) of the rentable area thereof, the Basic Cost
(except costs not affected by occupancy) for such
period shall, for the purposes hereof, be increased
to the amount which would have been incurred had the
Building been occupied to the extent of ninety-five
percent (95%) of the rentable area thereof.
f. Audit. Tenant shall have the right to
inspect Landlord's records at Landlord's office upon
at least seventy-two (72) hours' prior notice during
normal business hours during the ninety (90) days
following the respective delivery of any such report.
The results of any such inspection shall be kept
strictly confidential by Tenant and its agents, and
Tenant must agree to such confidentiality
restrictions and shall specifically agree that the
results shall not be made available to any other
tenant of the Building. Unless Tenant sends to
Landlord any written exception to either such report
within said ninety (90) day period, such report shall
be deemed final and accepted by Tenant. Tenant shall
pay the amount shown on both reports in the manner
prescribed in the Lease, whether or not Tenant takes
any such written exception, without any prejudice to
such exception. If Tenant makes a timely exception,
Landlord shall cause its independent certified public
accountant to issue a final and conclusive resolution
of Tenant's exception. Tenant shall pay the cost of
such certification unless Landlord's original
determination of annual Basic Cost overstated the
amounts thereof by more than five percent (5%).
DELINQUENT
PAYMENT;
HANDLING CHARGES 5. All payments required of Tenant hereunder
shall bear interest from the date due and the
expiration of any applicable cure period until paid
at the maximum lawful rate. Alternatively, Landlord
may charge Tenant a fee equal to eight percent (8%)
of a delinquent payment to reimburse Landlord for its
cost and inconvenience incurred as a consequence of
Tenant's delinquency. In no event, however, shall the
charges permitted under this Section 5 or elsewhere
in this Lease, to the extent the same are considered
to be interest under applicable law, exceed the
maximum lawful rate of interest.
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SECURITY DEPOSIT 6. If Tenant at any time delivers a Security
Deposit to Landlord, such Security Deposit shall be
held by Landlord without liability for interest and
as security for the performance by Tenant of its
obligations under this Lease. The Security Deposit is
not an advance payment of Rent or a measure or limit
of Landlord's damages upon an Event of Default
(defined below). Landlord may, from time to time and
without prejudice to any other remedy, use all or a
part of the Security Deposit to perform any
obligation which Tenant was obligated, but failed, to
perform hereunder. Following any such application of
the Security Deposit, Tenant shall pay to Landlord on
demand the amount so applied in order to restore the
Security Deposit to its original amount. Within
ninety (90) days after the expiration of the Term,
provided Tenant has performed all of its obligations
hereunder, Landlord shall return to Tenant the
balance of the Security Deposit not applied to
satisfy Tenant's obligations. If Landlord transfers
its interest in the Premises, then Landlord may
assign the Security Deposit to the transferee and
Landlord thereafter shall have no further liability
for the return of the Security Deposit.
LANDLORD'S
OBLIGATIONS 7. a. Services. Provided no Event of Default
exists, Landlord shall use all reasonable efforts to
furnish to Tenant (i) water (hot and cold) at those
points of supply provided for general use of tenants
of the Building; (ii) heated and refrigerated air
conditioning as appropriate, at such times as
Landlord normally furnishes these services to all
tenants of the Building, and at such temperatures and
in such amounts as are reasonably considered by
Landlord to be standard; (iii) janitorial service to
the Premises on weekdays other than holidays for
Building-standard installations (Landlord reserves
the right to xxxx Tenant separately for extra
janitorial service required for non-standard
installations) and such window washing as may from
time to time in Landlord's judgment be reasonably
required; (iv) elevators for ingress and egress to
the floor on which the Premises are located, in
common with other tenants, provided that Landlord may
reasonably limit the number of elevators to be in
operation at times other than during customary
business hours and on holidays; (v) replacement of
Building-standard light bulbs and fluorescent tubes
at the Premises, provided that Landlord's standard
charge for such bulbs and tubes shall be paid by
Tenant; and (vi) electrical current during normal
business hours other than for any equipment that
requires more than 110 volts, or other equipment
whose electrical energy consumption exceeds normal
office usage. Landlord shall maintain the common
areas of the Building in reasonably good order and
condition, except for damage occasioned by Tenant, or
its employees, agents or invitees. If Tenant desires
any of the services specified in this Section 7.a at
any time other than times herein designated, such
services shall be supplied to Tenant upon the written
request of Tenant delivered to Landlord before 3:00
p.m. on the business day preceding such extra usage,
and Tenant shall pay to Landlord the reasonable cost
of such services within ten days after Landlord has
delivered to Tenant an invoice therefor.
b. Excess Utility Use. Landlord shall use
reasonable efforts to furnish electrical current for
computers, electronic data processing equipment,
special lighting, equipment that requires more than
110 volts, or other equipment whose electrical energy
consumption exceeds normal office usage through the
then-existing feeders and risers serving the Building
and the Premises, and Tenant shall pay to Landlord
the reasonable cost of such service within ten days
after Landlord has delivered to Tenant an invoice
therefor. Landlord may determine the amount of such
additional consumption and potential consumption by
either or both: (i) a survey of standard or average
tenant usage of electricity in the Building performed
by a reputable consultant selected by Landlord and
reasonably acceptable to Tenant and paid for by
Tenant; or (ii) a separate meter in the Premises
installed, maintained, and read by Landlord, at
Tenant's expense. Tenant shall not install any
electrical equipment requiring special wiring or
requiring voltage in excess of 110 volts or otherwise
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exceeding Building capacity unless approved in
advance by Landlord. Landlord acknowledges that
Tenant will install a data center subject to the
requirements set forth in this Section 7.b. except
for the requirement that Landlord has written notice
thereof. The use of electricity in the Premises shall
not exceed the capacity of existing feeders and
risers to or wiring in the Premises. Any risers or
wiring required to meet Tenant's excess electrical
requirements shall, upon Tenant's written request, be
installed by Landlord, at Tenant's cost, if, in
Landlord's sole and absolute judgment, the same are
necessary and shall not cause permanent damage or
injury to the Building or the Premises, cause or
create a dangerous or hazardous condition, entail
excessive or unreasonable alterations, repairs, or
expenses, or interfere with or disturb other tenants
of the Building. If Tenant uses machines or equipment
(other than general office machines, excluding
computers and electronic data processing equipment)
in the Premises which affect the temperature
otherwise maintained by the air conditioning system
or otherwise overload any utility, Landlord may
install supplemental air conditioning units or other
supplemental equipment in the Premises, and the
reasonable cost thereof, including the cost of
installation, operation, use, and maintenance, shall
be paid by Tenant to Landlord within ten days after
Landlord has delivered to Tenant an invoice therefor.
c. Discontinuance. Landlord's obligation to
furnish services under Section 7.a shall be subject
to the rules and regulations of the supplier of such
services and governmental rules and regulations.
Landlord may, upon not less than 5 days' prior
written notice to Tenant, discontinue any such
service to the Premises, provided Landlord first
arranges for a direct connection thereof through the
supplier of such service. Tenant shall, however, be
responsible for contracting with the supplier of such
service and for paying all deposits for, and costs
relating to, such service.
d. Restoration of Services; Abatement.
Landlord shall use reasonable efforts to restore any
service that becomes unavailable; however, such
unavailability shall not render Landlord liable for
any damages caused thereby, be a constructive
eviction of Tenant, constitute a breach of any
implied warranty, or, except as provided in the next
sentence, entitle Tenant to any abatement of Tenant's
obligations hereunder. However, if Tenant is
prevented from making reasonable use of the Premises
for more than 10 consecutive days because of the
unavailability of any such service, Tenant shall, as
its exclusive remedy therefor, be entitled to a
reasonable abatement of Rent for each consecutive day
(after such 10-day period) that Tenant is so
prevented from making reasonable use of the Premises.
e. Year 2000 Disclaimer. Except for Tenant's
remedy of rental abatement in accordance with Section
7(d) above, Landlord hereby disclaims any liability
for any and all damages, injuries or other losses,
whether ordinary, special, consequential, punitive or
otherwise, arising out of, relating to or in
connection with (a) the failure of any automated,
computerized and/or software system or other
technology used in, or about the Building or relating
to the management or operation of the Building to
accurately receive, provide or process date/time data
(including, but not limited to, calculating,
comparing and sequencing) both before and after
September 9, 1999 and before, after, during and
between the years 1999 A.D. and 2000 A.D., and lease
year calculations; and/or (b) the malfunction,
ceasing to function or providing of invalid or
incorrect results by any such technology as a result
of date/time data. The foregoing disclaimer shall
apply to any such technology used in, on, or about
the Building or that affects the Building, whether or
not such technology is within the control of Landlord
or any of Landlord's agents or representatives. THE
FOREGOING DISCLAIMER INCLUDES A DISCLAIMER OF ALL
WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED,
WITH RESPECT TO THE MATTERS DESCRIBED HEREIN,
INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
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IMPROVEMENTS;
ALTERATIONS;
REPAIRS;
MAINTENANCE 8. a. Improvements; Alterations.
Improvements to the Premises shall be installed at
the expense of Tenant only in accordance with plans
and specifications which have been previously
submitted to and approved in writing by Landlord.
After the initial Tenant improvements are made, no
alterations or physical additions in or to the
Premises may be made without Landlord's prior written
consent. Tenant shall not paint or install lighting
or decorations, signs, window or door lettering, or
advertising media of any type on or about the
Premises without the prior written consent of
Landlord, which approval shall not be unreasonably
withheld or delayed. All alterations, additions, or
improvements (whether temporary or permanent in
character, and including without limitation all
air-conditioning equipment and all other equipment
that is in any manner connected to the Building's
plumbing system) made in or upon the Premises, either
by Landlord or Tenant, shall be Landlord's property
at the end of the Term and shall remain on the
Premises without compensation to Tenant; provided,
however, if Tenant obtains Landlord's prior written
approval, Tenant shall have the right to remove trade
fixtures and Tenant-installed improvements during the
Term so long as Tenant repairs any damage caused by
removal. Approval by Landlord of any of Tenant's
drawings and plans and specifications prepared in
connection with any improvements in the Premises
shall not constitute a representation or warranty of
Landlord as to the adequacy or sufficiency of such
drawings, plans and specifications, or the
improvements to which they relate, for any use,
purpose, or condition, but such approval shall merely
be the consent of Landlord as required hereunder.
Notwithstanding anything in this Lease to the
contrary, Tenant shall be responsible for the cost of
all work required to comply with the retrofit
requirements of the Americans with Disabilities Act
of 1990, and all rules, regulations, and guidelines
promulgated thereunder, as the same may be amended
from time to time, necessitated by any installations,
additions, or alterations made in or to the Premises
at the request of or by Tenant or by Tenant's use of
the Premises (other than retrofit work whose cost has
been particularly identified as being payable by
Landlord in an instrument signed by Landlord and
Tenant), regardless of whether such cost is incurred
in connection with retrofit work required in the
Premises (including the Work described in Exhibit D)
or in other areas of the Building.
b. Repairs; Maintenance. Tenant shall
maintain the Premises in a clean, safe, operable,
attractive condition, and shall not permit or allow
to remain any waste or damage to any portion of the
Premises. Landlord shall not be responsible for
cleaning the Premises except as set forth in this
Lease. Tenant shall repair or replace, subject to
Landlord's direction and supervision, any damage to
the Building caused by Tenant or Tenant's agents,
contractors, or invitees. If Tenant fails to make
such repairs or replacements within 10 days after the
occurrence of such damage, then Landlord may make the
same at Tenant's reasonable cost. In lieu of having
Tenant repair any such damage outside of the
Premises, Landlord may repair such damage at Tenant's
reasonable cost. The reasonable cost of any repair or
replacement work performed by Landlord under this
Section 8 shall be paid by Tenant to Landlord within
ten days after Landlord has delivered to Tenant an
invoice therefor.
c. Performance of Work. All work described
in this Section 8 shall be performed only by Landlord
or by contractors and subcontractors approved in
writing by Landlord, which approval shall not be
unreasonably withheld or delayed. Tenant shall cause
all contractors and subcontractors to procure and
maintain insurance coverage against such risks, in
such amounts, and with such companies as Landlord may
reasonably require, and to procure payment and
performance bonds reasonably
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satisfactory to Landlord covering the cost of the
work. All such work shall be performed in accordance
with all legal requirements and in a good and
workmanlike manner so as not to damage the Premises,
the primary structure or structural qualities of the
Building, or plumbing, electrical lines, or other
utility transmission facility. All such work which
may affect the HVAC, electrical system, or plumbing
must be approved by the Building's engineer of
record.
d. Mechanic's Liens. Tenant shall not permit
any mechanic's liens to be filed against the Premises
or the Building for any work performed, materials
furnished, or obligation incurred by or at the
request of Tenant. If such a lien is filed, then
Tenant shall, within ten days after Landlord has
delivered notice of the filing to Tenant, either pay
the amount of the lien or diligently contest such
lien and deliver to Landlord a bond or other security
reasonably satisfactory to Landlord. If Tenant fails
to timely take either such action, then Landlord may
pay the lien claim without inquiry as to the validity
thereof, and any amounts so paid, including expenses
and interest, shall be paid by Tenant to Landlord
within ten days after Landlord has delivered to
Tenant an invoice therefor.
USE 9. Tenant shall continuously occupy and use
the Premises only for the Permitted Use and shall
comply with all laws, orders, rules, and regulations
relating to the use, condition, and occupancy of the
Premises. The Premises shall not be used for any use
which is disreputable or creates extraordinary fire
hazards or results in an increased rate of insurance
on the Building or its contents or the storage of any
hazardous materials or substances. If, because of
Tenant's acts, the rate of insurance on the Building
or its contents increases, then such acts shall be an
Event of Default, Tenant shall pay to Landlord the
amount of such increase on demand, and acceptance of
such payment shall not constitute a waiver of any of
Landlord's other rights. Tenant shall conduct its
business and control its agents, employees, and
invitees in such a manner as not to create any
nuisance or unreasonably interfere with other tenants
or Landlord in its management of the Building.
ASSIGNMENT AND
SUBLETTING 10. a. Transfers; Consent. Tenant shall not,
without the prior written consent of Landlord (which
Landlord agrees will not be unreasonably withheld or
delayed), (i) advertise that any portion of the
Premises is available for lease; (ii) assign,
transfer, or encumber this Lease or any estate or
interest herein, whether directly or by operation of
law, (iii) if Tenant is an entity other than a
corporation whose stock is publicly traded, permit
the transfer of an ownership interest in Tenant so as
to result in a change in the current control of
Tenant, (iv) sublet any portion of the Premises
without Landlord's consent, not to be unreasonably
withheld or delayed, (v) grant any license,
concession, or other right of occupancy of any
portion of the Premises, or (vi) permit the use of
the Premises by any parties other than Tenant (any of
the events listed in clauses (ii) through (vi) being
a "Transfer"). If Tenant requests Landlord's consent
to a Transfer, then Tenant shall provide Landlord
with a written description of all material terms and
conditions of the proposed Transfer, copies of the
proposed documentation, and the following information
about the proposed transferee: name and address;
reasonably satisfactory information about its
business and business history; its proposed use of
the Premises; banking, financial, and other credit
information; and general references sufficient to
enable Landlord to determine the proposed
transferee's creditworthiness and character. Tenant
shall reimburse Landlord for its reasonable
attorneys' fees and other expenses incurred in
connection with considering any request for its
consent to a Transfer. If Landlord consents to a
proposed Transfer, then the proposed transferee shall
deliver to Landlord a written agreement whereby it
expressly assumes the Tenant's obligations hereunder;
however, any transferee of less than all of the space
in the Premises shall be liable only for obligations
under this Lease that are properly allocable to the
space subject to the
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Transfer, and only to the extent of the rent it has
agreed to pay Tenant therefor. Landlord's consent to
a Transfer shall not release Tenant from performing
its obligations under this Lease, but rather Tenant
and its transferee shall be jointly and severally
liable therefor. Landlord's consent to any Transfer
shall not waive Landlord's rights as to any
subsequent Transfers. If an Event of Default occurs
while the Premises or any part thereof are subject to
a Transfer, then Landlord, in addition to its other
remedies, may collect, as long as such Event of
Default remains uncured, directly from such
transferee all rents becoming due to Tenant and apply
such rents against Rent. Tenant authorizes its
transferees to make payments of rent directly to
Landlord upon receipt of notice from Landlord to do
so.
b. Cancellation. Except as provided in
paragraph 10.d. below, Landlord may, within 15 days
after submission of Tenant's written request for
Landlord's consent to a Transfer, cancel this Lease
(or, as to a subletting or assignment, cancel as to
the portion of the Premises proposed to be sublet or
assigned) as of the date the proposed Transfer was to
be effective. If Landlord cancels this Lease as to
any portion of the Premises, then this Lease shall
cease for such portion of the Premises and Tenant
shall pay to Landlord all Rent accrued through the
cancellation date relating to the portion of the
Premises covered by the proposed Transfer and all
brokerage commissions paid or payable by Landlord in
connection with this Lease that are allocable to such
portion of the Premises. Thereafter, Landlord may
lease such portion of the Premises to the prospective
transferee (or to any other person) without liability
to Tenant.
c. Additional Compensation. Except as
provided in paragraph 10.d. below, Tenant shall pay
to Landlord, immediately upon receipt thereof, fifty
percent (50%) of all compensation (less Tenant's
actual reasonable expenses associated therewith)
received by Tenant for a Transfer that exceeds the
Basic Rental and Tenant's share of Excess allocable
to the portion of the Premises covered thereby.
d. Related Entity. If no default on the part
of Tenant has occurred and is continuing, Tenant may
assign this Lease to an entity into which Tenant is
merged or consolidated, to an entity to which
substantially all of Tenant's assets are transferred
or to a Related Entity (hereinafter defined), without
first obtaining Landlord's written consent, if Tenant
notifies Landlord at least ten (10) business days
prior to the proposed transaction, providing
information reasonably satisfactory to Landlord in
order to determine the net worth both of the
successor entity and of Tenant immediately prior to
such assignment, and showing the net worth of the
successor to be sufficient to pay all rental
obligations under this Lease. As used herein,
"Related Entity" means a parent or subsidiary
corporation or any corporation under the common
control of the owner of the controlling interest of
the undersigned Tenant's voting common stock.
INSURANCE; WAIVERS;
SUBROGATION; INDEMNITY 11. a. Insurance. Tenant shall at its
expense procure and maintain throughout the Term the
following insurance policies: (i) comprehensive
general liability insurance in amounts of not less
than a combined single limit of $4,000,000 (the
"Initial Liability Insurance Amount") or such other
amounts as Landlord may from time to time reasonably
require, insuring Tenant, Landlord, and Landlord's
agents against all liability for injury to or death
of a person or persons or damage to property arising
from the use and occupancy of the Premises, (ii)
contractual liability insurance coverage sufficient
to cover Tenant's indemnity obligations hereunder,
(iii) insurance covering the full value of Tenant's
property and improvements, and
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other property (including property of others), in the
Premises, and (iv) business interruption insurance.
Tenant's insurance shall provide primary coverage to
Landlord when any policy issued to Landlord provides
duplicate or similar coverage, and in such
circumstance Landlord's policy will be excess over
Tenant's policy. Tenant shall furnish certificates of
such insurance and such other evidence satisfactory
to Landlord of the maintenance of all insurance
coverages required hereunder, and Tenant shall obtain
a written obligation on the part of each insurance
company to notify Landlord at least 30 days before
cancellation or a material change of any such
insurance. All such insurance policies shall be in
form, and issued by companies, reasonably
satisfactory to Landlord.
b. Waiver; No Subrogation. Landlord shall
not be liable to Tenant or those claiming by,
through, or under Tenant for any injury to or death
of any person or persons or the damage to or theft,
destruction, loss, or loss of use of any property (a
"Loss") caused by casualty, theft, fire, third
parties, or any other matter beyond the control of
Landlord, or for any injury or damage or
inconvenience which may arise through repair or
alteration of any part of the Building, or failure to
make repairs, or from any other cause, except if such
Loss is caused by Landlord's negligence or
misconduct. Landlord and Tenant each waives any claim
it might have against the other for any damage to or
theft, destruction, loss, or loss of use of any
property, to the extent the same is insured against
under any insurance policy that covers the Building,
the Premises, Landlord's or Tenant's fixtures,
personal property, leasehold improvements, or
business, or, in the case of Tenant's waiver, is
required to be insured against under the terms
hereof, regardless of whether the negligence or fault
of the other party caused such loss. Each party shall
cause its insurance carrier to endorse all applicable
policies waiving the carrier's rights of recovery
under subrogation or otherwise against the other
party.
c. Indemnity. Subject to Section 11.b,
Tenant shall defend, indemnify, and hold harmless
Landlord and its agents from and against all claims,
demands, liabilities, causes of action, suits,
judgments, and expenses (including attorneys' fees)
for any Loss arising from any occurrence on the
Premises or from Tenant's failure to perform its
obligations under this Lease (other than a Loss
arising from the negligence or willful misconduct of
Landlord or its agents or employees). Landlord shall
indemnify, defend and hold harmless Tenant and its
officers, directors, employees and agents against any
claim by any third party for damage to person or
Premises or from any other act or omission or
negligence of Landlord or any of Landlord's employees
or agents. Landlord's obligations under this section
shall survive the termination of this Lease. This
indemnity provision shall survive termination or
expiration of this Lease.
d. Landlord's Insurance. Landlord shall
maintain "All-Risk" property insurance at replacement
cost, including loss of rents, on the Building, and
Commercial General Liability insurance policies
covering the common areas of the Building, each with
such terms, coverages and conditions as are normally
carried by reasonably prudent owners of properties
similar to the Building.
SUBORDINATION
ATTORNMENT;
NOTICE TO
LANDLORD'S
MORTGAGEE 12. a. Subordination. This Lease shall be
subordinate to any deed of trust, mortgage, or other
security instrument (a "Mortgage"), or any ground
lease, master lease, or primary lease (a "Primary
Lease"), that now or hereafter covers all or any part
of the Premises (the mortgagee under any Mortgage or
the lessor under any Primary Lease is referred to
herein as "Landlord's Mortgagee"). Landlord's
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Mortgagee may at any time, without notice to or
consent of Tenant, elect to subordinate any such
Mortgage or Primary Lease to this Lease.
b. Attornment. Tenant shall attorn to any
party succeeding to Landlord's interest in the
Premises, whether by purchase, foreclosure, deed in
lieu of foreclosure, power of sale, termination of
lease, or otherwise, upon such party's request, and
shall execute such agreements confirming such
attornment as such party may reasonably request. At
any time that the Building is made subject to any
ground lease or mortgage, Landlord shall cause the
mortgagee or ground lessor to deliver to Tenant a
non-disturbance agreement reasonably acceptable to
Tenant, providing that so long as Tenant is not in
default under this Lease after the expiration of any
applicable notice and cure periods, Tenant may remain
in possession of the Premises under the terms of this
Lease, even if the ground lessor should terminate the
ground lease or if the mortgagee or its successor
should acquire Landlord's title to the Building.
c. Notice to Landlord's Mortgagee. Tenant
shall not seek to enforce any remedy it may have for
any default on the part of the Landlord without first
giving written notice by certified mail, return
receipt requested, specifying the default in
reasonable detail, to any Landlord's Mortgagee whose
address has been given to Tenant, and affording such
Landlord's Mortgagee a reasonable opportunity to
perform Landlord's obligations hereunder.
RULES AND REGULATIONS 13. Tenant shall comply with the rules and
regulations of the Building which are attached hereto
as Exhibit B. Landlord may, from time to time, change
such rules and regulations for the safety, care, or
cleanliness of the Building and related facilities,
provided that such changes are applicable to all
tenants of the Building and will not unreasonably
interfere with Tenant's use of the Premises. Tenant
shall be responsible for the compliance with such
rules and regulations by its employees, agents, and
invitees.
CONDEMNATION 14. a. Taking - Landlord's and Tenant's
Rights. If any part of the Building is taken by right
of eminent domain or conveyed in lieu thereof (a
"Taking"), and such Taking prevents Tenant from
conducting its business in the Premises in a manner
reasonably comparable to that conducted immediately
before such Taking, then Landlord may, at its
expense, relocate Tenant to office space reasonably
comparable to the Premises and reasonably acceptable
to Tenant, provided that Landlord notifies Tenant of
its intention to do so within 60 days after the
Taking. Such relocation may be for a portion of the
remaining Term or the entire Term. Landlord shall
complete any such relocation within 120 days after
Landlord has notified Tenant of its intention to
relocate Tenant. If Landlord does not elect to
relocate Tenant following such Taking, or if the new
premises is not reasonably acceptable to Tenant, then
Tenant may terminate this Lease as of the date of
such Taking by giving written notice to Landlord
within 90 days after the Taking, and Rent shall be
apportioned as of the date of such Taking. If
Landlord does not relocate Tenant and Tenant does not
terminate this Lease, then Rent shall be abated from
the date of such Taking on a reasonable basis as to
that portion of the Premises rendered untenantable by
the Taking.
b. Taking - Landlord's Rights. If any
material portion, but less than all, of the Building
becomes subject to a Taking, or if Landlord is
required to pay any of the proceeds received for a
Taking to Landlord's Mortgagee, then this Lease, at
the option of Landlord, exercised by written notice
to Tenant within 120 days after such Taking, shall
terminate and Rent shall be apportioned as of the
date of such Taking. If Landlord does not so
terminate this Lease and Tenant is not relocated,
then this Lease will continue, but if any portion of
the Premises has been taken, Rent shall xxxxx as
provided in the last sentence of Section 14.a.
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c. Award. If any Taking occurs, then
Landlord shall receive the entire award or other
compensation for the Land, the Building, and other
improvements taken, and Tenant may separately pursue
a claim against the condemnor for the value of
Tenant's personal property which Tenant is entitled
to remove under this Lease, moving costs, loss of
business, and other claims it may have.
FIRE OR OTHER
CASUALTY 15. a. Repair Estimate. If the Premises or
the Building are damaged by fire or other casualty (a
"Casualty"), Landlord shall, within 120 days after
such Casualty, deliver to Tenant a good faith
estimate (the "Damage Notice") of the time needed to
repair the damage caused by such Casualty.
b. Landlord's and Tenant's Rights. If a
material portion of the Premises or the Building is
damaged by Casualty such that Tenant is prevented
from conducting its business in the Premises in a
manner reasonably comparable to that conducted
immediately before such Casualty and Landlord
estimates that the damage caused thereby cannot be
repaired within 180 days after the commencement of
repair, then Landlord may, at its expense, relocate
Tenant to office space reasonably comparable to the
Premises and reasonably acceptable to Tenant,
provided that Landlord notifies Tenant of its
intention to do so in the Damage Notice. Such
relocation may be for a portion of the remaining Term
or the entire Term. Landlord shall complete any such
relocation within 180 days after Landlord has
delivered the Damage Notice to Tenant. If Landlord
does not elect to relocate Tenant following such
Casualty, or if the new premises is not reasonably
acceptable to Tenant, then Tenant may terminate this
Lease by delivering written notice to Landlord of its
election to terminate within 30 days after the Damage
Notice has been delivered to Tenant and Rent shall be
apportioned from the date of such Casualty. If
Landlord does not relocate Tenant and Tenant does not
terminate this Lease, then (subject to Landlord's
rights under Section 15.c) Landlord shall repair the
Building or the Premises, as the case may be, as
provided below, and Rent for the portion of the
Premises rendered untenantable by the damage shall be
abated on a reasonable basis from the date of damage
until the completion of the repair, unless Tenant
caused such damage, in which case, Tenant shall
continue to pay Rent without abatement.
c. Landlord's Rights. If a Casualty damages
a material portion of the Building, and Landlord
makes a good faith determination that restoring the
Premises would be uneconomical, or if Landlord is
required to pay any insurance proceeds arising out of
the Casualty to Landlord's Mortgagee, then Landlord
may terminate this Lease by giving written notice of
its election to terminate within 120 days after the
Damage Notice has been delivered to Tenant, and Basic
Rental hereunder shall be abated as of the date of
the Casualty.
d. Repair Obligation. If neither party
elects to terminate this Lease following a Casualty,
then Landlord shall, within a reasonable time after
such Casualty, commence to repair the Building and
the Premises and shall proceed with reasonable
diligence to restore the Building and Premises to
substantially the same condition as they existed
immediately before such Casualty; however, Landlord
shall not be required to repair or replace any part
of the furniture, equipment, fixtures, and other
improvements which may have been placed by, or at the
request of, Tenant or other occupants in the Building
or the Premises, and Landlord's obligation to repair
or restore the Building or Premises shall be limited
to the extent of the insurance proceeds actually
received by Landlord for the Casualty in question
unless Landlord defaulted in its obligation to carry
the insurance required by Section 11.d. above.
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TAXES 16. Tenant shall be liable for all taxes
levied or assessed against personal property,
furniture, or fixtures placed by Tenant in the
Premises. If any taxes for which Tenant is liable are
levied or assessed against Landlord or Landlord's
property and Landlord elects to pay the same, or if
the assessed value of Landlord's property is
increased by inclusion of such personal property,
furniture or fixtures and Landlord elects to pay the
taxes based on such increase, then Tenant shall pay
to Landlord, upon demand, that part of such taxes for
which Tenant is primarily liable hereunder.
EVENTS OF
DEFAULT 17. Each of the following occurrences shall
constitute an "Event of Default":
a. Tenant's failure to pay Rent, or any
other sums due from Tenant to Landlord under the
Lease (or any other lease executed by Tenant for
space in the Building), when due and the continuance
of such failure for a period of five (5) days;
provided, however, Landlord agrees to give Tenant
written notice of a monetary default three (3) times
in each twelve (12) consecutive month period during
the Term and Tenant will not be deemed to have
committed an Event of Default unless Tenant fails to
make payment within five (5) days following the date
of such notice;
b. Tenant's failure to perform, comply with,
or observe any other agreement or obligation of
Tenant under this Lease (or any other lease executed
by Tenant for space in the Building) and the
continuance of such failure for a period of twenty
(20) days following the date of written notice from
Landlord;
c. The filing of a petition by or against
Tenant (the term "Tenant" shall include, for the
purpose of this Section 17.c, any guarantor of the
Tenant's obligations hereunder) (i) in any bankruptcy
or other insolvency proceeding; (ii) seeking any
relief under any state or federal debtor relief law;
(iii) for the appointment of a liquidator or receiver
for all or substantially all of Tenant's property or
for Tenant's interest in this Lease; or (iv) for the
reorganization or modification of Tenant's capital
structure;
d. Tenant shall desert or vacate the entire
Premises for a period of thirty (30) or more
consecutive days; and
e. The making by Tenant of an assignment for
the benefit of its creditors.
REMEDIES 18. Upon any Event of Default, Landlord may,
in addition to all other rights and remedies afforded
Landlord hereunder or by law or equity, take any of
the following actions:
a. Terminate this Lease by giving Tenant
written notice thereof, in which event, Tenant shall
pay to Landlord the sum of (i) all Rent accrued
hereunder through the date of termination, (ii) all
amounts due under Section 19.a., and (iii) an amount
equal to (A) the total Rent that Tenant would have
been required to pay for the remainder of the Term
discounted to present value at a per annum rate equal
to the "Prime Rate" as published on the date this
Lease is terminated by The Wall Street Journal,
Southeast Edition, in its listing of "Money Rates",
minus (B) the then present fair rental value of the
Premises for such period, similarly discounted; or
b. Terminate Tenant's right to possession of
the Premises without terminating this Lease by giving
written notice thereof to Tenant, in which event
Tenant shall pay to Landlord (i) all Rent and other
amounts accrued hereunder to
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the date of termination of possession, (ii) all
amounts due from time to time under Section 19.a.,
and (iii) all Rent and other sums required hereunder
to be paid by Tenant during the remainder of the
Term, diminished by any net sums thereafter received
by Landlord through reletting the Premises during
such period. Landlord shall use reasonable efforts to
relet the Premises on commercially reasonable terms
(including a term different from the Term, rental
concessions, and alterations to, and improvement of,
the Premises); however, Landlord shall not be
obligated to relet the Premises before leasing other
portions of the Building. Landlord shall not be
liable for, nor shall Tenant's obligations hereunder
be diminished because of, Landlord's failure to relet
the Premises or to collect rent due for such
reletting. Tenant shall not be entitled to the excess
of any consideration obtained by reletting over the
Rent due hereunder. Reentry by Landlord in the
Premises shall not affect Tenant's obligations
hereunder for the unexpired Term; rather, Landlord
may, from time to time, bring action against Tenant
to collect amounts due by Tenant, without the
necessity of Landlord's waiting until the expiration
of the Term. Unless Landlord delivers written notice
to Tenant expressly stating that it has elected to
terminate this Lease, all actions taken by Landlord
to exclude or dispossess Tenant of the Premises shall
be deemed to be taken under this Section 18.b. If
Landlord elects to proceed under this Section 18.b.,
it may at any time elect to terminate this Lease
under Section 18.a.
c. Additionally, without notice, Landlord
may alter locks or other security devices at the
Premises to deprive Tenant of access thereto, and
Landlord shall not be required to provide a new key
or right of access to Tenant.
PAYMENT BY TENANT;
NON-WAIVER 19. a. Payment by Tenant. Upon any Event of
Default, Tenant shall pay to Landlord all reasonable
costs incurred by Landlord (including court costs and
reasonable attorneys' fees and expenses) in (i)
obtaining possession of the Premises, (ii) removing
and storing Tenant's or any other occupant's
property, (iii) repairing, restoring, altering,
remodeling, or otherwise putting the Premises into
condition acceptable to a new tenant, (iv) if Tenant
is dispossessed of the Premises and this Lease is not
terminated, reletting all or any part of the Premises
(including brokerage commissions, cost of tenant
finish work, and other costs incidental to such
reletting), (v) performing Tenant's obligations which
Tenant failed to perform, and (vi) enforcing, or
advising Landlord of, its rights, remedies, and
recourses arising out of the Event of Default.
b. No Waiver. Landlord's acceptance of Rent
following an Event of Default shall not waive
Landlord's rights regarding such Event of Default. No
waiver by Landlord of any violation or breach of any
of the terms contained herein shall waive Landlord's
rights regarding any future violation of such term or
violation of any other term.
c. Reletting. Tenant acknowledges that
Landlord has entered into this Lease in reliance
upon, among other matters, Tenant's agreement and
continuing obligation to pay all Rent due throughout
the Term. To the extent required by law, Landlord
agrees to use reasonable efforts following any Event
of Default to relet the Premises or otherwise
mitigate Landlord's damages arising from such Event
of Default; provided, however, Tenant agrees that
Landlord has no obligation to: (i) relet the Premises
prior to leasing any other space within the Building;
(ii) relet the Premises (A) at a rental rate or
otherwise on terms below market, as then determined
by Landlord in its sole discretion; (B) to any entity
not satisfying Landlord's then standard financial
credit risk criteria; (C) for a use (1) not
consistent with general office purposes; (2) which
would violate then applicable law or any restrictive
covenant or other lease affecting the Building; (3)
which would impose a greater burden upon the
Building's parking, HVAC or other facilities; and/or
(4) which would
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involve any use of Hazardous Materials; (iii) divide
the Premises, install new demising walls or otherwise
reconfigure the Premises to make same more
marketable; (iv) pay any leasing or other commissions
arising from such reletting, unless Tenant
unconditionally delivers Landlord, in good and
sufficient funds, the full amount thereof in advance;
(v) pay, and/or grant any allowance for, tenant
finish or other costs associated with any new lease,
even though same may be amortized over the applicable
lease term, unless Tenant unconditionally delivers
Landlord, in good and sufficient funds, the full
amount thereof in advance; and/or (vi) relet the
Premises, if to do so, Landlord would be required to
alter other portions of the Building, make ADA-type
modifications or otherwise install or replace any
sprinkler, security, safety, HVAC or other Building
operating systems.
LANDLORD'S LIEN 20. Landlord disclaims any statutory or
constitutional lien.
SURRENDER OF
PREMISES 21. No act by Landlord shall be deemed an
acceptance of a surrender of the Premises, and no
agreement to accept a surrender of the Premises shall
be valid unless the same is made in writing and
signed by Landlord. At the expiration or termination
of this Lease, Tenant shall deliver to Landlord the
Premises with all improvements located thereon in
good repair and condition, reasonable wear and tear
(and condemnation and fire or other casualty damage
not caused by Tenant, as to which Sections 14 and 15
shall control) excepted, and shall deliver to
Landlord all keys to the Premises. Provided that
Tenant has performed all of its obligations
hereunder, Tenant may remove all unattached trade
fixtures, furniture, and personal property placed in
the Premises by Tenant (but Tenant shall not remove
any such item which was paid for, in whole or in
part, by Landlord). Additionally, Tenant shall remove
such alterations, additions, improvements, trade
fixtures, equipment, wiring and furniture as Landlord
may request. Tenant shall repair all damage caused by
such removal. All items not so removed shall be
deemed to have been abandoned by Tenant and may be
appropriated, sold, stored, destroyed, or otherwise
disposed of by Landlord without notice to Tenant and
without any obligation to account for such items. The
provisions of this Section 21 shall survive the end
of the Term.
HOLDING OVER 22. If Tenant fails to vacate the Premises
at the end of the Term, then Tenant shall be a tenant
at will and, in addition to all other damages and
remedies to which Landlord may be entitled for such
holding over, Tenant shall pay, in addition to the
other Rent, a daily Basic Rental equal to the greater
of (a) 150% of the daily Basic Rental payable during
the last month of the Term, or (b) 150% of the
prevailing rental rate in the Building for similar
space.
CERTAIN RIGHTS
RESERVED BY
LANDLORD 23. Provided that the exercise of such
rights does not unreasonably interfere with Tenant's
occupancy of the Premises, Landlord shall have the
following rights:
a. To decorate and to make inspections,
repairs, alterations, additions, changes, or
improvements, whether structural or otherwise, in and
about the Building, or any part thereof; for such
purposes, to enter upon the Premises and, during the
continuance of any such work, to temporarily close
doors, entryways, public space, and corridors in the
Building; to interrupt or temporarily suspend
Building services and facilities; and to change the
arrangement and location of entrances or passageways,
doors, and doorways, corridors, elevators, stairs,
restrooms, or other public parts of the Building;
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b. To take such reasonable measures as
Landlord deems advisable for the security of the
Building and its occupants, including without
limitation reasonable searching all persons entering
or leaving the Building; evacuating the Building for
cause, suspected cause, or for drill purposes;
temporarily denying access to the Building; and
closing the Building after normal business hours and
on Saturdays, Sundays, and holidays, subject,
however, to Tenant's right to enter when the Building
is closed after normal business hours under such
reasonable regulations as Landlord may prescribe from
time to time which may include by way of example, but
not of limitation, that persons entering or leaving
the Building, whether or not during normal business
hours, identify themselves to a security officer by
registration or otherwise and that such persons
establish their right to enter or leave the Building;
c. To change the name by which the Building
is designated; and
d. To enter the Premises at all reasonable
hours and upon reasonable prior written notice to
show the Premises to prospective purchasers, lenders,
or tenants.
SUBSTITUTION
SPACE 24. a. From time to time during the Term,
Landlord may substitute for the portion of the
Premises currently located in Suite 210 of the
Building, containing approximately 2,886 rentable
square feet (the "2nd Floor Premises") for other
space at least equal in size to the 2nd Floor
Premises and is located in the Building or in any
other comparable building owned by Landlord or an
affiliate of Landlord (the "Substitution Space").
b. If Landlord exercises such right by
giving Tenant notice thereof ("Substitution Notice")
at least 30 days before the effective date of such
substitution, then (i) the description of the 2nd
Floor Premises shall be replaced by the description
of the Substitution Space; and (ii) all of the terms
and conditions of this Lease shall apply to the
Substitution Space except that if the Substitution
Space contains more square footage than the 2nd Floor
Premises, then the Basic Rental then in effect shall
be increased proportionately (provided that such
increase shall not exceed 10% of the Basic Rental due
for the 2nd Floor Premises) and shall be subject to
adjustment as herein provided. The effective date of
such substitution (the "Substitution Effective Date")
shall be the date specified in the Substitution
Notice or, if Landlord is required to perform tenant
finish work to the Substitution Space under Section
24.c, then the date on which Landlord substantially
completes such tenant finish work. If Landlord is
delayed in performing the tenant finish work by
Tenant's actions (either by Tenant's change in the
plans and specifications for such work or otherwise),
then the Substitution Effective Date shall not be
extended and Tenant shall pay Rent for the
Substitution Space beginning on the date specified in
the Substitution Notice.
c. Tenant may either accept possession of
the Substitution Space in its "as is" condition as of
the Substitution Effective Date or require Landlord
to alter the Substitution Space in the same manner as
the 2nd Floor Premises were altered or were to be
altered. Tenant shall deliver to Landlord written
notice of its election within ten days after the
Substitution Notice has been delivered to Tenant. If
Tenant fails to timely deliver notice of its election
or if an Event of Default then exists, then Tenant
shall be deemed to have elected to accept possession
of the Substitution Space in its "as is" condition.
If Tenant timely elects to require Landlord to alter
the Substitution Space, then Tenant shall continue to
occupy the 2nd Floor Premises (upon all of the terms
of this Lease) until the Substitution Effective Date.
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d. Tenant shall move from the 2nd Floor
Premises into the Substitution Space and shall
surrender possession of the 2nd Floor Premises as
provided in Section 21 by the Substitution Effective
Date. If Tenant occupies the 2nd Floor Premises after
the Substitution Effective Date, then Tenant's
occupancy of the 2nd Floor Premises shall be a
tenancy at will (and, without limiting all other
rights and remedies available to Landlord, including
instituting a forcible detainer suit), Tenant shall
pay Basic Rental for the 2nd Floor Premises as
provided in Section 22 and all other Rent due
therefor until such occupancy ends; such amounts
shall be in addition to the Rent due for the
Substitution Space.
e. If Landlord exercises its substitution
right, then Landlord shall reimburse Tenant for
Tenant's reasonable out-of-pocket expenses for moving
Tenant's furniture, equipment, supplies and telephone
equipment from the 2nd Floor Premises to the
Substitution Space and for reprinting Tenant's
stationery of the same quality and quantity of
Tenant's stationery supply on hand immediately prior
to Landlord's notice to Tenant of the exercise of
this relocation right. If the Substitution Space
contains more square footage than the 2nd Floor
Premises, and, if the 2nd Floor Premises were
carpeted, Landlord shall supply and install an equal
amount of carpeting of the same or equivalent quality
and color.
ENVIRONMENTAL
REQUIREMENTS 25. a. General. Except for such incidental
cleaning agents and solutions or maintenance
materials used in the ordinary course or materials
and goods stored as part of Tenant's business
operations (but such use and storage shall be in
compliance with all Environmental Requirements),
Tenant shall not permit or cause any party to bring
any Hazardous Material upon the Premises or store or
use any Hazardous Material in or about the Premises
without Landlord's prior written consent. Tenant, at
its sole cost and expense, shall operate its business
in the Premises in compliance with all Environmental
Requirements, and will obtain, comply with, and
properly maintain all permits and licenses, or
applications required by Environmental Requirements
for its operations. The term "Environmental
Requirements" means all applicable present and future
statutes, regulations, ordinances, rules, codes, or
other similar enactments of any governmental
authority of agency, and any applicable judicial,
administrative or regulatory decrees, judgments,
orders, or policies regulating or relating to any
Hazardous Materials or pertaining to health, safety,
industrial hygiene, or the environmental conditions
on, under, or about the Premises or the environment,
including, without limitation, the following: the
Comprehensive Environmental Response, Compensation
and Liability Act ("CERCLA"); the Resource
Conservation and Recovery Act; the Toxic Substances
Control Act; the Clean Air Act; the Federal Water
Pollution Control Act; the Federal Hazardous
Materials Transportation Act; and all state and local
counterparts, supplements or additions thereto, and
any regulations or policies promulgated or issued
thereunder. The term "Hazardous Materials" means and
includes petroleum (as defined in CERCLA), asbestos
and any substance, material, waste, pollutant, or
contaminant listed or defined as hazardous or toxic,
under any Environmental Requirements.
b. Indemnity. Tenant shall indemnify,
defend, and hold Landlord and its partners, officers,
directors, agents and employees harmless from and
against any and all manner of losses (including,
without limitation, diminution in value of the
Premises or the Building and loss of rental income
from the Building), claims, demands, actions, suits,
damages (including, without limitation, punitive
damages), fines, penalties, administrative and
judicial proceedings, judgments, settlements,
expenses (including, without limitation, consultant
fees, attorneys' fees, or expert fees) which arise
during or after the Lease Term which are brought or
recoverable against, or suffered or incurred by
Landlord or such parties as a result of any breach of
the obligations under this Section 25 or
noncompliance with any Environmental Requirement by
Tenant, it agents, employees, contractors,
subtenants, or invitees,
-17-
regardless of whether Tenant had knowledge of such
noncompliance. The indemnification and hold harmless
obligations of Tenant shall survive any termination
of this Lease, any renewal, expansion or amendment of
this Lease and/or the execution and delivery of any
new lease with Tenant covering all or any portion of
the Project.
c. Assessments. Landlord shall have access
to, and a right to perform inspections and tests of,
the Premises as it may require to determine Tenant's
compliance with Environmental Requirements and
Tenant's obligations under this Section 25. Access
shall be granted to Landlord upon Landlord's prior
notice to Tenant and at such times so as to minimize,
so far as may be reasonable under the circumstances,
any disturbance to Tenant's operations. Such
inspections and tests shall be conducted at
Landlord's expense, unless such inspections or tests
reveal the presence of Hazardous Material or reveal,
based on Landlord's reasonable determination, that
Tenant has not complied with all Environmental
Requirements, in which case Tenant shall immediately,
upon demand, reimburse Landlord for the reasonable
cost of such inspection and tests. At the expiration
or earlier termination of the Lease, Landlord shall
have the right, at its option and at Tenant's sole
cost and expense, to undertake an environmental
assessment of the Premises to determine Tenant's
compliance with all Environmental Requirements.
Landlord and Tenant agree that Landlord's receipt of
or satisfaction with any environmental assessment in
no way waives any rights that Landlord holds against
Tenant.
MISCELLANEOUS 26. a. Landlord Transfer. Landlord may
transfer, in whole or in part, the Building and any
of its rights under this Lease. If Landlord assigns
its rights under this Lease, then Landlord shall
thereby be released from any further obligations
hereunder, except the obligation to return to Tenant
any Security Deposit not delivered to its transferee.
Landlord agrees to give Tenant written notice if
Landlord sells the Building, in accordance with
applicable laws.
b. Landlord's Liability. The liability of
Landlord to Tenant for any default by Landlord under
the terms of this Lease shall be limited to Tenant's
actual direct, but not consequential, damages
therefor and shall be recoverable from the interest
of Landlord in the Building and the Land, and
Landlord shall not be personally liable for any
deficiency. This section shall not be deemed to limit
or deny any remedies which Tenant may have in the
event of default by Landlord hereunder which do not
involve the personal liability of Landlord.
c. Force Majeure. Other than for Tenant's
monetary obligations under this Lease and obligations
which can be cured by the payment of money (e.g.,
maintaining insurance), whenever a period of time is
herein prescribed for action to be taken by either
party hereto, such party shall not be liable or
responsible for, and there shall be excluded from the
computation for any such period of time, any delays
due to strikes, riots, acts of God, shortages of
labor or materials, war, governmental laws,
regulations, or restrictions, or any other causes of
any kind whatsoever which are beyond the control of
such party.
d. Brokerage. Landlord and Tenant each
warrant to the other that it has not dealt with any
broker or agent in connection with the negotiation or
execution of this Lease except Xxxxxxx Group/DDR
L.L.C. and CB Xxxxxxx Xxxxx ("Broker"). Landlord will
pay all commissions due Broker pursuant to a separate
written agreement with Broker. Tenant and Landlord
shall each indemnify the other against all costs,
expenses, attorneys' fees, and other liability for
commissions or other compensation claimed by any
broker or agent claiming the same by, through, or
under the indemnifying party.
-18-
e. Estoppel Certificates. From time to time,
Tenant shall furnish to any party designated by
Landlord, within ten days after Landlord has made a
request therefor, a certificate signed by Tenant
confirming and containing such factual certifications
and representations as to this Lease as Landlord may
reasonably request.
f. Notices. All notices and other
communications given pursuant to this Lease shall be
in writing and shall be (i) mailed by first class,
United States Mail, postage prepaid, certified, with
return receipt requested, and addressed to the
parties hereto at the address specified in the Basic
Lease Information, (ii) hand delivered to the
intended address, (iii) sent by reputable overnight
courier service (e.g., Federal Express or DHL); or
(iv) sent by prepaid telegram, cable, facsimile
transmission, or telex followed by a confirmatory
letter. Notice sent by certified mail, postage
prepaid, shall be effective three business days after
being deposited in the United States Mail; all other
notices shall be effective upon delivery to the
address of the addressee. The parties hereto may
change their addresses by giving notice thereof to
the other in conformity with this provision.
g. Separability. If any clause or provision
of this Lease is illegal, invalid, or unenforceable
under present or future laws, then the remainder of
this Lease shall not be affected thereby and in lieu
of such clause or provision, there shall be added as
a part of this Lease a clause or provision as similar
in terms to such illegal, invalid, or unenforceable
clause or provision as may be possible and be legal,
valid, and enforceable.
h. Amendments; and Binding Effect. This
Lease may not be amended except by instrument in
writing signed by Landlord and Tenant. No provision
of this Lease shall be deemed to have been waived by
Landlord unless such waiver is in writing signed by
Landlord, and no custom or practice which may evolve
between the parties in the administration of the
terms hereof shall waive or diminish the right of
Landlord to insist upon the performance by Tenant in
strict accordance with the terms hereof. The terms
and conditions contained in this Lease shall inure to
the benefit of and be binding upon the parties
hereto, and upon their respective successors in
interest and legal representatives, except as
otherwise herein expressly provided. This Lease is
for the sole benefit of Landlord and Tenant and,
other than Landlord's Mortgagee, no third party shall
be deemed a third party beneficiary hereof.
i. Quiet Enjoyment. Provided Tenant has
performed all of the terms and conditions of this
Lease to be performed by Tenant, Tenant shall
peaceably and quietly hold and enjoy the Premises for
the Term, without hindrance from Landlord or any
party claiming by, through, or under Landlord,
subject to the terms and conditions of this Lease.
j. Joint and Several Liability. If there is
more than one Tenant, then the obligations hereunder
imposed upon Tenant shall be joint and several. If
there is a guarantor of Tenant's obligations
hereunder, then the obligations hereunder imposed
upon Tenant shall be the joint and several
obligations of Tenant and such guarantor, and
Landlord need not first proceed against Tenant before
proceeding against such guarantor nor shall any such
guarantor be released from its guaranty for any
reason whatsoever.
k. Captions. The captions contained in this
Lease are for convenience of reference only, and do
not limit or enlarge the terms and conditions of this
Lease.
l. No Merger. There shall be no merger of
the leasehold estate hereby created with the fee
estate in the Premises or any part thereof if the
same
-19-
person acquires or holds, directly or indirectly,
this Lease or any interest in this Lease and the fee
estate in the leasehold Premises or any interest in
such fee estate.
m. No Offer. The submission of this Lease to
Tenant shall not be construed as an offer, nor shall
Tenant have any rights under this Lease unless
Landlord executes a copy of this Lease and delivers
it to Tenant.
n. Exhibits. All exhibits and attachments
attached hereto are incorporated herein by this
reference.
Exhibit A - Outline of Premises
Exhibit B - Building Rules and Regulations
Exhibit C - Parking
Exhibit D - Tenant Finish Work: Allowance
Exhibit E - Extension Option
Exhibit F - Emergency Generator
Exhibit G - Right of First Offer
Exhibit H - Signage
o. Entire Agreement. This Lease constitutes
the entire agreement between Landlord and Tenant
regarding the subject matter hereof and supersedes
all oral statements and prior writings relating
thereto. Except for those set forth in this Lease, no
representations, warranties, or agreements have been
made by Landlord or Tenant to the other with respect
to this Lease or the obligations of Landlord or
Tenant in connection therewith.
p. Usufruct Only. This Lease Agreement shall
create the relationship of landlord and tenant only
as between Landlord and Tenant. No estate shall pass
out of the Landlord hereunder. Tenant shall have only
a usufruct, not subject to levy and sale, and not
assignable by Tenant except as otherwise provided
herein.
EXCEPT AS OTHERWISE PROVIDED IN THE LEASE, LANDLORD AND TENANT EXPRESSLY
DISCLAIM ANY IMPLIED WARRANTY THAT THE PREMISES ARE SUITABLE FOR TENANT'S
INTENDED COMMERCIAL PURPOSE, AND TENANT'S OBLIGATION TO PAY RENT HEREUNDER IS
NOT DEPENDENT UPON THE CONDITION OF THE PREMISES OR THE PERFORMANCE BY LANDLORD
OF ITS OBLIGATIONS HEREUNDER, AND, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED
HEREIN, TENANT SHALL CONTINUE TO PAY THE RENT, WITHOUT ABATEMENT, SETOFF,
DEDUCTION, NOTWITHSTANDING ANY BREACH BY LANDLORD OF ITS DUTIES OR OBLIGATIONS
HEREUNDER, WHETHER EXPRESS OR IMPLIED.
DATED as of the date first above written.
LANDLORD TENANT
OLYMPIA PROPERTIES, L.L.C., INTERTECH MANAGEMENT GROUP, INC.
a Washington limited liability company
By: Bartwood, L.L.C., its By: /s/ Xxxx X. Xxxxxx
managing member ------------------------------
Name: Xxxx X. Xxxxxx
Title: VP Finance & CFO
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Regional Director
-20-
EXHIBIT A
Maps omitted
A-1
EXHIBIT B
BUILDING RULES AND REGULATIONS
The following rules and regulations shall apply to the Premises, the
Building, the parking garage associated therewith, the Land and the
appurtenances thereto:
1. Sidewalks, doorways, vestibules, halls, stairways, and other similar
areas shall not be obstructed by tenants or used by any tenant for purposes
other than ingress and egress to and from their respective leased premises and
for going from one to another part of the Building.
2. Plumbing, fixtures and appliances shall be used only for the
purposes for which designed, and no sweepings, rubbish, rags or other unsuitable
material shall be thrown or deposited therein. Damage resulting to any such
fixtures or appliances from misuse by a tenant or its agents, employees or
invitees, shall be paid by such tenant.
3. No signs, advertisements or notices shall be painted or affixed on
or to any windows or doors or other part of the Building without the prior
written consent of Landlord, which consent shall not be unreasonably withheld or
delayed. No nails, hooks or screws shall be driven or inserted in any part of
the Building except by Building maintenance personnel, except for reasonable and
customary office art and decorations. No curtains or other window treatments
shall be placed between the glass and the Building standard window treatments.
4. Landlord shall provide and maintain an alphabetical directory for
all tenants in the main lobby of the Building.
5. Landlord shall provide all door locks in each tenant's leased
premises, at the cost of such tenant, and no tenant shall place any additional
door locks in its leased premises without Landlord's prior written consent.
Landlord shall furnish to each tenant a reasonable number of keys to such
tenant's leased premises, at such tenant's cost, and no tenant shall make a
duplicate thereof. Any additional or replacement access cards will be provided
at $18 per card or Landlord's then customary charge, whichever is greater.
6. Movement in or out of the Building of furniture or office equipment,
or dispatch or receipt by tenants of any bulky material, merchandise or
materials which require use of elevators or stairways, or movement through the
Building entrances or lobby shall be conducted under Landlord's supervision at
such times and in such a manner as Landlord may reasonably require. Each tenant
assumes all risks of and shall be liable for all damage to articles moved and
injury to persons or public engaged or not engaged in such movement, including
equipment, property and personnel of Landlord if damaged or injured as a result
of acts in connection with carrying out this service for such tenant.
7. Landlord may prescribe weight limitations and determine the
locations for safes and other heavy equipment or items, which shall in all cases
be placed in the Building so as to distribute weight in a manner acceptable to
Landlord which may include the use of such supporting devices as Landlord may
require. All damages to the Building caused by the installation or removal of
any property of a tenant, or done by a tenant's property while in the Building,
shall be repaired at the expense of such tenant.
8. Corridor doors, when not in use, shall be kept closed. Nothing shall
be swept or thrown into the corridors, halls, elevator shafts or stairways. No
birds or animals shall be brought into or kept in, on or about any tenant's
leased premises. No portion of any tenant's leased premises shall at any time be
used or occupied as sleeping or lodging quarters.
9. Tenant shall cooperate with Landlord's employees in keeping its
leased premises neat and clean. Tenants shall not employ any person for the
purpose of such cleaning other than the Building's cleaning and maintenance
personnel.
B-1
10. To ensure orderly operation of the Building (except for soft drink
delivery and daily newspaper delivery), no ice, mineral or other water, towels,
etc. shall be delivered to any leased area except by persons approved by
Landlord.
11. Tenant shall not make or permit any improper, objectionable or
unpleasant noises or odors in the Building or otherwise interfere in any way
with other tenants or persons having business with them.
12. No machinery of any kind (other than normal office equipment) shall
be operated by any tenant on its leased area without Landlord's prior written
consent, nor shall any tenant use or keep in the Building any flammable or
explosive fluid or substance.
13. Except if caused by the willful misconduct or negligence of
Landlord's agents or employees, Landlord will not be responsible for lost or
stolen personal property, money or jewelry from tenant's leased premises or
public or common areas regardless of whether such loss occurs when the area is
locked against entry or not.
14. No vending or dispensing machines of any kind except break areas
shown on approved plans may be maintained in any leased premises without the
prior written permission of Landlord.
15. All mail chutes located in the Building shall be available for use
by Landlord and all tenants of the Building according to the rules of the United
States Postal Service.
16. Landlord may designate the Building a "no-smoking" building and
restrict or prohibit smoking anywhere within or outside the Building.
B-2
EXHIBIT C
PARKING
Tenant shall pay for and be permitted to use in the aggregate of 4.6
per 1,000 rentable square feet in the Premises vehicular parking spaces, of
which seven (7) of such spaces shall be reserved vehicular parking spaces and
the remainder of which shall be non-reserved vehicular parking spaces in the
parking garage or other parking facilities associated with the Building (the
"Parking Facility"), all during the initial Term at the rate of (a) $-0- per
month for each non-reserved space; and (b) $-0-per month for each reserved
space, subject to adjustment by Landlord upon prior notice to Tenant. Tenant's
use of such spaces remains subject to such terms, conditions and regulations as
are from time to time charged or applicable to patrons of the Parking Facility.
If, for any reason, Landlord fails or is unable to provide, or Tenant is not
permitted to use, all or any portion of the parking spaces to which it is
entitled hereunder, then Tenant's obligation to pay for such spaces shall be
abated for so long as Tenant does not have the use thereof; this abatement shall
be in full settlement of all claims that Tenant might otherwise have against
Landlord because of Landlord's failure or inability to provide Tenant with such
parking spaces. If Tenant sublets any portion of the Premises or assigns any of
its interest in this Lease, then the parking spaces allocated to Tenant
hereunder shall be reduced to the extent the ratio between the rentable square
feet of the Premises and the parking spaces granted to Tenant hereunder exceeds
the Building standard ratio of parking space per rentable square foot as
established by Landlord from time to time. Tenant must pay for all parking
spaces even though same may not be used during any month.
C-1
EXHIBIT D
TENANT FINISH-WORK: ALLOWANCE
1. Except as set forth on this Exhibit, Tenant accepts the Premises
"AS-IS" and acknowledges that Landlord has no obligation to make or otherwise
pay for any improvements, alterations or repairs thereto.
2. Landlord will have prepared the Working Drawings for the Premises.
Tenant will review and approve the Working Drawings within five (5) days
following receipt thereof. As used herein, "Working Drawings" shall mean the
final working drawings approved by Landlord, as amended from time to time by any
approved changes thereto, and "Work" shall mean all improvements to be
constructed in accordance with and as indicated on the Working Drawings.
Approval by Landlord of the Working Drawings shall not be a representation or
warranty of Landlord that such drawings are adequate for any use, purpose, or
condition, or that such drawings comply with any applicable law or code, but
shall merely be the consent of Landlord to the performance of the Work. Tenant
shall, at Landlord's request, sign the Working Drawings to evidence its review
and approval thereof. All changes in the Work must receive the prior written
approval of Landlord, and in the event of any such approved change Tenant shall,
upon completion of the Work, furnish Landlord with an accurate, reproducible
"as-built" plan (e.g., sepia) of the improvements as constructed, which plan
shall be incorporated into this Lease by this reference for all purposes.
3. Landlord will cause the Work to be performed by contractors and
subcontractors approved in writing by Landlord. Landlord agrees that Tenant will
be a third party beneficiary of any representations, warranties, and guaranties
provided by any contractor or subcontractor in connection with the Work.
4. If a delay in the performance of the Work occurs (such delay being
referred to as a "Tenant Delay") (a) because Tenant does not timely approve the
Working Drawings; (b) because of any change by Tenant to the Working Drawings,
(c) because of any specification by Tenant of materials or installations in
addition to or other than Landlord's standard finish-out materials, or (d) if
Tenant, any contractor or subcontractor, or Tenant's agents otherwise delays
completion of the Work, then, notwithstanding any provision to the contrary in
this Lease, Tenant's obligation to pay Basic Rental and Tenant's share of Excess
shall commence on the scheduled Commencement Date. Landlord agrees to use
commercially reasonable efforts to cause the Work as set forth in Exhibit D to
be completed on or before the scheduled Commencement Date to the Premises. In
connection therewith, and subject to delays caused by Force Majeure (as defined
in the Lease) and Tenant Delays (as defined above), Landlord agrees to
substantially complete the Work on or before December 1, 1999. Subject to the
limitations set forth in this Section, and to the extent that there are no
delays caused by Force Majeure or any Tenant Delays, if the Work is not
substantially completed by December 1, 1999, Landlord agrees to pay to Tenant
$516.13 (the "Penalty Amount") for each day thereafter that the Work is not
completed (the total of such days being referred to herein as the "Penalty
Period"). Notwithstanding the foregoing, in the event that the Work is not
substantially completed within 75 days from December 1, 1999 (i.e., February 14,
2000), either Landlord or Tenant (as Tenant's sole remedy with no additional
penalties accruing) may terminate this Lease. The parties agree that Landlord's
maximum exposure during the Penalty Period shall be $39,225.81.
5. Tenant shall bear the entire cost of performing the Work (including,
without limitation, space planning and construction document fees, design of the
Work and preparation of the Working Drawings, costs of construction labor and
materials, electrical usage during construction, additional janitorial services,
approved signage, related taxes and insurance costs, all of which costs are
herein collectively called the "Total Construction Costs") in excess of the
Construction Allowance (hereinafter defined). Upon approval of the Working
Drawings and selection of a contractor, Tenant shall promptly (a) execute a
reasonably satisfactory work order agreement prepared by Landlord which
identifies such drawings, itemizes the Total Construction Costs and sets forth
the Construction Allowance, and (b) pay to Landlord 50% of the amount by which
the estimated Total Construction Costs exceed the Construction Allowance. Tenant
shall pay to Landlord, within 10 days after Landlord's delivery to Tenant of an
appropriate invoice, and after substantial completion of the Work as evidenced
by a certificate of occupancy, an amount equal to the Total Construction Costs
(as adjusted for any approved changes to the Work), less (i) the amount of the
payments already made by Tenant, (ii) the amount of the Construction Allowance,
and
D-1
(iii) the cost reasonably estimated by Landlord for completing all "punch list"
items; finally, upon completion of the punch list items, Tenant shall pay to
Landlord the costs incurred in completing the same.
6. Landlord shall provide to Tenant a construction allowance (the
"Construction Allowance") equal to the lesser of (a) $10.00 per rentable square
foot in the Premises or (b) the Total Construction Costs, however, if Tenant or
its agent is managing the performance of the Work, then Tenant shall not become
entitled to full credit for the Construction Allowance until the Work has been
substantially completed and Tenant has caused to be delivered to Landlord (i)
all invoices from contractors, subcontractors, and suppliers evidencing the cost
of performing the Work, together with lien waivers from such parties, and a
consent of the surety to the finished Work (if applicable) and (ii) a
certificate of occupancy from the appropriate governmental authority, if
applicable to the Work, or evidence of governmental inspection and approval of
the Work. Any unspent portion of the Construction Allowance may be retained by
Landlord without credit or reimbursement to Tenant.
7. Landlord or its affiliate shall supervise the Work, make
disbursements required to be made to the contractor, and act as a liaison
between the contractor and Tenant and coordinate the relationship between the
Work, the Building, and the Building's systems. In consideration for Landlord's
construction supervision services, Tenant shall pay to Landlord a construction
supervision fee equal to three percent (3%) of the Total Construction Costs -
which may be deducted from the Construction Allowance.
8. To the extent not inconsistent with this Exhibit, Section 8a. of
this Lease shall govern the performance of the Work and the Landlord's and
Tenant's respective rights and obligations regarding the improvements installed
pursuant thereto.
D-2
EXHIBIT E
EXTENSION OPTION
1. Provided no Event of Default exists at the time of such election,
Tenant may renew this Lease for one (1) additional period of five (5) on the
same terms provided in this Lease (except that Exhibits F, G and H shall not be
applicable and as set forth below), by delivering written notice of ("Tenant's
Notice") the exercise thereof to Landlord not later than nine (9) months prior
to the end of the initial Term. On or before the commencement date of the
extended Term, Landlord and Tenant shall execute an amendment to this Lease
extending the Term on the same terms provided in this Lease, except as follows:
(a) The Basic Rental payable for each month during each such
extended Term shall be the prevailing rental rate in the
Building and other comparable buildings in the metropolitan
area in which the Building is located at the commencement of
such extended Term, for space of equivalent quality, size,
utility and location, with the length of the extended Term to
be taken into account and any then applicable step-up
adjustments in rent to be considered and averaged over the
applicable term;
(b) Tenant shall have no further renewal options unless expressly
granted by Landlord in writing; and
(c) Landlord shall lease to Tenant the Premises in their
then-current condition, and Landlord shall not provide to
Tenant any allowances (e.g., moving allowance, construction
allowance, and the like) or other tenant inducements.
2. Within thirty (30) days following delivery of Tenant's Notice,
Landlord shall deliver to Tenant a written notice ("Landlord's Notice")
specifying the Basic Rental rate per rentable square foot per annum for the
applicable additional term. Tenant shall have ten (10) days following delivery
of Landlord's Notice to notify Landlord in writing ("Tenant's Renewal Notice")
of (i) Tenant's exercise of its right to renew the Lease at the Basic Rental
rate proposed by Landlord, or (ii) Tenant's election not to exercise its right
to renew the Lease. Tenant's failure to timely deliver Tenant's Renewal Notice
shall be deemed acceptance by Tenant of the Basic Rental rate proposed by
Landlord.
3. Tenant's rights under this Exhibit shall terminate if (i) this Lease
or Tenant's right to possession of the Premises is terminated, (ii) Tenant
assigns any of its interest in this Lease or sublets any portion of the Premises
without the approval of Landlord, or (iii) Tenant fails to timely exercise its
option under this Exhibit, time being of the essence with respect to Tenant's
exercise thereof.
E-1
EXHIBIT F
EMERGENCY GENERATOR
A. Tenant shall have the right, at Tenant's sole cost and expense, to
install and maintain an emergency generator in a space on a concrete
pad outside of the Building designated by Landlord. Tenant shall
maintain, at Tenant's sole cost and expense, a fence around such
emergency generator. Additionally, subject to Landlord's prior written
approval of plans and specifications relating thereto, which shall not
be unreasonably withheld or delayed, Tenant shall have the right to
install such wire, conduits, cables and other materials as necessary to
connect such emergency generator to the Premises (the emergency
generator and connecting material, being collectively referred to as
the "Generator Installation"). Tenant shall be responsible for all
costs and expenses arising from and relating to the Generator
Installation. The Generator Installation shall be in compliance with
all applicable federal, state and local laws and ordinances and Tenant
shall indemnify and hold Landlord harmless from and against any and all
loss, cost, claim and liability arising from Tenant's failure to
satisfy such requirement. Landlord agrees that Tenant and
representatives designated by Tenant and approved by Landlord shall
have reasonable access to the Generator Installation in order to
install, operate, maintain, inspect and remove as required, the
Generator Installation, except when reasonable safety and security
requirements of Landlord preclude such access. Landlord reserves the
right to lease space in or out of the Building to other tenants, as
Landlord may desire, for any purpose, including the installation and
operation of a separate emergency generator. Notwithstanding any
contrary provision contained herein, Landlord shall have the right to
relocate, at Landlord's sole expense, upon sixty (60) days prior
written notice, the Generator Installation to another location in the
Building or on land adjacent thereto, as Landlord shall elect. Upon
installation, Tenant shall pay to Landlord a monthly charge of $250.00
per month, as rental, for the generator, due and payable monthly in
advance with the Base Rent without offset or deduction whatsoever.
B. Tenant agrees to indemnify and hold Landlord harmless from and against
any and all loss, cost, claim and liability (including reasonable
attorneys' fees) for injuries to all persons and for damage to or loss
of all property arising or alleged to arise from the installation,
maintenance, operation, existence and/or removal of the Generator
Installation.
C. Upon the expiration or earlier termination of the Term of this Lease,
Tenant shall remove the Generator Installation and related improvements
in a good and workmanlike manner, and Tenant will repair any damage
occasioned by such removal. If Tenant fails to remove the Generator
Installation within thirty (30) days after the expiration or earlier
termination of the Term of this Lease, Landlord shall have the right,
but not the obligation, to elect either (i) to remove the Generator
Installation at Tenant's cost and expense, and Landlord shall have no
liability for the return of, or damage to, the Generator Installation,
or (ii) to treat the Generator Installation as abandoned by Tenant.
D. Tenant shall be permitted the right to have a non-exclusive license to
install an 18-inch line of site satellite dish on rooftop, provided
Tenant enters into Landlord's standard form rooftop license agreement.
F-1
EXHIBIT G
RIGHT OF FIRST OFFER
Subject to Subsection B below, and subject to any expansion or renewal options
of any current tenant in the Building (a "Prior Tenant"), Landlord hereby grants
to Tenant for the Term of the Lease a right of first offer for Suite 200
containing 3,378 rentable square feet of area as shown on Exhibit A hereto
(collectively, the "ROFO Space"), to be exercised in accordance with Subsection
A below.
A. If any ROFO Space becomes available for lease to anyone other than a
Prior Tenant, Landlord shall so notify Tenant ("Landlord's ROFO Notice")
identifying the available ROFO Space (the "Subject ROFO Space"). Landlord's ROFO
Notice may be given up to sixteen (16) months in advance of such availability
and shall contain the terms upon which Landlord intends to offer the Subject
ROFO Space for lease to the market. Tenant shall notify Landlord within ten (10)
days of receipt of Landlord's ROFO Notice whether it desires to lease the
Subject ROFO Space on the terms set forth in Landlord's ROFO Notice. If Tenant
does not notify Landlord within said 10-day period that it will lease the
Subject ROFO Space, Tenant shall be deemed to have refused the Subject ROFO
Space. After any refusal, Tenant shall have no further right of first offer for
such Subject ROFO Space and Landlord shall be free to lease such space to any
party for any term. If Tenant exercises its right of first offer with respect to
the Subject ROFO Space, such space shall be added to the Premises for all
purposes of this lease for the remaining Term of the Lease (but in no event less
than two (2) years) on (a) the terms specified in Landlord's ROFO Notice, and
(b) the terms of this Lease to the extent that they do not conflict with the
terms specified in Landlord's ROFO Notice, except that the terms of Landlord's
ROFO Notice shall not apply during any Renewal Term, and instead, the terms of
the Lease applying to the remainder of the Premises during the Renewal Term
shall also apply to the Subject ROFO Space.
B. Tenant's right of first offer is subject to the conditions that: (i)
on the date that Tenant delivers its notice exercising its right of first offer,
Tenant is not in default under this Lease after the expiration of any applicable
notice and cure periods, and (ii) Tenant shall not have assigned the Lease, or
sublet any portion of the Premises under a sublease which is in effect at any
time during the period commencing with Tenant's delivery of its notice and
ending on the date the ROFO Space is added to the Premises.
C. Promptly after Tenant's exercise of its right of first offer,
Landlord shall execute and deliver to Tenant an amendment to the Lease to
reflect changes in the Premises, Base Rent, Tenant's Proportionate Share and any
other appropriate terms changed by the addition of the ROFO Space. Within 15
days thereafter, Tenant shall execute and return the amendment.
G-1
Re: Lakeview Officer Center
00000 Xxxxx Xxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxx
ASSIGNMENT OF LEASE
THE STATE OF MISSOURI ss.
ss. KNOW ALL MEN BY THESE PRESENTS
CITY OF CHESTERFIELD
THIS ASSIGNMENT OF LEASE (this "Assignment") is made and entered into
as of (but not necessarily on) the 20th day of December, 2002, by Albacore
Holdings, Inc. (formerly known as INTERTECH MANAGEMENT GROUP, INC.), a Missouri
corporation ("Assignor") and XXXXXX SOLUTIONS, INC., a Delaware corporation
("Assignee").
R E C I T A L S:
- - - - - - - -
A. Olympia Properties, L.L.C., a Washington limited liability company
("Landlord") and Assignor are the parties to that certain Lease (the "Lease"),
dated as of September 16, 1999, respecting certain premises containing
approximately 19,981 rentable square feet of area ("Premises") in the building
located at 00000 Xxxxx Xxxxx Xxxxx, Xxxxxxxxxxxx, Xxxxxxxx ("Building").
B. Assignor desires to assign, and Assignee desires to assume, all of
Assignor's right, title and interest as tenant under the Lease.
NOW THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby covenant and agree as follows:
1. Assignor hereby sells, assigns and transfers to Assignee, and
Assignee hereby acquires from Assignor, all of Assignor's right, title and
interest as tenant in and to the Lease, together with the security deposit in
the sum of $31,636.58 deposited thereunder. Assignor warrants and represents
that it is not in default under the Lease, that Assignor has not encumbered the
Lease by any prior transfer, assignment, mortgage or other encumbrance.
2. Assignee hereby agrees to assume and perform all of the covenants,
duties and obligations of Assignor under the Lease whensoever occurring to the
same extent as if Assignee were originally named "Tenant" under the Lease. Such
liability of Assignee under the Lease shall be joint and several with any
guarantor of the Lease or Assignee's obligations hereunder or thereunder.
Assignor shall have no obligation to Assignee whatsoever to perform any of the
obligations of "Tenant" under the Lease, it being understood and acknowledged
hereby that Assignee shall be responsible for the performance of all such
obligations hereunder and under the Lease; provided, however, that Assignor
shall retain the right, upon reasonable notice to Assignee, to perform any such
obligations in order to prevent a continuing uncured default under the Lease.
3. Assignor acknowledges that, pursuant to the Lease and the terms of
any agreement between Assignor and Landlord (a "Consent Agreement"), Assignor
shall remain directly and primarily liable for the performance of all of the
covenants, duties and obligations of "Tenant" under the Lease (including,
without limitation, the obligation to pay all rental and other sums provided in
the Lease), and Landlord shall be permitted to enforce the provisions of the
Lease against Assignor and/or Assignee in accordance with the terms of such
Lease and/or any Consent Agreement and/or any assignee, sublessee or other
transferee. Nothing in this paragraph or in any Consent Agreement shall be
deemed to modify or waive, as among Assignee, Assignor and Xxxxxx Technologies,
Inc., any agreement between Assignee and Assignor, including, without
limitation, in the Asset Purchase Agreement dated October 7, 2002, with respect
to the assumption by Assignee of liabilities and obligations under the Lease,
and indemnification in respect of the same.
D-2
4. This agreement may not be changed, modified, discharged or
terminated orally or in any other manner other than by an agreement in writing
signed by the parties hereto or their respective successors and assigns.
5. This Assignment of Lease is contingent upon and shall become
effective only upon the execution and delivery by Assignor and Assignee and the
consent of Landlord.
[SIGNATURES ON FOLLOWING PAGES]
D-3
IN WITNESS WHEREOF, the parties hereto have caused this Assignment of
Lease to be executed on the day and year first written above.
ASSIGNOR:
Albacore Holdings, Inc. (formerly known as
INTERTECH MANAGEMENT GROUP, INC.),
a Missouri corporation
By: /s/ Xxxx Xxxxxx
----------------------------------------
Name: Xxxx Xxxxxx
Title: President
Address: 000 Xxxxxxxxxxxx Xxxxxx
Xxxxx 000
Xx. Xxxxx, XX 00000
ASSIGNEE:
XXXXXX SOLUTIONS, INC.,
a Delaware corporation
By: /s/ Xxxxxx Quick
----------------------------------------
Name: Xxxxxx Quick
Title: President, CEO
Address: 000 Xxxxx Xxxxx Xxxx
Xxxxx 000
Xxxx Xxxxx, XX 00000
D-4