1
EXHIBIT 10.6
ONE BELLEVUE CENTER
OFFICE LEASE
BETWEEN
EOP NORTHWEST PROPERTIES, L.L.C. A DELAWARE LIMITED LIABILITY COMPANY
("LANDLORD")
AND
BSQUARE CORPORATION, A WASHINGTON CORPORATION
("TENANT")
2
TABLE OF CONTENTS
I. Basic Lease Information; Definitions............................... 1
II. Lease Grant........................................................ 2
III. Adjustment of Commencement Date/Possession......................... 2
IV. Use................................................................ 3
V. Rent............................................................... 3
VI. Security Deposit................................................... 7
VII. Services to be Furnished by Landlord............................... 7
VIII. Leasehold Improvements............................................. 7
IX. Repairs and Alterations by Tenant.................................. 8
X. Use of Electrical Services by Tenant............................... 8
XI. Entry by Landlord.................................................. 8
XII. Assignment and Subletting.......................................... 9
XIII. Liens.............................................................. 9
XIV. Indemnity and Waiver of Claims..................................... 9
XV. Tenant's Insurance................................................. 10
XVI. Subrogation........................................................ 10
XVII. Casualty Damage.................................................... 10
XVIII. Demolition......................................................... 11
XIX. Condemnation....................................................... 11
XX. Events of Default.................................................. 12
XXI. Remedies........................................................... 12
XXII. LIMITATION OF LIABILITY............................................ 13
XXIII. No Waiver.......................................................... 13
XXIV. Relocation......................................................... 13
XXV. Holding Over....................................................... 13
XXVI. Subordination to Mortgages; Estoppel Certificate................... 13
XXVII. Notice............................................................. 14
XXVIII. Landlord's Lien.................................................... 14
XXIX. Excepted Rights.................................................... 14
XXX. Surrender of Premises.............................................. 15
XXXI. Miscellaneous...................................................... 15
XXXII. Entire Agreement................................................... 16
EXHIBIT A-Outline and Location of Premises
EXHIBIT A-2-Legal Description of Property
EXHIBIT B-Building Rules and Regulations
EXHIBIT C-Intentionally Omitted
EXHIBIT D-Intentionally Omitted
EXHIBIT E-Other Provisions
i
3
OFFICE LEASE AGREEMENT
This Office Lease Agreement (the "Lease") is made and entered into as of
the 14th day of December, 1998, by and between EOP Northwest Properties, L.L.C.,
a Delaware limited liability company ("Landlord") and BSQUARE Corporation, a
Washington corporation ("Tenant"), whose address for the purpose of notices to
Tenant prior to commencement of the Term of this Lease shall be at 0000 000xx
Xxxxx XX, Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000.
I. BASIC LEASE INFORMATION; DEFINITIONS.
A. The following is some of the basic lease information and defined
terms used in this Lease.
1. "Additional Base Rental" shall mean Tenant's Pro Rata
Share of Basic Costs and any other sums (exclusive of
Base Rental) that are required to be paid by Tenant to
Landlord hereunder. Additional Base Rental and Base
Rental sometimes collectively are referred to herein as
"Rent".
2. "Base Rental" shall mean the sum of Two Hundred
Ninety-Three Thousand Four Hundred Twenty-Nine and
00/100 Dollars ($293,429.00), payable by Tenant to
Landlord in Nine (9) monthly installments as follows:
a. One installment of Eighteen Thousand Nine
Hundred Ninety-Nine and 00/100 Dollars
($18,999.00, i.e. $1,055.50 per diem x 18 days)
payable upon the execution of this Lease by
Tenant for the period beginning December 14,
1998 and ending December 31, 1998.
b. Five (5) equal installments of Thirty One
Thousand Six Hundred Sixty Five and no/100
Dollars ($31,665.00), each payable on or before
the first day of each month during the period
beginning January 1, 1999 and ending May 31,
1999.
c. Three (3) equal installments of Thirty Eight
Thousand Seven Hundred One and 67/100 Dollars
($38,701.67), each payable on or before the
first day of each month during the period
beginning June 1, 1999 and ending August 31,
1999.
3. "Base Year" shall mean 1999.
4. "Building" shall mean the office building located at 000
000xx Xxxxxx, XX Xxxxxxxx, 00000, Xxxx Xxxxxx, Xxxxx of
Washington, commonly known as One Bellevue Center.
5. The "Commencement Date," "Lease Term" and "Termination
Date" shall have the meanings set forth in subsection
I.A.5.a. below:
a. The "Lease Term" shall mean a period of eight
(8) months and eighteen (18) days commencing on
December 14, 1998 (the "Commencement Date") and,
unless sooner terminated as provided herein,
ending on August 31, 1999 (the "Termination
Date").
b. INTENTIONALLY OMITTED.
6. INTENTIONALLY OMITTED.
7. "Notice Addresses" shall mean the Premises for Tenant
after the commencement of the Term of this Lease, and,
for Landlord, shall mean:
1
4
EOP Northwest Properties, L.L.C.
c/o Wright Runstad Associates Limited Partnership
One Bellevue Center
000 000xx Xxxxxx XX, Xxxxx 0000
Xxxxxxxx, XX 00000
Attention: Building Manager
With a copy to:
Equity Office Properties Trust
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Regional Counsel - West Region
Payments of Rent only shall be made payable to the order of:
EQUITY OFFICE PROPERTIES
at the following address:
EOP Northwest Properties, L.L.C.
Xxx Xxxxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxx, XX 00000-0000
8. "Permitted Use" shall mean: general office use.
9. "Premises" shall mean the area located on the sixth
(6th) floor of the Building and outlined on Exhibit A
attached hereto and incorporated herein and known as
Suite #600. Landlord and Tenant hereby stipulate and
agree that the "Rentable Area of the Premises" shall
mean 16,888 square feet and the "Rentable Area of the
Building" shall mean approximately 344,715 square feet.
10. "Tenant's Pro Rata Share" shall mean four and eight
thousand nine hundred ninety one ten-thousandths percent
(4.8991%), which is the quotient (expressed as a
percentage) derived by dividing the Rentable Area of the
Premises by the Rentable Area of the Building.
B. The following are additional definitions of some of the defined
terms used in the Lease: (1) "Common Areas" shall mean those
areas provided by Landlord for the common use or benefit of all
tenants generally and/or the public; (2) "Owner" shall mean the
entity(ies), from time to time, which own the Property or any
portion thereof; (3) "Prime Rate" shall mean the per annum
interest rate publicly announced by The First National Bank of
Chicago or any successor thereof from time to time (whether or
not charged in each instance) as its prime or base rate in
Chicago, Illinois; and (4) "Property" shall mean the Building
and the parcel of land on which it is located and, at Landlord's
discretion, the Building garage, and all other improvements
serving the Building and the tenants thereof and the parcel(s)
of land on which they are located.
II. LEASE GRANT.
Subject to and upon the terms herein set forth, Landlord leases to
Tenant and Tenant leases from Landlord the Premises.
III. POSSESSION.
A. INTENTIONALLY OMITTED.
B. Tenant shall be entitled to possession of Premises on the
Commencement Date and Landlord assures that Premises are in
working condition. By taking possession of the Premises, Tenant
is deemed to have: (1) accepted the
2
5
Premises and agreed that, subject to Landlord's assurance as set
forth above, the Premises is in good order and satisfactory
condition, with no representation or warranty by Landlord,
except as set forth above, as to the condition of the Premises
or the Building or suitability thereof for Tenant's use; and (2)
agreed that Landlord, subject to Landlord's assurance as set
forth above, has no obligation to clean, decorate, alter,
remodel, improve or repair the Premises or the Building unless
said obligation is specifically set forth in this Lease. If
Tenant takes possession of the Premises prior to the
Commencement Date for any reason whatsoever, such possession
shall be subject to all the terms and conditions of the Lease
and Tenant shall pay Base Rental and Additional Base Rental to
Landlord on a per diem basis for each day of occupancy prior to
the Commencement Date. Notwithstanding the foregoing, if Tenant,
with Landlord's prior approval, takes possession of the Premises
prior to the Commencement Date for the sole purpose of
performing any Landlord-approved improvements therein or
installing furniture, equipment or other personal property of
Tenant, such possession shall be subject to all of the terms and
conditions of the Lease, except that Tenant shall not be
required to pay Base Rental or Additional Base Rental with
respect to the period of time prior to the Commencement Date.
Tenant shall, however, be liable for the cost of any services
(e.g. electricity, HVAC, freight elevators) that are provided to
Tenant or the Premises during the period of Tenant's possession
prior to the Commencement Date.
IV. USE.
The Premises shall be used for the Permitted Use and for no other
purpose. Tenant agrees not to use or permit the use of the Premises for any
purpose which is illegal, dangerous or which, in Landlord's opinion, creates a
nuisance or which would increase the cost of insurance coverage with respect to
the Building. Tenant shall conduct its business and control its agents,
servants, contractors, employees, customers, licensees, and invitees
(collectively, the "Tenant Related Parties") in such a manner as not to
interfere with, annoy or disturb other tenants, or in any way interfere with
Landlord in the management and operation of the Building. Tenant will maintain
the Premises in a clean and healthful condition, and comply with all laws,
ordinances, orders, rules and regulations of any governmental entity with
reference to the operation of Tenant's business and to the use, condition,
configuration or occupancy of the Premises, including without limitation, the
Americans with Disabilities Act (collectively referred to as "Laws"). Tenant,
within ten (10) days after receipt thereof, shall provide Landlord with copies
of any notices it receives with respect to a violation or alleged violation of
any Laws. Tenant will comply with the rules and regulations of the Building
attached hereto as Exhibit B and such other rules and regulations adopted and
altered by Landlord from time to time and will cause all Tenant Related Parties
to do so.
V. RENT.
A. During each calendar year, or portion thereof, falling within
the Lease Term, Tenant shall pay to Landlord as Additional Base
Rental hereunder the sum of (1) Tenant's Pro Rata Share of the
amount, if any, by which Taxes (hereinafter defined) for the
applicable calendar year exceed Taxes for the Base Year plus (2)
Tenant's Pro Rata Share of the amount, if any, by which Expenses
(hereinafter defined) for the applicable calendar year exceed
Expenses for the Base Year. For purposes hereof, "Expenses"
shall mean all Basic Costs with the exception of Taxes. Tenant's
Pro Rata Share of increases in Taxes and Tenant's Pro Rata Share
of increases in Expenses shall be computed separate and
independent of each other prior to being added together to
determine the "Excess." In the event that Taxes and/or Expenses,
as the case may be, in any calendar year decrease below the
amount of Taxes or Expenses for the Base Year, Tenant's Pro Rata
Share of Taxes and/or Expenses, as the case may be, for such
calendar year shall be deemed to be $0, it being understood that
Tenant shall not be entitled to any credit or offset if Taxes
and/or Expenses decrease below the corresponding amount for the
Base Year. Prior to the Commencement Date and prior to January 1
of each calendar year during the Lease Term, or as soon
thereafter as practical, Landlord shall make a good faith
estimate of the Excess for the applicable calendar year and
Tenant's Pro Rata Share thereof. On or before the first day of
each month during such calendar year, Tenant shall pay to
Landlord, as Additional Base Rental, a monthly installment equal
to one-twelfth of Tenant's Pro Rata Share of Landlord's
3
6
estimate of the Excess. Landlord shall have the right from time
to time during any such calendar year to revise the estimate of
Basic Costs and the Excess for such year and provide Tenant with
a revised statement therefor, and thereafter the amount Tenant
shall pay each month shall be based upon such revised estimate.
If Landlord does not provide Tenant with an estimate of the
Basic Costs and the Excess by January 1 of any calendar year,
Tenant shall continue to pay a monthly installment based on the
previous year's estimate until such time as Landlord provides
Tenant with an estimate of Basic Costs and the Excess for the
current year. Upon receipt of such current year's estimate, an
adjustment shall be made for any month during the current year
with respect to which Tenant paid monthly installments of
Additional Base Rental based on the previous year's estimate.
Tenant shall pay Landlord for any underpayment upon demand. Any
overpayment shall, at Landlord's option, be refunded to Tenant
or credited against the installment of Additional Base Rental
due for the months immediately following the furnishing of such
estimate. Any amounts paid by Tenant based on any estimate shall
be subject to adjustment pursuant to the immediately following
paragraph when actual Basic Costs are determined for such
calendar year.
As soon as is practical following the end of each calendar year
during the Lease Term, Landlord shall furnish to Tenant a
statement of Landlord's actual Basic Costs and the actual Excess
for the previous calendar year. If the estimated Excess actually
paid by Tenant for the prior year is in excess of Tenant's
actual Pro Rata Share of the Excess for such prior year, then
Landlord shall apply such overpayment against Additional Base
Rental due or to become due hereunder, provided if the Lease
Term expires prior to the determination of such overpayment,
Landlord shall refund such overpayment to Tenant after first
deducting the amount of any Rent due hereunder. Likewise, Tenant
shall pay to Landlord, on demand, any underpayment with respect
to the prior year, whether or not the Lease has terminated prior
to receipt by Tenant of a statement for such underpayment, it
being understood that this clause shall survive the expiration
of the Lease.
B. Basic Costs shall mean all costs and expenses paid or incurred
in each calendar year in connection with operating, maintaining,
repairing, managing and owning the Building and the Property,
including, but not limited to, the following:
1. All labor costs for all persons performing services
required or utilized in connection with the operation,
repair, replacement and maintenance of and control of
access to the Building and the Property, including but
not limited to amounts incurred for wages, salaries and
other compensation for services, payroll, social
security, unemployment and other similar taxes, workers'
compensation insurance, uniforms, training, disability
benefits, pensions, hospitalization, retirement plans,
group insurance or any other similar or like expenses or
benefits.
2. All management fees, the cost of equipping and
maintaining a management office at the Building,
accounting services, legal fees not attributable to
leasing and collection activity, and all other
administrative costs relating to the Building and the
Property. If management services are not provided by a
third party, Landlord shall be entitled to a management
fee comparable to that due and payable to third parties
provided Landlord or management companies owned by, or
management divisions of, Landlord perform actual
management services of a comparable nature and type as
normally would be performed by third parties.
3. All rental and/or purchase costs of materials, supplies,
tools and equipment used in the operation, repair,
replacement and maintenance and the control of access to
the Building and the Property.
4. All amounts charged to Landlord by contractors and/or
suppliers for services, replacement parts, components,
materials, equipment and supplies furnished in
connection with the operation, repair, maintenance,
replacement of and control of access to any part of the
Building, or the
4
7
Property generally, including the heating, air
conditioning, ventilating, plumbing, electrical,
elevator and other systems and equipment. At Landlord's
option, major repair items may be amortized over a
period of up to five (5) years.
5. All premiums and deductibles paid by Landlord for fire
and extended coverage insurance, earthquake and extended
coverage insurance, liability and extended coverage
insurance, rental loss insurance, elevator insurance,
boiler insurance and other insurance customarily carried
from time to time by lessors of comparable office
buildings or required to be carried by Landlord's
Mortgagee.
6. Charges for all utilities, including but not limited to
water, electricity, gas and sewer, but excluding those
charges for which Landlord is otherwise reimbursed by
tenants.
7. "Taxes", which for purposes hereof, shall mean: (a) all
real estate taxes and assessments on the Property, the
Building or the Premises, and taxes and assessments
levied in substitution or supplementation in whole or in
part of such taxes, (b) all personal property taxes for
the Building's personal property, including license
expenses, (c) all taxes imposed on services of
Landlord's agents and employees, (d) all other taxes,
fees or assessments now or hereafter levied by any
governmental authority on the Property, the Building or
its contents or on the operation and use thereof (except
as relate to specific tenants), and (e) all costs and
fees incurred in connection with seeking reductions in
or refunds in Taxes including, without limitation, any
costs incurred by Landlord to challenge the tax
valuation of the Building, but excluding income taxes.
For the purpose of determining real estate taxes and
assessments for any given calendar year, the amount to
be included in Taxes for such year shall be as follows:
(1) with respect to any special assessment that is
payable in installments, Taxes for such year shall
include the amount of the installment (and any interest)
due and payable during such year; and (2) with respect
to all other real estate taxes, Taxes for such year
shall, at Landlord's election, include either the amount
accrued, assessed or otherwise imposed for such year or
the amount due and payable for such year, provided that
Landlord's election shall be applied consistently
throughout the Lease Term. If a reduction in Taxes is
obtained for any year of the Lease Term during which
Tenant paid its Pro Rata Share of Basic Costs, then
Basic Costs for such year will be retroactively adjusted
and Landlord shall provide Tenant with a credit, if any,
based upon such adjustment. Likewise, if a reduction is
subsequently obtained for the tax component of Basic
Costs for the Base Year (if Tenant's Pro Rata Share is
based upon increases in Basic Costs over a Base Year),
Basic Costs for the Base Year shall be restated and the
Excess for all subsequent years recomputed. Tenant shall
pay Landlord Tenant's Pro Rata Share of any such
increase in the Excess within thirty (30) days after
Tenant's receipt of a statement therefor from Landlord.
8. All landscape expenses and costs of maintaining,
repairing, resurfacing and striping of the parking areas
and garages of the Property, if any.
9. Cost of all maintenance service agreements, including
those for equipment, alarm service, window cleaning,
drapery or venetian blind cleaning, janitorial services,
pest control, uniform supply, plant maintenance,
landscaping, and any parking equipment.
10. Cost of all other repairs, replacements and general
maintenance of the Property and Building neither
specified above nor directly billed to tenants.
11. The amortized cost of capital improvements made to the
Building or the Property which are: (a) primarily for
the purpose of reducing operating expense costs or
otherwise improving the operating efficiency of the
Property or Building; or (b) required to comply with any
laws, rules or
5
8
regulations of any governmental authority or a
requirement of Landlord's insurance carrier. The cost of
such capital improvements shall be amortized over a
period of five (5) years and shall, at Landlord's
option, include interest at a rate that is reasonably
equivalent to the interest rate that Landlord would be
required to pay to finance the cost of the capital
improvement in question as of the date such capital
improvement is performed, provided if the payback period
for any capital improvement is less than five (5) years,
Landlord may amortize the cost of such capital
improvement over the payback period.
12. Any other expense or charge of any nature whatsoever
which, in accordance with general industry practice with
respect to the operation of a first-class office
building, would be construed as an operating expense.
In addition, if Landlord incurs any costs and expenses
in connection with the operation, maintenance, repair,
management or ownership of the Building and one or more
other buildings, such costs and expenses shall be
equitably prorated between the Building and such other
buildings and the Building's equitable share thereof
shall be included in Basic Costs. If the Building is not
at least ninety-five percent (95%) occupied during the
Base Year (if applicable) or any calendar year of the
Lease Term or if Landlord is not supplying services to
at least ninety-five percent (95%) of the total Rentable
Area of the Building at any time during the Base Year
(if applicable) or any calendar year of the Lease Term,
actual Basic Costs for purposes hereof shall, at
Landlord's option, be determined as if the Building had
been ninety-five percent (95%) occupied and Landlord had
been supplying services to ninety-five percent (95%) of
the Rentable Area of the Building during such year.
C. If Basic Costs for any calendar year increase by more than five
percent (5%) over Basic Costs for the immediately preceding
calendar year, Tenant, within ninety (90) days after receiving
Landlord's statement of actual Basic Costs for a particular
calendar year, shall have the right to provide Landlord with
written notice (the "Review Notice") of its intent to review
Landlord's books and records relating to the Basic Costs for
such calendar year. Within a reasonable time after receipt of a
timely Review Notice, Landlord shall make such books and records
available to Tenant or Tenant's agent for its review at either
Landlord's home office or the office of the Building, provided
that if Tenant retains an agent to review Landlord's books and
records for any calendar year, such agent must be CPA firm
licensed to do business in the state in which the Building is
located. If Tenant fails to give Landlord written notice of
objection within thirty (30) days after its review or fails to
provide Landlord with a Review Notice within the ninety (90) day
period provided above, Tenant shall be deemed to have approved
Landlord's statement of Basic Costs in all respects and shall
thereafter be barred from raising any claims with respect
thereto. Any information obtained by Tenant pursuant to the
provisions of this Section shall be treated as confidential.
Notwithstanding anything herein to the contrary, Tenant shall
not be permitted to examine Landlord's books and records or to
dispute any statement of Basic Costs unless Tenant has paid to
Landlord the amount due as shown on Landlord's statement of
actual Basic Costs, said payment being a condition precedent to
Tenant's right to examine Landlord's books and records.
D. Tenant covenants and agrees to pay to Landlord during the Lease
Term, without any setoff or deduction whatsoever, the full
amount of all Base Rental and Additional Base Rental due
hereunder. In addition, Tenant shall pay and be liable for, as
additional rent, all rental, sales and use taxes or other
similar taxes, if any, levied or imposed by any city, state,
county or other governmental body having authority, such
payments to be in addition to all other payments required to be
paid to Landlord by Tenant under the terms and conditions of
this Lease. Any such payments shall be paid concurrently with
the payments of the Rent on which the tax is based. The Base
Rental, Tenant's Pro Rata Share of Basic Costs and any recurring
monthly charges due hereunder shall be due and payable in
advance on the first day of each calendar month during the Lease
Term without demand, provided that the installment of Base
Rental for the first full calendar month of the Lease Term shall
be payable upon the execution of
6
9
this Lease by Tenant. All other items of Rent shall be due and
payable by Tenant on or before ten (10) days after billing by
Landlord. If the Lease Term commences on a day other than the
first day of a calendar month or terminates on a day other than
the last day of a calendar month, then the monthly Base Rental
and Tenant's Pro Rata Share of Basic Costs for such month shall
be prorated for the number of days in such month occurring
within the Term based on a fraction, the numerator of which is
the number of days of the Lease Term that fell within such
calendar month and the denominator of which is thirty (30).
E. All Rent not paid when due and payable shall bear interest from
the date due until paid at the lesser of: (1) eighteen percent
(18%) per annum; or (2) the greatest per annum rate of interest
permitted from time-to-time under applicable law. In addition,
if Tenant fails to pay any installment of Rent when due and
payable hereunder, a service fee equal to five percent (5%) of
such unpaid amount will be due and payable immediately by Tenant
to Landlord.
VI. SECURITY DEPOSIT.
A Security Deposit of ZERO and no/100 Dollars ($0.00) shall be delivered
to Landlord upon the execution of this Lease by Tenant and shall be held by
Landlord without liability for interest and as security for the performance of
Tenant's obligations under this Lease. Landlord may, from time to time, without
prejudice to any other remedy, use all or a portion of the Security Deposit to
make good any arrearages of Rent, to repair damages to the Premises caused by
Tenant, to clean the Premises upon termination of this Lease or otherwise to
satisfy any other covenant or obligation of Tenant 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. If Tenant is not in default at the termination of this Lease, after
Tenant surrenders the Premises to Landlord in accordance with this Lease and all
amounts due Landlord from Tenant are finally determined and paid by Tenant or
through application of the Security Deposit, the balance of the Security Deposit
shall be returned to Tenant. If Landlord transfers its interest in the Premises
during the Lease Term, Landlord may assign the Security Deposit to the
transferee and thereafter shall have no further liability for the return of such
Security Deposit. Landlord shall not be required to segregate the Security
Deposit from its other accounts.
VII. SERVICES TO BE FURNISHED BY LANDLORD.
Landlord, as part of Basic Costs, agrees to furnish Tenant the following
services: (a) cold water at those points of supply provided for general use of
tenants in the Building; (b) central heat and air conditioning in season during
Landlord's normal business hours; (c) routine maintenance and electric lighting
service for all Common Areas of the Building; (d) janitor service on business
days exclusive of Saturdays, Sundays and holidays; and (e) elevator service in
common with other tenants of the Building for ingress and egress to and from the
floor of the Premises during Landlord's normal business hours. The failure by
Landlord to any extent to furnish, or the interruption or termination of these
services in whole or in part, shall not render Landlord liable in any respect
nor be construed as an eviction of Tenant or breach of any implied warranty of
habitability, nor give rise to an abatement of Rent, nor relieve Tenant from the
obligation to fulfill any covenant or agreement hereof. Tenant expressly
acknowledges that if Landlord, from time to time, elects to provide security
services, Landlord shall not be deemed to have warranted the efficiency of any
such security personnel, service, procedures or equipment and Landlord shall not
be liable in any manner for the failure of any such security personnel,
services, procedures or equipment to prevent or control, or apprehend any one
suspected of personal injury, property damage or criminal conduct in, on or
around the Property.
VIII. LEASEHOLD IMPROVEMENTS.
Any and all alterations, additions and improvements to the Premises, all
attached furniture, equipment and non-trade fixtures except for Computer
Associates' modular furniture (collectively, "Leasehold Improvements")
shall be owned and insured by Landlord and shall remain upon the
Premises, all without compensation to Tenant. Any unattached and movable
equipment or furniture, trade fixtures or other personality ("Tenant's
Property") shall be owned and insured by Tenant. Landlord acknowledges
that the existing Steel Case modular furniture is personal property
belonging to Computer Associates. Landlord further acknowledges that
Computer Associates shall
7
10
have the right to enter the Premises upon termination of the Lease and
remove all of such Steel Case modular furniture. Tenant shall not be
liable or responsible for removing any of the Computer Associates' Steel
Case modular furniture nor for any damage to the Premises or Building
resulting from any actions or inactions of Computer Associates in
connection with the removal, or failure to remove, the Steel Case
modular furniture.
IX. REPAIRS AND ALTERATIONS BY TENANT.
A. Tenant shall, at Tenant's own cost and expense, keep the
Premises in good condition and repair, ordinary wear and tear
and damage by fire and casualty excepted. Such repairs shall
restore the Premises to as good a condition as it was at the
Commencement Date and shall be effected in compliance with the
reasonable directions of Landlord. If Tenant fails to make such
repairs to the Premises promptly, Landlord may, at its option,
make such repairs, and Tenant shall pay the cost thereof to the
Landlord on demand as additional Rent.
B. Tenant shall not make or allow to be made any alterations,
additions or improvements ("Alterations") to the Premises,
without first obtaining the written consent of Landlord. Prior
to commencing any such work and as a condition to obtaining
Landlord's consent, Tenant must furnish Landlord with plans and
specifications; names and addresses of contractors; copies of
contracts; necessary permits; evidence of contractor's and
subcontractor's insurance in a type and amount acceptable to
Landlord; and payment bond or other security, all in form and
amount satisfactory to Landlord. All such Alterations shall be
installed in a good workmanlike manner using new materials.
Landlord shall have the right to designate the time when any
such alterations, additions and improvements may be performed
and to otherwise designate reasonable rules, regulations and
procedures for the performance of work in the Building. Upon
completion, Tenant shall furnish "as-built" plans, contractor's
affidavits and full and final waivers of lien and receipted
bills covering all labor and materials. All Alterations shall
comply with all insurance requirements, codes, ordinances, laws
and regulations, including without limitation, the Americans
with Disabilities Act. Tenant shall reimburse Landlord upon
demand as additional Rent for all sums expended by Landlord for
examination of the architectural, mechanical, electric and
plumbing plans for any Alterations. If Landlord so requests,
Tenant shall permit Landlord to supervise construction
operations, but no such supervision shall impose any liability
upon Landlord. In the event Landlord supervises such
construction, Landlord shall be entitled to a supervisory fee in
the amount of ten percent (10%) of the cost of such
construction. Landlord's approval of Tenant's plans and
specifications or supervision of any work performed for or on
behalf of Tenant shall not be deemed to be a representation by
Landlord that such plans and specifications comply with
applicable insurance requirements, building codes, ordinances,
laws or regulations or that any such alterations, additions and
improvements will be adequate for Tenant's use,
X. USE OF ELECTRICAL SERVICES BY TENANT.
All electricity used by Tenant in the Premises shall, at Landlord's
option, be paid for by Tenant either (a) through inclusion in Base Rental or
Basic Costs, or (b) by a separate charge billed directly to Tenant by Landlord
and payable by Tenant as additional Rent, or (c) by a separate charge billed by
the utility company supplying electricity and payable by Tenant directly to such
utility company. Tenant's use of electrical service in the Premises shall not
exceed, either in voltage, rated capacity, use or overall load, that which
Landlord deems to be standard for the Building. Landlord shall have the right to
separately meter electrical usage for the Premises at any time during the Lease
Term or to use any other method of measuring electrical usage that Landlord
reasonably deems to be appropriate.
XI. ENTRY BY LANDLORD.
Landlord and its agents or representatives shall have the right to enter
the Premises to inspect the same, or to show the Premises to prospective
purchasers, mortgagees, tenants or insurers, or to clean or make repairs,
alterations or additions thereto, including any work that Landlord deems
necessary for the safety, protection or preservation of the Building or any
occupants thereof, or to facilitate repairs, alterations or additions to the
Building or any other
8
11
tenants' premises. If reasonably necessary for the protection and safety of
Tenant and its employees, Landlord shall have the right to temporarily close the
Premises to perform repairs, alterations or additions in the Premises. Entry by
Landlord hereunder shall not constitute a constructive eviction or entitle
Tenant to any abatement or reduction of Rent by reason thereof.
XII. ASSIGNMENT AND SUBLETTING.
Tenant shall not assign, sublease, transfer or encumber this Lease or
any interest therein or grant any license, concession or other right of
occupancy of the Premises or any portion thereof or otherwise permit the use of
the Premises or any portion thereof by any party other than Tenant (any of which
events is hereinafter called a "Transfer") without the prior written consent of
Landlord. If Tenant requests Landlord's consent to a Transfer, Tenant, together
with such consent, shall provide Landlord with the name of the proposed
transferee and the nature of the business of the proposed transferee, the term,
use, rental rate and all other material terms and conditions of the proposed
Transfer, including, without limitation, a copy of the proposed assignment,
sublease or other contractual documents and evidence satisfactory to Landlord
that the proposed transferee is financially responsible. Landlord may, within
forty-five (45) days after receipt of all information and documentation required
herein, (a) consent to or refuse to consent to such Transfer in writing; or (b)
negotiate directly with the proposed transferee and upon execution of a lease
with such transferee, terminate this Lease (in part or in whole, as appropriate)
upon thirty (30) days' notice; or (c) cancel and terminate this Lease, in whole
or in part as appropriate, upon thirty (30) days' notice. In the event Landlord
consents to any such Transfer, Tenant shall bear all costs and expenses incurred
by Landlord in connection with the review and approval of such documentation,
which costs and expenses shall be deemed to be at least Seven Hundred Fifty
Dollars ($750.00). Tenant hereby covenants and agrees to pay to Landlord all
rent and other consideration which it receives which is in excess of the Rent
payable hereunder within ten (10) days following receipt thereof by Tenant. In
addition to any other rights Landlord may have, Landlord shall have the right to
contact any transferee and require that all payments made pursuant to the
Transfer shall be made directly to Landlord. For purposes of this Article XII,
an assignment shall be deemed to include a change in the majority control of
Tenant, if Tenant is a partnership or a corporation whose stock is not traded
publicly. Any Transfer consented to by Landlord in accordance with this Article
XII shall be only for the Permitted Use and for no other purpose, and in no
event shall any Transfer release or relieve Tenant or any Guarantors from any
obligations under this Lease.
XIII. LIENS.
Tenant will not permit any mechanic's liens or other liens to be placed
upon the Premises or Tenant's leasehold interest therein, the Building, or the
real estate associated therewith. In the event any such lien does attach, Tenant
shall, within five (5) days of notice of the filing of said lien, discharge such
lien to the satisfaction of Landlord and Landlord's Mortgagee (as hereinafter
defined). If Tenant shall fail to so discharge such lien, then, in addition to
any other right or remedy of Landlord, Landlord may, but shall not be obligated
to, discharge the same. Any amount paid by Landlord for any of the aforesaid
purposes, including reasonable attorneys' fees, shall be paid by Tenant to
Landlord on demand as additional Rent. Landlord shall have the right to post and
keep posted on the Premises any notices that may be provided by law or which
Landlord may deem to be proper for the protection of Landlord, the Premises and
the Building from such liens.
XIV. INDEMNITY AND WAIVER OF CLAIMS.
A. Tenant shall indemnify, defend and hold Landlord, its members,
principals, beneficiaries, partners, officers, directors,
employees, Mortgagee(s) (if any) and agents, and the respective
principals and members of any such agents, (collectively the
"Landlord Related Parties") harmless against and from all
liabilities, obligations, damages, penalties, claims, costs,
charges and expenses, including, without limitation, reasonable
attorneys' fees and other professional fees (if and to the
extent permitted by law), which may be imposed upon, incurred
by, or asserted against Landlord or any of the Landlord Related
Parties and arising, directly or indirectly, out of or in
connection with the acts and omissions of Tenant or any of its
Transferees, agents, servants, contractors, employees, licensees
or invitees and/or the use, occupancy or maintenance of the
Premises by, through or under Tenant.
9
12
B. Tenant waives all claims for loss or damage to Tenant's business
or damage to person or property sustained by Tenant or any
person claiming by, through or under Tenant [including Tenant's
principals, agents and employees, (collectively, the "Tenant
Related Parties")] resulting from any accident or occurrence in,
on or about the Premises, the Building or the Property,
including, without limitation, claims for loss, theft or damage
resulting from: (1) the Premises, Building, or Property, or any
equipment or appurtenances becoming out of repair; (2) force
majeure; (3) any defect in or failure to operate, for whatever
reason, any sprinkler, heating or air-conditioning equipment,
electric wiring, gas, water or steam pipes; (4) any act,
omission or negligence of other tenants, licensees or any other
persons or occupants of the Building or of adjoining or
contiguous buildings, of owners of adjacent or contiguous
property or the public, or by construction of any private,
public or quasi-public work; or (5) any other cause of any
nature except, as to items 1.-5., where such loss or damage is
due to Landlord's negligence or wrongful conduct or Landlord's
willful failure to make repairs required to be made pursuant to
other provisions of this Lease, after the expiration of a
reasonable time after written notice to Landlord of the need for
such repairs.
XV. TENANT'S INSURANCE.
Tenant shall, at all times, carry and maintain, at its sole cost and
expense: (a) Commercial General Liability Insurance applicable to the Premises
and its appurtenances providing, on an occurrence basis, a minimum combined
single limit of Two Million Dollars ($2,000,000.00); (b) All Risks of Physical
Loss Insurance written at replacement cost value and with a replacement cost
endorsement covering all of Tenant's Property in the Premises; (c) Workers'
Compensation Insurance as required by the state in which the Premises is located
and in amounts as may be required by applicable statute, and Employers Liability
Coverage of One Million Dollars ($1,000,000.00) per occurrence; (d) additional
insurance as reasonably required by Landlord. Any company writing any insurance
to be maintained pursuant to the terms of this Lease (all such insurance being
referred to as "Tenant's Insurance"), as well as the form of such insurance,
shall at all times be subject to Landlord's approval. All policies evidencing
Tenant's Insurance (except for Workers' Compensation) shall specify Tenant and
the "owner(s) of the Building and its (or their) respective members, principals,
beneficiaries, partners, officers, directors, employees, agents (and their
respective members and principals) and mortgagee(s)" (and any other designees of
Landlord as the interest of such designees shall appear) as additional insureds.
All policies of Tenant's Insurance shall contain endorsements that the
insurer(s) will give to Landlord and its designees at least thirty (30) days'
advance written notice of any change, cancellation, termination or lapse of said
insurance. Tenant shall deliver to Landlord at least fifteen (15) days prior to
the time Tenant's Insurance is first required to be carried by Tenant, and upon
renewals at least fifteen (15) days prior to the expiration of any such
insurance coverage, a certificate of insurance of all policies procured by
Tenant in compliance with its obligations under this Lease. The limits of
Tenant's Insurance shall in no event limit Tenant's liability under this Lease.
XVI. SUBROGATION.
Notwithstanding anything set forth in this Lease to the contrary,
Landlord and Tenant do hereby agree to cause their respective insurance carriers
to waive any and all right of recovery, claim, action or cause of action against
the other, their respective principals, beneficiaries, partners, officers,
directors, agents, and employees, and, with respect to Landlord, its
Mortgagee(s), for any loss or damage that may occur to Landlord or Tenant or any
party claiming by, through or under Landlord or Tenant, as the case may be, with
respect to their respective property, the Building, the Property or the Premises
or any addition or improvements thereto, or any contents therein including the
negligence of Landlord or Tenant, or their respective principals, beneficiaries,
partners, officers, directors, agents and employees and, with respect to
Landlord, its Mortgagee(s), which loss or damage is (or would have been, had the
insurance required by this Lease been carried) covered by insurance.
XVII. CASUALTY DAMAGE.
Landlord, during the Lease Term, shall maintain standard so-called "all
risk" property insurance covering the Building in an amount equal to ninety
percent (90%) of the replacement cost thereof (including Leasehold Improvements
approved by Landlord) at the time in question. If the Premises or any part
thereof shall be damaged by fire or other casualty, Tenant shall give
10
13
prompt written notice thereof to Landlord. In case the Building shall be so
damaged that substantial alteration or reconstruction of the Building shall, in
Landlord's sole opinion, be required (whether or not the Premises shall have
been damaged by such casualty) or in the event the Premises have been damaged
and there is less than two (2) years of the Lease Term remaining on the date of
such casualty or in the event any Mortgagee should require that the insurance
proceeds payable as a result of a casualty be applied to the payment of the
mortgage debt or in the event of any material uninsured loss to the Building or
in the event Landlord will not be permitted by applicable law to rebuild the
Building in substantially the same form as existed prior to the fire or
casualty, Landlord may, at its option, terminate this Lease by notifying Tenant
in writing of such termination within ninety (90) days' after the date of such
casualty, provided that Landlord may not terminate this Lease if the Premises is
not damaged by any such casualty if (i) Landlord elects to repair or reconstruct
the Building, and (ii) Tenant is permitted by applicable laws and regulations to
remain in occupancy of the Premises while the remainder of the Building is being
reconstructed or repaired, and (iii) Tenant's continued occupancy of the
Premises does not substantially adversely impact the work to be performed by
Landlord in repairing or constructing the Building. Such termination shall be
effective as of the date of fire or casualty, with respect to any portion of the
Premises that was rendered untenantable, and the date specified in Landlord's
notice, with respect to any portion of the Premises that remained tenantable. If
Landlord does not elect to terminate this Lease, Landlord shall commence and
proceed with reasonable diligence to restore the Premises (but excluding any
improvements, alterations or additions made by Tenant in violation of this
Lease) to substantially the same condition they were in immediately prior to the
happening of the casualty. Notwithstanding the foregoing, Landlord's obligation
to restore the Building, and the Leasehold Improvements, if any, shall not
require Landlord to expend for such repair and restoration work more than the
insurance proceeds actually received by the Landlord as a result of the
casualty, When the repairs have been completed by Landlord, Tenant shall
complete the restoration or replacement of all Tenant's Property necessary to
permit Tenant's reoccupancy of the Premises, and Tenant shall present Landlord
with evidence satisfactory to Landlord of Tenant's ability to pay such costs
prior to Landlord's commencement of repair and restoration of the Premises.
Landlord shall not be liable for any inconvenience or annoyance to Tenant or
injury to the business of Tenant resulting in any way from such damage or the
repair thereof, except that, subject to the provisions of the next sentence,
Landlord shall allow Tenant a fair diminution of Rent on a per diem basis during
the time and to the extent any damage to the Premises causes the Premises to be
rendered untenantable. If the Premises or any other portion of the Building is
damaged by fire or other casualty resulting from the fault or negligence of
Tenant or any of Tenant's agents, employees, or contractors, the Rent hereunder
shall not be diminished during any period during which the Premises, or any
portion thereof, is untenantable, and Tenant shall be liable to Landlord for the
cost of the repair and restoration of the Building caused thereby to the extent
such cost and expense is not covered by insurance proceeds plus any uninsured
amount resulting from (i) the insurance deductible and (ii) any deficiency in
coverage resulting from the Building not being insured for 100% of the
replacement value, and Landlord waives all claims against Tenant therefor.
Landlord and Tenant hereby waive the provisions of any law from time to time in
effect during the Lease Term relating to the effect upon leases of partial or
total destruction of leased property. Landlord and Tenant agree that their
respective rights in the event of any damage to or destruction of the Premises
or Building shall be those specifically set forth herein.
XVIII. DEMOLITION. (INTENTIONALLY OMITTED)
XIX. CONDEMNATION.
If (a) the whole or any substantial part of the Premises or (b) any
portion of the Building or Property which would leave the remainder of the
Building unsuitable for use as an office building comparable to its use on the
Commencement Date, shall be taken or condemned for any public or quasi-public
use, then Landlord may, at its option, terminate this Lease effective as of the
date the physical taking of said Premises or said portion of the Building or
Property shall occur. In the event this Lease is not terminated, the Rentable
Area of the Building, the Rentable Area of the Premises and Tenant's Pro Rata
Share shall be appropriately adjusted. In addition, Rent for any portion of the
Premises so taken or condemned shall be abated during the unexpired term of this
Lease effective when the physical taking of said portion of the Premises shall
occur. All compensation awarded for any such taking or condemnation, or sale
proceeds in lieu thereof, shall be the property of Landlord, and Tenant shall
have no claim thereto, the same being hereby expressly waived by Tenant.
11
14
XX. EVENTS OF DEFAULT.
The following events shall be deemed to be events of default under this
Lease: (a) Tenant shall fail to pay when due any Base Rental, Additional Base
Rental or other Rent under this Lease and such failure shall continue for three
(3) days after written notice from Landlord (hereinafter sometimes referred to
as a "Monetary Default"); (b) any failure by Tenant (other than a Monetary
Default) to comply with any term, provision or covenant of this Lease, which
failure is not cured within ten (10) days after delivery to Tenant of notice of
the occurrence of such failure, provided that if any such failure creates a
hazardous condition, such failure must be cured immediately; provided, however,
notwithstanding the foregoing in subsections (a) and (b) above, if Tenant fails
to comply with any particular provision or covenant of this Lease on three (3)
occasions during any twelve (12) month period, any subsequent violation of such
provision or covenant shall be considered to be an incurable default by Tenant;
(c) Tenant or any Guarantor shall become insolvent, or shall make a transfer in
fraud of creditors, or shall commit an act of bankruptcy or shall make an
assignment for the benefit of creditors, or Tenant or any Guarantor shall admit
in writing its inability to pay its debts as they become due; (d) the leasehold
estate hereunder shall be taken on execution or other process of law or equity
in any action against Tenant; (e) Tenant shall abandon or vacate any substantial
portion of the Premises without the prior written permission of Landlord; (f)
Tenant shall fail to take possession of and occupy the Premises within thirty
(30) days following the Commencement Date; or (g) Tenant shall be in default
beyond any notice and cure period under any other lease with Landlord.
XXI. REMEDIES.
A. Upon the occurrence of any event or events of default under this
Lease, whether enumerated in Article XX or not, Landlord shall
have the option to pursue any one or more of the following
remedies without any notice (except as expressly prescribed
herein):
1. Terminate this Lease, in which event Tenant shall
immediately surrender the Premises to Landlord. If
Tenant fails to surrender the Premises upon termination
of the Lease hereunder, Landlord may enter upon and take
possession of the Premises and expel or remove Tenant
and any other person who may be occupying said Premises,
or any part thereof, by force, if necessary, without
being liable for prosecution or any claim of damages
therefor, and Tenant hereby agrees to pay to Landlord on
demand the amount of all loss and damage, including
consequential damages, which Landlord may suffer by
reason of such termination, whether through inability to
relet the Premises on satisfactory terms or otherwise,
specifically including but not limited to all costs of
reletting (which for purposes of this Lease shall
include all costs of preparing the Premises for
occupancy and all costs of concessions and brokerage
commissions in connection with any new lease for the
Premises) and any deficiency that may arise by reason of
any reletting or failure to relet.
2. Enter upon and take possession of the Premises and expel
or remove Tenant or any other person who may be
occupying said Premises, or any part thereof, without
liability therefor and without terminating this Lease.
Landlord may (but shall be under no obligation to) relet
the Premises or any part thereof for the account of
Tenant, upon such terms, conditions and uses as Landlord
in its absolute discretion may determine, and Landlord
may collect and receive any rents payable by reason of
such reletting. Tenant agrees to pay Landlord on demand
all costs of reletting and any deficiency that may arise
by reason of such reletting or failure to relet.
Landlord shall not be responsible or liable for any
failure to relet the Premises. No such re-entry or
taking of possession of the Premises by Landlord shall
be construed as an election on Landlord's part to
terminate this Lease unless a written notice of such
termination is given to Tenant.
3. Terminate this Lease, in which event, Tenant shall
immediately surrender the Premises to Landlord and pay
to Landlord the sum of: (a) all Rent accrued hereunder
through the date of termination, and, upon Landlord's
12
15
determination thereof, (b) an amount equal to the total
Rent that Tenant would have been required to pay for the
remainder of the Lease Term discounted to present value
at the prime rate then in effect, minus the then present
fair rental value of the Premises for the remainder of
the Lease Term, similarly discounted, after deducting
all anticipated costs of reletting. Landlord's
determination of such amount shall be conclusive and
binding on Tenant, and shall be deemed to have been made
in good faith, subject only to manifest error.
B. No right or remedy herein conferred upon or reserved to Landlord
is intended to be exclusive of any other right or remedy, and
each and every right and remedy shall be cumulative and in
addition to any other right or remedy given hereunder or now or
hereafter existing by agreement, applicable law or in equity.
Tenant shall be liable for all costs, expenses, and reasonable
attorneys' fees incurred by Landlord in connection with the
exercise of any of its remedies hereunder.
XXII. LIMITATION OF LIABILITY.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS LEASE, THE
LIABILITY OF LANDLORD (AND OF ANY SUCCESSOR LANDLORD HEREUNDER) TO TENANT SHALL
BE LIMITED TO THE INTEREST OF LANDLORD IN THE BUILDING, AND TENANT AGREES TO
LOOK SOLELY TO LANDLORD'S INTEREST IN THE BUILDING FOR THE RECOVERY OF ANY
JUDGMENT OR AWARD AGAINST THE LANDLORD, IT BEING INTENDED THAT NEITHER LANDLORD
NOR ANY MEMBER, PRINCIPAL, PARTNER, SHAREHOLDER, OFFICER, DIRECTOR OR
BENEFICIARY OF LANDLORD SHALL BE PERSONALLY LIABLE FOR ANY JUDGMENT OR
DEFICIENCY. TENANT HEREBY COVENANTS THAT, PRIOR TO THE FILING OF ANY SUIT FOR AN
ALLEGED DEFAULT BY LANDLORD HEREUNDER, IT SHALL GIVE LANDLORD AND ALL MORTGAGEES
WHOM TENANT HAS BEEN NOTIFIED HOLD MORTGAGES OR DEED OF TRUST LIENS ON THE
PROPERTY, BUILDING OR PREMISES NOTICE AND REASONABLE TIME TO CURE SUCH ALLEGED
DEFAULT BY LANDLORD.
XXIII. NO WAIVER.
Failure of Landlord to declare any default immediately upon its
occurrence, or delay in taking any action in connection with an event of default
shall not constitute a waiver of such default, nor shall it constitute an
estoppel against Landlord. Failure by Landlord to enforce its rights with
respect to any one default shall not constitute a waiver of its rights with
respect to any subsequent default. Receipt by Landlord of Tenant's keys to the
Premises shall not constitute an acceptance or surrender of the Premises.
XXIV. RELOCATION. (INTENTIONALLY OMITTED)
XXV. HOLDING OVER.
In the event of holding over by Tenant after expiration or other
termination of this Lease or Tenant's right to possession, occupancy of the
Premises subsequent to such termination or expiration shall be that of a tenancy
at sufferance and in no event for month-to-month or year to-year, but Tenant
shall, throughout the entire holdover period, be subject to all the terms and
provisions of this Lease and shall pay for its use and occupancy an amount (on a
per month basis without reduction for any partial months during any such
holdover) equal to twice the sum of the Base Rental and Additional Base Rental
due for the period immediately preceding such holding over. No holding over by
Tenant or payments of money by Tenant to Landlord after the expiration of the
term of this Lease shall be construed to extend the Lease Term or prevent
Landlord from recovery of immediate possession of the Premises by summary
proceedings or otherwise. In addition to the obligation to pay the amounts set
forth above during any such holdover period, Tenant shall also be liable to
Landlord for all damage, including any consequential damage, which Landlord may
suffer by reason of any holding over by Tenant.
XXVI. SUBORDINATION TO MORTGAGES; ESTOPPEL CERTIFICATE.
Tenant accepts this Lease subject and subordinate to any mortgage, deed
of trust, ground lease or other lien presently existing or hereafter arising
upon the Premises, or upon the Building and/or the Property and to any renewals,
modifications, refinancings and extensions
13
16
thereof (any such mortgage, deed of trust, lease or other lien being hereinafter
referred to as a "Mortgage", and the person or entity having the benefit of same
being referred to hereinafter as a "Mortgagee"), but Tenant agrees that any such
Mortgagee shall have the right at any time to subordinate such Mortgage to this
Lease on such terms and subject to such conditions as such Mortgagee may deem
appropriate in its discretion. This clause shall be self-operative and no
further instrument of subordination shall be required. If any person shall
succeed to all or part of Landlord's interests in the Premises whether by
purchase, foreclosure, deed in lieu of foreclosure, power of sale, termination
of lease or otherwise, and if and as so requested or required by such
successor-in-interest, Tenant shall, without charge, attorn to such successor-
in-interest. Tenant agrees that it will from time to time upon request by
Landlord and, within five (5) days of the date of such request, execute and
deliver to such persons as Landlord shall request a subordination agreement or
an estoppel certificate or other similar statement in recordable form certifying
that this Lease is unmodified and in full force and effect, stating the dates to
which Rent and other charges payable under this Lease have been paid, stating
that Landlord is not in default hereunder and further stating such other matters
as Landlord shall reasonably require.
XXVII. NOTICE.
Whenever any demand, request, approval, consent or notice ("Notice")
shall or may be given to either of the parties by the other, each such Notice
shall be in writing and shall be sent by registered or certified mail with
return receipt requested, or sent by overnight courier service (such as Federal
Express) provided that if Tenant has vacated the Premises or is in default of
this Lease Landlord may serve notice by any manner permitted by Law. Any Notice
under this Lease delivered by registered or certified mail shall be deemed to
have been given and effective on the earlier of (a) the third day following the
day on which the same shall have been mailed with sufficient postage prepaid or
(b) the delivery date indicated on the return receipt. Notice sent by overnight
courier service shall be deemed given and effective upon the day after such
notice is delivered to or picked up by the overnight courier service. Either
party may, at any time, change its Notice Address by giving the other party
Notice stating the change and setting forth the new address.
XXVIII. LANDLORD'S LIEN. INTENTIONALLY OMITTED, PROVIDED THAT THE DELETION OF
THIS ARTICLE SHALL NOT BE CONSTRUED TO BE A WAIVER OF LANDLORD'S LIEN RIGHTS AS
PROVIDED BY LAW.
XXIX. EXCEPTED RIGHTS.
This Lease does not grant any rights to light or air over or about the
Building. Landlord specifically excepts and reserves to itself the use of such
areas within the Premises as are required for installation of utility lines and
other installations required to serve any occupants of the Building and the
right to maintain and repair the same, and no rights with respect thereto are
conferred upon Tenant unless otherwise specifically provided herein. Landlord
further reserves to itself the right from time to time: (a) to change the
Building's name or street address; (b) to install, fix and maintain signs on the
exterior and interior of the Building; (c) to designate and approve window
coverings; (d) to make any decorations, alterations, additions, improvements to
the Building, or any part thereof (including the Premises) which Landlord shall
desire, or deem necessary for the safety, protection, preservation or
improvement of the Building, or as Landlord may be required to do by law; (e) to
retain at all times and to use passkeys to all locks within and into the
Premises (subject to Tenant's Security Rights as set forth below in this
paragraph); (f) to approve the weight, size, or location of heavy equipment and
articles in and about the Premises; (g) to close or restrict access to the
Building at all times other than normal business hours subject to Tenant's right
to admittance at all times under such regulations as Landlord may prescribe from
time to time, or to close (temporarily or permanently) any of the entrances to
the Building subject to Tenant's security rights as set forth in Exhibit B.5. of
this Lease; (h) to change the arrangement and/or location of entrances of
passageways, doors and doorways, and Common Areas of the Building; (i) if Tenant
has vacated the Premises during the last six (6) months of the Lease Term, to
perform additions, alterations and improvements to the Premises in connection
with a reletting or anticipated reletting thereof without being responsible or
liable for the value or preservation of any then existing improvements to the
Premises; and (j) to grant to anyone the exclusive right to conduct any business
or undertaking in the Building.
Tenant shall have the right ("Tenant's Security Rights") to install such
security systems in or about the Premises to control access to and from the
Premises, including but not limited to camera surveillance systems, controlling
and monitoring access to and from the Premises, all of
14
17
which may be independent of Landlord's access control system, and Tenant shall
have the right to limit and restrict access thereto; provided that Landlord
shall be provided a card or key(s) for access in emergencies or as otherwise
permitted pursuant to this Lease; provided that any such other or additional
security systems installed by Tenant shall not interfere with Landlord's
security system with respect to other tenant's in the Building. The cost of
Tenant's security system shall be at Tenant's sole cost.
XXX. SURRENDER OF PREMISES.
At the expiration or earlier termination of this Lease or Tenant's right
of possession hereunder, Tenant shall remove all Tenant's Property from the
Premises, remove all Required Removables designated by Landlord and quit and
surrender the Premises to Landlord, broom clean, and in good order, condition
and repair, ordinary wear and tear and damage by fire or casualty OR BY COMPUTER
ASSOCIATES excepted. If Tenant fails to remove any of Tenant's Property within
one (1) day after the termination of this Lease or Tenant's right to possession
hereunder, Landlord, at Tenant's sole cost and expense, shall be entitled to
remove and/or store such Tenant's Property and Landlord shall in no event be
responsible for the value, preservation or safekeeping thereof. Tenant shall pay
Landlord, upon demand, any and all expenses caused by such removal and all
storage charges against such property so long as the same shall be in the
possession of Landlord or under the control of Landlord. In addition, if Tenant
fails to remove any Tenant's Property from the Premises or storage, as the case
may be, within ten (10) days after written notice from Landlord, Landlord, at
its option, may deem all or any part of such Tenant's Property to have been
abandoned by Tenant and title thereof shall immediately pass to Landlord.
XXXI. MISCELLANEOUS.
Landlord and Tenant hereby agree that: (a) If any term or provision of
this Lease shall, to any extent, be invalid or unenforceable, the remainder of
this Lease shall not be affected thereby, and each term and provision of this
Lease shall be valid and enforced to the fullest extent permitted by law; (b)
Tenant shall not record this Lease or any memorandum hereof; (c) This Lease
shall be interpreted, construed, and enforced in accordance with the laws of the
state in which the Building is located; (d) Events of "Force Majeure" shall
include strikes, riots, acts of God, shortages of labor or materials, war,
governmental law, regulations or restrictions and any other cause whatsoever
that is beyond the control of Landlord and whenever a period of time is herein
prescribed for the taking of any action by Landlord, Landlord shall not be
liable or responsible for, and there shall be excluded from the computation of
such period of time, any delays due to events of Force Majeure; (e) Landlord
shall have the right to transfer and assign, in whole or in part, all of its
rights and obligations hereunder and in the Building and Property referred to
herein, and in such event and upon such transfer Landlord shall be released from
any further obligations hereunder, and Tenant agrees to look solely to such
successor in interest of Landlord for the performance of such obligations;
(f)(1) Tenant hereby represents to Landlord that it has dealt directly with and
only with the Broker as a broker in connection with this Lease, Tenant agrees to
indemnify and hold Landlord and the Landlord Related Parties harmless from all
claims of any brokers claiming to have represented Tenant in connection with
this Lease. Landlord agrees to indemnify and hold Tenant and the Tenant Related
Parties harmless from all claims of any brokers claiming to have represented
Landlord in connection with this Lease. Landlord agrees to pay a brokerage
commission to Broker in accordance with the terms of a written commission
agreement between Landlord and Broker. (2) Agency Disclosure. At the signing of
this Lease, Landlord's leasing agent, Xxxxxx Xxxx, of Xxxxxx Runstad & Company,
represented (X) Landlord. At the signing of this Lease, Tenant's agent, Xxx
Xxxxxxxx, of Leibsohn & Company, represented (X) Tenant. Each party signing this
document confirms that the prior oral and/or written disclosure of agency was
provided to such party in this transaction, as required by RCW 18.86.030(l)(g).
(3) Landlord and Tenant, by their execution of this Lease, each acknowledge and
agree that they have timely received a pamphlet on the law of real estate agency
as required under RCW 18.86.030(1)(f); (g) If there is more than one Tenant, or
if the Tenant is comprised of more than one person or entity, the obligations
hereunder imposed upon Tenant shall be joint and several obligations of all such
parties and all notices, payments, and agreements given or made by, with or to
any one of such persons or entities shall be deemed to have been given or made
by, with or to all of them; (h) In the event Tenant is a corporation (including
any form of professional association), partnership (general or limited), or
other form of organization other than an individual (each such entity is
individually referred to herein as an "Organizational Entity"), then each
individual executing or attesting this Lease on behalf of Tenant hereby
covenants, warrants and represents: (1) that
15
18
such individual is duly authorized to execute or attest and deliver this Lease
on behalf of Tenant in accordance with the organizational documents of Tenant;
(2) that this Lease is binding upon Tenant; (3) that Tenant is duly organized
and legally existing in the state of its organization, and is qualified to do
business in the state in which the Premises is located; (4) that the execution
and delivery of this Lease by Tenant will not result in any breach of, or
constitute a default under, any mortgage, deed of trust, lease, loan, credit
agreement, partnership agreement or other contract or instrument to which Tenant
is a party or by which Tenant may be bound; (j) With respect to all required
acts of Tenant, time is of the essence of this Lease; (k) This Lease and the
covenants and conditions herein contained shall inure to the benefit of and be
binding upon Landlord and Tenant and their respective permitted successors and
assigns; (l) Notwithstanding anything to the contrary contained in this Lease,
the expiration of the Lease Term, whether by lapse of time or otherwise, shall
not relieve Tenant from Tenant's obligations accruing prior to the expiration of
the Lease Term and such obligations shall survive any such expiration or other
termination of the Lease Term; (m) The headings and titles to the paragraphs of
this Lease are for convenience only and shall have no effect upon the
construction or interpretation of any part hereof; (n) This Lease may be
modified only by a written agreement signed by Landlord and Tenant; (o) Landlord
has delivered a copy of this Lease to Tenant for Tenant's review only, and the
delivery hereof does not constitute an offer to Tenant or option. This Lease
shall not be effective until an original of this Lease executed by both Landlord
and Tenant and an original Guaranty, if any, executed by each Guarantor is
delivered to and accepted by Landlord, and this Lease has been approved by
Landlord's Mortgagees, if required.
XXXII. ENTIRE AGREEMENT.
This Lease Agreement, including the following Exhibits, constitutes the
entire agreement between the parties hereto with respect to the subject matter
of this Lease: (a) Exhibit A-Outline and Location of Premises; (a-2) Exhibit
A-2-Legal Description of Property; (b) Exhibit B-Rules and Regulations; (c)
Exhibit C-Commencement Letter (Intentionally Omitted); (d) Exhibit D-Work Letter
Agreement (Intentionally Omitted); and (e) Exhibit E-Additional Provisions.
16
19
LANDLORD: EOP NORTHWEST PROPERTIES, L.L.C.
a Delaware limited liability company
By: EOP Northwest Properties, Inc.,
a Delaware corporation, its manager
By: /s/ XXX XXXXX
--------------------------------------
Name: Xxx Xxxxx
Title: Regional Vice President
TENANT: BSQUARE CORPORATION,
a Washington corporation
By: /s/ XXXXXX X. XXXXXX
-------------------------------------------
Name: Xxxxxx X. Xxxxxx
-------------------------------------------
Title: Senior Vice President Operations
-------------------------------------------
LANDLORD ACKNOWLEDGMENTS
STATE OF COLORADO )
) ss.
COUNTY OF ARAPAHOE )
I, the undersigned, a Notary Public, in and for the County and State
aforesaid, do hereby certify that Xxx Xxxxx, personally known to me to be the
Vice President of EOP Northwest Properties, Inc., a Delaware corporation,
manager of EOP Northwest Properties, L.L.C. a Delaware limited liability
company, and personally known to me to be the same person whose name is
subscribed to the foregoing instrument, appeared before me this day in person
and acknowledged that as such officer of said entities being authorized so to
do, (s)he executed the foregoing instrument on behalf of said entities, by
subscribing the name of such entities by (her)himself as such officer, as a free
and voluntary act, and as the free and voluntary act and deed of said entities,
for the uses and purposes therein set forth.
GIVEN under my hand and official seal this 14th day of December, 1998.
Notary Public /s/ XXXXXXXX XXXXXXXX
Printed Name Xxxxxxxx Xxxxxxxx
Residing at 00000 X. Xxxxx
Xx xxx xxxxx xx Xxxxxxxx
[SEAL]
My Commission Expires: 2/18/02
TENANT ACKNOWLEDGMENTS
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
On this the 11th day of December, 1998, before me a Notary Public duly
authorized in and for the said County in the State aforesaid to take
acknowledgments personally appeared Xxxxxx X. Xxxxxx known to me to be Senior
Vice President of Operations, BSQUARE Corporation, one of the parties described
in the foregoing instrument, and acknowledged that as such officer, being
authorized so to do, (s)he executed the foregoing instrument on behalf of said
corporation by subscribing the name of such corporation by himself/herself as
such officer and caused the corporate seal of said corporation to be affixed
thereto, as a free and voluntary act, and as the free and voluntary act of said
corporation, for the uses and purposes therein set forth.
IN WITNESS WHEREOF, I hereunto set my hand and official seal as of the
date set forth above.
/s/ XXXXXXX X. XXXXX
--------------------------------------
Notary Public
My Commission Expires: June 6, 2002
17
20
EXHIBIT A
OUTLINE AND LOCATION OF PREMISES
This exhibit is attached to and made a part of the Lease dated December
14, 1998, by and between EOP NORTHWEST PROPERTIES, L.L.C., A DELAWARE LIMITED
LIABILITY COMPANY ("Landlord") and BSQUARE CORPORATION, A WASHINGTON CORPORATION
("Tenant") for space in the building located at 000 000xx Xxxxxx XX, Xxxxxxxx,
XX 00000.
[FLOORPLAN]
ONE BELLEVUE CENTER
FLOOR 6
11/21/98
18
21
EXHIBIT A-2
LEGAL DESCRIPTION OF PROPERTY
This Exhibit is attached to and made a part of the Lease dated
________________, 1998, EOP Northwest Properties, L.L.C., a Delaware limited
liability company ("Landlord") and BSQUARE Corporation, a Washington corporation
("Tenant") for space in the Building located at 000 000xx Xxxxxx XX, Xxxxxxxx,
XX 00000.
Lot 1, as delineated on City of Bellevue Short Plat No. 81-08 R, recorded under
King County Recording No. 8201069002 (as amended by instrument recorded under
King County Recording No. 8202040368), being more particularly described as
follows:
That portion of the South one-half of Xxx 0 xx Xxxxx 0 xx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxx Xx. 0 as per plat recorded in Volume 7 of plats, page 47, records
of King County, EXCEPT the East 230 feet of the North 100 feet, and EXCEPT the
East 30 feet thereof deeded to King County for road by deeds recorded under
Auditor's File Nos. 913743 and 913775 records of King County, Washington, and
less the South 13.5 feet thereof, more particularly described as follows:
Beginning at the most southeasterly corner of the above described parcel of
land; thence North 88 degrees 51'21" West along the South line of the above
described parcel of land, 231.75 feet; thence North 01 degrees 11'05" East,
285.52 feet; thence South 88 degrees 46'31" East, 26.31 feet; thence South 00
degrees 06'00" West, 84.00 feet; thence South 88 degrees 48'55" East, 200.04
feet to the East line of the above described parcel of land; thence South 00
degrees 06'00" West along said East line, 201.39 feet to the Point of Beginning.
The above property being situated in the Northeast quarter of the Northwest
quarter of Section 32, Township 25 North, Range 0 Xxxx, X.X., Xxxx xx Xxxxxxxx,
Xxxx Xxxxxx, Xxxxxxxxxx.
19
22
EXHIBIT B
BUILDING RULES AND REGULATIONS
The following rules and regulations shall apply, where applicable, to the
Premises, the Building, the parking garage associated therewith (if any), the
Property and the appurtenances thereto:
1. Sidewalks, doorways, vestibules, halls, stairways and other similar
areas shall not be obstructed by Tenant or used by Tenant for any
purpose other than ingress and egress to and from the Premises. No
rubbish, litter, trash, or material of any nature shall be placed,
emptied, or thrown in those areas. At no time shall Tenant permit
Tenant's employees to loiter in common areas or elsewhere in or about
the Building or Property.
2. Plumbing fixtures and appliances shall be used only for the purposes for
which designed, and no sweepings, rubbish, rags or other unsuitable
material shall be thrown or placed therein. Damage resulting to any such
fixtures or appliances from misuse by Tenant or its agents, employees or
invitees, shall be paid for by Tenant, and Landlord shall not in any
case be responsible therefor.
3. No signs, advertisements or notices shall be painted or affixed on or to
any windows, doors or other parts of the Building, except those of such
color, size, style and in such places as shall be first approved in
writing by Landlord. No nails, hooks or screws shall be driven or
inserted into any part of the Premises or Building except by the
Building maintenance personnel except for the purpose of hanging
pictures and normal office decorations, nor shall any part of the
Building be defaced by Tenant.
4. Landlord may provide and maintain in the first floor (main lobby) of the
Building an alphabetical directory board listing all Tenants, and no
other directory shall be permitted unless previously consented to by
Landlord in writing.
5. Intentionally Omitted
6. All contractors, contractor's representatives, and installation
technicians performing work in the Building shall be subject to
Landlord's prior approval and shall be required to comply with
Landlord's standard rules, regulations, policies and procedures, as the
same may be revised from time to time. Tenant shall be solely
responsible for complying with all applicable laws, codes and ordinances
pursuant to which said work shall be performed.
7. Movement in or out of the Building of furniture or office equipment, or
dispatch or receipt by Tenant of any merchandise or materials which
require the use of elevators, stairways, lobby areas, or loading dock
areas, shall be restricted to hours designated by Landlord. Tenant must
seek Landlord's prior approval by providing in writing a detailed
listing of any such activity. If approved by Landlord, such activity
shall be under the supervision of Landlord and performed in the manner
stated by Landlord. Landlord may prohibit any article, equipment or any
other item from being brought into the Building. Tenant is to assume all
risk for damage to articles moved and injury to any persons resulting
from such activity. If any equipment, property, and/or personnel of
Landlord or of any other tenant is damaged or injured as a result of or
in connection with such activity, Tenant shall be solely liable for any
and all damage or loss resulting therefrom.
8. Landlord shall have the power to prescribe the weight and position of
safes and other heavy equipment or items, which in all cases shall not
in the opinion of Landlord exceed acceptable floor loading and weight
distribution requirements. All damage done to the Building by the
installation, maintenance, operation, existence or removal of any
property of Tenant shall be repaired at the expense of Tenant.
9. Corridor doors, when not in use, shall be kept closed.
10. Tenant shall not: (1) make or permit any improper, objectionable or
unpleasant noises or odors in the Building, or otherwise interfere in
any way with other tenants or persons having business with them; (2)
solicit business or distribute, or cause to be distributed,
20
23
in any portion of the Building any handbills, promotional materials or
other advertising; or (3) conduct or permit any other activities in the
Building that might constitute a nuisance.
11. No animals, except seeing eye dogs, shall be brought into or kept in, on
or about the Premises.
12. No inflammable, explosive or dangerous fluid or substance shall be used
or kept by Tenant in the Premises or Building. Tenant shall not, without
Landlord's prior written consent, use, store, install, spill, remove,
release or dispose of within or about the Premises or any other portion
of the Property, any asbestos-containing materials or any solid, liquid
or gaseous material now or hereafter considered toxic or hazardous under
the provisions of 42 U.S.C. Section 9601 et seq. or any other applicable
environmental law which may now or hereafter be in effect except for
normal office and cleaning supplies used under all applicable laws. If
Landlord does give written consent to Tenant pursuant to the foregoing
sentence, Tenant shall comply with all applicable laws, rules and
regulations pertaining to and governing such use by Tenant, and shall
remain liable for all costs of cleanup or removal in connection
therewith.
13. Tenant shall not use or occupy the Premises in any manner or for any
purpose which would injure the reputation or impair the present or
future value of the Premises or the Building; without limiting the
foregoing, Tenant shall not use or permit the Premises or any portion
thereof to be used for lodging, sleeping or for any illegal purpose.
14. Tenant shall not take any action which would violate Landlord's labor
contracts affecting the Building or which would cause any work stoppage,
picketing, labor disruption or dispute, or any interference with the
business of Landlord or any other tenant or occupant of the Building or
with the rights and privileges of any person lawfully in the Building.
Tenant shall take any actions necessary to resolve any such work
stoppage, picketing, labor disruption, dispute or interference and shall
have pickets removed and, at the request of Landlord, immediately
terminate at any time any construction work being performed in the
Premises giving rise to such labor problems, until such time as Landlord
shall have given its written consent for such work to resume. Tenant
shall have no claim for damages of any nature against Landlord or any of
the Landlord Related Parties in connection therewith, nor shall the date
of the commencement of the Term be extended as a result thereof.
15. Tenant shall utilize the termite and pest extermination service
designated by Landlord to control termites and pests in the Premises
except as included in Basic Costs. Tenant shall bear the cost and
expense of such extermination services.
16. Tenant shall not install, operate or maintain in the Premises or in any
other area of the Building, any electrical equipment which does not bear
the U/L (Underwriters Laboratories) seal of approval, or which would
overload the electrical system or any part thereof beyond its capacity
for proper, efficient and safe operation as determined by Landlord,
taking into consideration the overall electrical system and the present
and future requirements therefor in the Building. Tenant shall not
furnish any cooling or heating to the Premises, including, without
limitation, the use of any electronic or gas heating devices, without
Landlord's prior written consent. Tenant shall not use more than its
proportionate share of telephone lines available to service the
Building.
17. Tenant shall not operate or permit to be operated on the Premises any
coin or token operated vending machine or similar device (including,
without limitation, telephones, lockers, toilets, scales, amusement
devices and machines for sale of beverages, foods, candy, cigarettes or
other goods), except for those vending machines or similar devices which
are for the sole and exclusive use of Tenant's employees, and then only
if such operation does not violate the lease of any other tenant of the
Building.
18. Bicycles and other vehicles are not permitted inside or on the walkways
outside the Building, except in those areas specifically designated by
Landlord for such purposes.
19. Landlord may from time to time adopt appropriate systems and procedures
for the security or safety of the Building, its occupants, entry and
use, or its contents. Tenant, Tenant's agents, employees, contractors,
guests and invitees shall comply with Landlord's reasonable requirements
relative thereto subject to Tenant's Security Rights as set forth above.
21
24
20. Landlord shall have the right to prohibit the use of the name of the
Building or any other publicity by Tenant that in Landlord's opinion may
tend to impair the reputation of the Building or its desirability for
Landlord or other tenants. Upon written notice from Landlord, Tenant
will refrain from and/or discontinue such publicity immediately.
21. Tenant shall carry out Tenant's permitted repair, maintenance,
alterations, and improvements in the Premises only during times agreed
to in advance by Landlord and in a manner which will not interfere with
the rights of other tenants in the Building.
22. Canvassing, soliciting, and peddling in or about the Building is
prohibited. Tenant shall cooperate and use its best efforts to prevent
the same.
23. At no time shall Tenant permit or shall Tenant's agents, employees,
contractors, guests, or invitees smoke in any common area of the
Building, unless such common area has been declared a designated smoking
area by Landlord.
24. Tenant shall observe Landlord's rules with respect to maintaining
standard window coverings at all windows in the Premises so that the
Building presents a uniform exterior appearance. Tenant shall ensure
that to the extent reasonably practicable, window coverings are closed
on all windows in the Premises while they are exposed to the direct rays
of the sun.
25. All deliveries to or from the Premises shall be made only at such times,
in the areas and through the entrances and exits designated for such
purposes by Landlord. Tenant shall not permit the process of receiving
deliveries to or from the Premises outside of said areas or in a manner
which may interfere with the use by any other tenant of its premises or
of any common areas, any pedestrian use of such area, or any use which
is inconsistent with good business practice.
26. The work of cleaning personnel shall not be hindered by Tenant after
5:30 P.M., and such cleaning work may be done at any time when the
offices are vacant. Windows, doors and fixtures may be cleaned at any
time. Tenant shall provide adequate waste and rubbish receptacles
necessary to prevent unreasonable hardship to Landlord regarding
cleaning service.
22
25
EXHIBIT C
(Intentionally Omitted)
23
26
EXHIBIT D
WORK LETTER
(Intentionally Omitted)
24
27
EXHIBIT E
ADDITIONAL PROVISIONS
This Exhibit is attached to and made a part of the Lease dated December 14,
1998, by and between EOP Northwest Properties, L.L.C., a Delaware limited
liability company ("Landlord") and BSQUARE Corporation, a Washington corporation
("Tenant"), for space in the Building located at 000 000xx Xxxxxx XX, Xxxxxxxx,
Xxxxxxxxxx 00000.
I. PARKING.
A. During the initial Lease Term, Landlord shall lease to Tenant,
or cause the operator (the "Operator") of the garage servicing
the Building (the "Garage") to lease to Tenant, and Tenant shall
lease from Landlord or such Operator, up to twenty five (25)
unreserved parking spaces in the Garage (the "Spaces") for the
use of Tenant and its employees. The Spaces shall be leased at
the rate of $105.00 per Space, per month, plus applicable tax
thereon. Should Tenant's occupancy at One Bellevue Center be
extended past November 30, 1999, the parking rate, effective
December 1, 1999, shall be the then current market rate, which
rate may be adjusted from time to time to reflect the then
current rate for parking in the Garage. If requested by
Landlord, Tenant shall execute and deliver to Landlord the
standard parking agreement used by Landlord or the Operator (the
"Parking Agreement") in the Garage for such Spaces.
B. No deductions or allowances shall be made for days when Tenant
or any of its employees does not utilize the parking facilities
or for Tenant utilizing less than all of the Spaces. Tenant
shall not have the right to lease or otherwise use more than the
number of reserved and unreserved Spaces set forth above.
C. Except for particular spaces and areas designated by Landlord or
the Operator for reserved parking, all parking in the Garage
shall be on an unreserved, first-come, first-served basis.
D. Neither Landlord nor the Operator shall be responsible for
money, jewelry, automobiles or other personal property lost in
or stolen from the Garage or the surface parking areas
regardless of whether such loss or theft occurs when the Garage
or other areas therein are locked or otherwise secured. Except
as caused by the negligence or willful misconduct of Landlord
and without limiting the terms of the preceding sentence,
Landlord shall not be liable for any loss, injury or damage to
persons using the Garage or the surface parking areas or
automobiles or other property therein, it being agreed that, to
the fullest extent permitted by law, the use of the Spaces shall
be at the sole risk of Tenant and its employees.
E. Landlord or its Operator shall have the right from time to time
to designate the location of the Spaces and to promulgate
reasonable rules and regulations regarding the Garage, the
surface parking areas, if any, the Spaces and the use thereof,
including, but not limited to, rules and regulations controlling
the flow of traffic to and from various parking areas, the angle
and direction of parking and the like. Tenant shall comply with
and cause its employees to comply with all such rules and
regulations, all reasonable additions and amendments thereto,
and the terms and provisions of the Parking Agreement.
F. Tenant shall not store or permit its employees to store any
automobiles in the Garage or on the surface parking areas
without the prior written consent of Landlord. Except for
emergency repairs, Tenant and its employees shall not perform
any work on any automobiles while located in the Garage or on
the Property. If it is necessary for Tenant or its employees to
leave an automobile in the Garage or on the surface parking
areas overnight, Tenant shall provide Landlord with prior notice
thereof designating the license plate number and model of such
automobile.
G. Landlord or the Operator shall have the right to temporarily
close the Garage or certain areas therein in order to perform
necessary repairs, maintenance and improvements to the Garage or
the surface parking areas, if any.
H. Tenant shall not assign or sublease any of the Spaces without
the consent of Landlord. Landlord shall have the right to
terminate the agreement contained in this Section I or in the
Parking Agreement with respect to any Spaces that Tenant desires
to sublet or assign.
25
28
I. Landlord may elect to provide parking cards or keys to control
access to the Garage or surface parking areas, if any. In such
event, Landlord shall provide Tenant with one card or key for
each Space that Tenant is leasing hereunder, provided that
Landlord shall have the right to require Tenant or its employees
to place a deposit on such access cards or keys and to pay a fee
for any lost or damaged cards or keys.
II. RENEWAL OPTION
A. The Lease Term shall be automatically extended for six (6)
consecutive periods of one (1) month each commencing on the day
following the Termination Date of the initial Lease Term (each
such month being a "Renewal Term") unless sooner terminated by
Tenant by written notice of termination delivered to Landlord,
provided that:
1. Landlord must receive written notice from Tenant of
Tenant's intent to vacate the Premises not less than one
(1) full calendar month prior to the expiration of the
initial Lease Term or any Renewal Term; and
2. If Tenant is in default under the Lease beyond any
applicable cure periods Landlord shall have all rights
set forth in Article XXI; and
3. No part of the Premises may be sublet by Tenant during
any Renewal Term; and
4. The Lease may not be assigned during any Renewal Term.
B. The terms of the Lease for the Premises during the Renewal Term
shall be the same terms and conditions described in the Lease,
except as stated in Section III.B hereunder, and the Base Rental
for each Renewal Term shall be the same Base Rent payable in the
last month of the Initial Term.
III. CONTINGENCIES
A. This Lease is contingent upon the termination of that certain
lease dated January 24, 1994 (the "Prior Tenant Lease"), by and
between Landlord (as successor in interest to One Bellevue
Center Joint Venture, a Washington general partnership), and
Computer Associates International, Inc. a Delaware corporation
(as successor in interest to Legent Corporation, a Delaware
corporation) ("Prior Tenant") relating to approximately 21,106
rentable square feet (the "Prior Tenant Space") on the 5th and
6th floors of the Building, which Prior Tenant Space includes
all or a portion of the Premises to be leased to Tenant pursuant
to the terms of this Lease. Landlord currently is negotiating
the terms of an agreement with Prior Tenant to terminate the
Prior Tenant Lease (the "Prior Tenant Termination Agreement").
If Landlord fails to enter into, and notify Tenant thereof, the
Prior Tenant Termination Agreement with Prior Tenant on or
before the December 13, 1998, then Landlord or Tenant may
terminate this Lease by providing written notice thereof to the
other party on or before December 14, 1998.
B. Provided that this Section III.B. does not apply if Landlord
acts in bad faith and Landlord withdraws from negotiations,
Section II.B. above and Section I.A.2. of this Lease are
strictly contingent upon Landlord's receipt on or before June 1,
1999, of a copy of a fully executed lease agreement for
approximately 94,000 (or more) square feet of office space
between Tenant and the landlord for the property known as Sunset
North, located at the NE corner of the intersection of 139th
Avenue SE and SE 32nd St. in Bellevue, King County, Washington.
In the event, Tenant is unable to enter into said lease
agreement, or deliver a copy thereof to Landlord as described
above in this Section III.B, then Section I.A.2. of this Lease
shall be automatically deleted and the following substituted
therefor:
"Base Rental" shall mean the sum of THREE HUNDRED
TWENTY-NINE THOUSAND THREE HUNDRED NINETY-TWO and 53/100
Dollars ($329,392.53), payable by Tenant to Landlord in
NINE (9) monthly installments as follows:
26
29
a. ONE (1) installment of TWENTY THOUSAND THIRTY
AND 63/100 DOLLARS ($20,030.63, I.E. $1,112.81
PER DIEM X 18 DAYS) payable upon the execution
of this Lease by Tenant for the period beginning
DECEMBER 14, 1998 and ending DECEMBER 31, 1998.
b. FIVE (5) equal installments of THIRTY THREE
THOUSAND THREE HUNDRED EIGHTY FOUR and 38/100
Dollars ($33,384.38), each payable on or before
the first day of each month during the period
beginning JANUARY 1, 1999, and ending MAY 31,
1999, provided that the Base Rental for the
first full calendar month of the Lease Term
shall be payable upon the execution of this
Lease by Tenant.
c. THREE (3) equal installments of FORTY SEVEN
THOUSAND FOUR HUNDRED EIGHTY and NO/100 Dollars
($47,480.00), each payable on or before the
first day of each month during the period
beginning JUNE 1, 1999 and ending AUGUST 31,
1999.
IN WITNESS WHEREOF, Landlord and Tenant have executed this exhibit as of the day
and year first above written.
LANDLORD: EOP NORTHWEST PROPERTIES, L.L.C.
a Delaware limited liability company
By: EOP Northwest Properties, Inc.,
a Delaware corporation, its manager
By: /s/ XXX XXXXX
-----------------------------------
Name: Xxx Xxxxx
Title: Regional Vice President
TENANT: BSQUARE Corporation,
a Washington corporation
By: /s/ XXXXXX X. XXXXXX
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
-----------------------------------------
Title: S.VP Operations
-----------------------------------------
27
