EXHIBIT 10.56
Agreement of Lease
This Agreement of Lease (the "Lease"), dated as of the 20th day of February,
1998, is by and between SIXTH & VIRGINIA PROPERTIES, a Washington General
Partnership, hereinafter called "Owner," and Starwave Corporation, a Washington
Corporation, hereinafter called "Tenant."
1 NONSTANDARD PROVISIONS
The following constitute the nonstandard provisions of this Lease:
A. FLOORS OF THE WESTIN BUILDING ON WHICH PREMISES ARE LOCATED:
34th (Suite 3425) and 9th (Suite 912) (collectively, the
"Premises")
B. AGREED FLOOR AREA OF PREMISES:
Approximately Three Thousand Two Hundred Two (3,201) square feet on
the 34th floor and approximately One Thousand Five Hundred Forty Nine
(1,549) square feet on the 9th floor both of which include an
allowance for core and/or common areas used by Tenant (the "Total
Agreed Floor Area"). The 34th floor Premises is comprised of 2,838
usable square feet and the 9th floor Premises is comprised of 1,354
useable square feet. Monthly Base Rent, as defined below, is based on
the Total Agreed Floor Area.
C. LEASE TERM:
This Lease shall commence on the 1st day of March, 1998, and
terminate on the 30th day of November, 2000.
D. MONTHLY BASE RENT:
March 1, 1998 - October 31, 1999: $ 9,502.00 per month
November 1, 1999 - November 30, 2000: $10,569.00 per month
E. RENT PER DAY during any occupancy prior to commencement of Lease Term:
None
F. REIMBURSEMENT TO OWNER FOR SPECIAL IMPROVEMENTS:
Tenant shall take the Premises "as is." Tenant shall remove any
existing improvements and install and supply any new improvements to
the Premises at Tenant's cost. All such improvements shall be
completed in accordance with drawings prepared at Tenant's cost and
approved in advance by Owner, which approval shall not be unreasonably
withheld, conditioned or delayed. In the event Tenant elects to
contract with Owner to install and supply improvements to the
Premises, Tenant shall reimburse Owner for all work within ten (10)
days of invoice.
G. USE PERMITTED ON PREMISES:
On the 34th floor, General Office Use and Internet Communication
Operation Center, On the 9th floor, Internet Communication Facility,
General Office Use and Internet Communication Operations Center
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H. TENANT'S AND OWNER'S ADDRESSES FOR NOTICES:
If to Tenant:
------------
Starwave Corporation
The Westin Building, Suite 3425
0000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Vice President of Web Operations
With copy to:
------------
Starwave Corporation
00000 XX Xxxxxxxx Xxx, Xxxxx 000
Xxxxxxxx XX 00000
Attn: Legal Department
If to Owner:
-----------
Sixth & Virginia Properties
Xxx Xxxxxx Xxxxxxxx, Xxxxx 000
0000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Building Manager
I. TENANT'S BILLING ADDRESS IF OTHER THAN PREMISES:
Starwave Corporation
00000 XX Xxxxxxxx Xxx, Xxxxx 000
Xxxxxxxx XX 00000
Attn: Accounts Payable
J. PARKING:
During the Lease Term, Owner shall provide Tenant with unreserved
parking spaces, including an appropriate pro-rata share of "carpool"
stalls, for four (4) automobiles in The Westin Building Garage.
Additionally, subject to month to month availability as determined by
Owner, Owner may provide Tenant with up to twelve (12) additional
parking spaces. Parking spaces shall be provided from 7:00 a.m. to
6:00 p.m. Monday through Friday (the "Normal Parking Hours"), and as
otherwise available outside of Normal Parking Hours. Tenant
acknowledges that parking spaces may not always be available outside
of Normal Parking Hours.
Tenant shall pay in advance the monthly charge established by Owner for
said parking spaces, on the same date that monthly rent is due hereunder.
If Tenant fails to pay such charges when due, Owner may (i) immediately
cease to provide the parking spaces for which Tenant has failed to pay, or
(ii) continue to provide the parking spaces and require that Tenant pay the
monthly parking charge, with interest at 12% per annum, from the date due.
Tenant may discontinue future use and payment for any parking space upon
written notice to Owner. Tenant shall not be entitled to any rebate for
discontinued use of any parking space prior to the end of the month. Upon
initial occupancy of Garage, the charge for each parking space shall be One
Hundred Seventy Dollars ($ 170.00) per month (including tax). From time to
time during this Lease, the charge for parking spaces may be increased to
the then-prevailing rate for similar parking services in the immediate
area.
Owner shall maintain the right to pass on to Tenant all applicable
parking taxes. Parking taxes shall not include real estate taxes for
the Garage or any federal income tax.
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K. RELOCATION OF PREMISES:
Owner shall have the right to relocate Tenant from the 34th Floor
Premises in the Building only on the following terms and conditions:
1) The floor area of the replacement premises shall be approximately
the same as the floor area of the 34th Floor Premises. Monthly
Base Rent and Tenant's share of the annual rent adjustment, if
any, shall be adjusted to reflect the Total Agreed Floor Area of
the replacement premises;
2) Owner shall reimburse Tenant within ten (10) days of Tenant's
demand for all reasonable expenses incurred in connection with
the relocation, including, but not limited to, the cost of
putting the replacement premises in similar condition as the then
condition of the 34th Floor Premises, moving, signage, telephone
& computer equipment relocation and the provision of reasonable
quantities of new stationery;
3) Owner shall give Tenant at least one hundred eighty (180) days
written notice of relocation; and
4) The replacement premises will consist of all contiguous space and
will have comparable views and other comparable amenities as
existing in the Premises.
The provisions of this Article shall not apply to the 9th floor
Premises.
L. SECURITY DEPOSIT:
Concurrently with the execution of this Lease, Tenant shall deliver to
Owner a deposit equal to Ten Thousand Five Hundred Sixty Nine Dollars ($
10,569.00 ) as security for the performance by Tenant of every covenant and
condition to be performed by Tenant under this Lease. Upon payment of the
said deposit, Owner shall deliver to Tenant a written receipt therefor. The
deposit may be commingled with other funds of Owner, and Tenant shall not
be entitled to interest thereon. If Tenant shall default with respect to
any covenant or condition of this Lease, including but not limited to the
payment of Base Monthly Rent, additional rent or parking charges, and such
default is not cured after ten (10) days written notice as provided in
Article 14, Owner may, but shall not be required to, apply the whole or any
part of the deposit to the payment of any sum in default, and any other
reasonable amounts which Owner may be required to spend by reason of
Tenant's default. In the event Owner so applies all or any part of the
deposit, Tenant shall replenish the amount so applied within ten (10) days
of Owner's written demand. Should Tenant comply with all of the covenants
and conditions of this Lease, the deposit shall be returned to Tenant (or,
at the option of Owner, to the last assignee of Tenant's interest in this
Lease) at the expiration of the Lease Term. If the Owner assigns its
interest in this Lease, Owner shall not be relieved of its obligations to
Tenant hereunder until the security deposit is transferred to Owner's
assignee.
M. SIGNAGE:
Owner shall, at its own cost, provide signage to Tenant according to
building standards at Four (4) separate locations:
1) Main Lobby Directory - Sixth Avenue;
2) Third Floor Lobby Directory- Skybridge entrance from Garage;
3) Elevator Lobby Directory on 0xx Xxxxx; and
4) Elevator Lobby Directory on 34th Floor.
Tenant may, at Tenant's sole expense, and upon Owner's written approval,
which approval shall not be unreasonably withheld, conditioned or delayed,
affix building standard signage adjacent to the doors of the Premises. No
other signage shall be allowed.
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N. HOLDING OVER:
If Tenant shall continue its occupancy of the Premises after the expiration
of the Lease Term, the occupancy shall not be deemed to extend or renew the
term of this Lease, and such occupancy shall constitute a tenancy from
month to month, subject to all of the terms of this Lease, except the term,
and except that the Monthly Base Rent for each month of continued occupancy
shall be 150% of the Monthly Base Rent for the last full month of the Lease
Term. Tenant shall also be liable for Owner's incidental and consequential
damages sustained by virtue of Tenant's holding over.
O. SQUARE FOOTAGE ADJUSTMENT:
Owner and Tenant agree that reasonable attempts have been made to determine
the correct square footage of the Premises. Owner grants Tenant the option
to remeasure and challenge the square footage calculations set forth in
Article 1(b) hereof at Tenant's expense. If Tenant's square footage
calculations differ from the calculations set forth in Article 1(b), Owner
will remeasure at Owner's expense to determine which calculations are
correct. Owner and Tenant agree that any challenge to the square footage
calculations must be completed within one month of the commencement date of
this Lease. After that time, Owner and Tenant each agree to waive any and
all rights, claims, or liabilities against the other pertaining in any way
to the calculation of the square footage of the Premises, or the amount of
rents and other costs in this Lease as they relate to the square footage of
the Premises.
P. MEET-ME ROOM ACCESS
Tenant may have the privilege to use in common with other Building tenants
the 19th floor Meet-Me Room (the "Meet-Me Room") and associated wiring
systems, as determined by Owner in its sole discretion. Owner shall
supervise the maintenance of the Meet-Me Room by tenant-users. Tenant
agrees to abide by all written regulations for use of the Meet-Me Room
established jointly by Owner and tenant-users and provided to Tenant,
including, but not limited to the "Survival Manual for Communications
Companies in the Westin Building, the present version of which has been
provided to Tenant and is attached hereto as Exhibit "D" and made a part
hereof. Tenant acknowledges the Survival Manual may change from time to
time and Tenant agrees to abide by the most current version thereof. If
Tenant violates any such regulation and fails to cure the same immediately
upon Owner's demand (or within any reasonable cure period established by
Owner in its sole discretion) Owner may withdraw Tenant's privilege to use
the Meet-Me Room. Tenant understands and agrees that Meet-Me Room access is
a privilege and not a right, and that Owner's right to exclude Tenant from
Meet-Me Room access as stated herein is absolute and not subject to RCW
59.12 et. seq.
Owner shall not be liable for damages, nor shall the rental herein reserved
be abated, for Owner's failure to provide Meet-Me Room access, functions
and services, when such failure or delay is caused by an event of "Force
Majeur" (as defined in Article 30), or by the making of necessary repairs
to the Premises or Building (provided that Owner has used reasonable
efforts not to interfere with or interrupt the conduct of Tenant's business
at the Premises), nor shall the temporary failure to furnish any of such
services due to such events be construed as an eviction of Tenant or
relieve Tenant from the duty of observing and performing any of the
provisions of this Lease.
In the event Tenant requests and is allowed Meet-Me Room privileges, Tenant
shall pay a one-time usage fee of Five Hundred Dollars ($500.00) no later
than Thirty (30) days following the date Tenant commences its use of the
Meet-Me-Room. For each DSX panel or DS3 module placed in the room, Tenant
shall pay a one-time fee of Three hundred sixty eight dollars ($368.00) per
DSX and/or one hundred eighty four dollars ($184.00) per DS3 module and a
recurring monthly charge of $50.00 per Panel installed within the room.
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Q. CABLING RIGHT OF WAY
Owner grants to Tenant, at no additional cost to Tenant, the right to
install cable from the Premises to the "Meet Me Room" on the 19th floor
(subject to Owner's authorization for Meet-Me-Room privileges as set forth
in Article 1(p) above). Additionally, Tenant may install cable, subject to
reasonable monthly recurring charges as established by Owner from time to
time for all other cable run by other tenants throughout the Building,
between: (i) each Premises; (ii) each Premises and any other space occupied
by Tenant in the Westin Building; and (iii) each Premises and any other
space occupied by Tenant in the Westin Building and the Building roof. Such
additional cable installation shall be at Tenant's expense and subject to
the provisions set forth in the "Survival Manual for Communication
Companies in The Westin Building". Such installation must be coordinated
with and approved by The Westin Building Engineer, which approval shall not
be unreasonably withheld, conditioned or delayed. Notwithstanding the
foregoing, Tenant shall have the right, at no additional cost to Tenant, to
run a cable bundle approximately one (1) inch in diameter: (i) between the
9th floor Premises and the premises subleased by Tenant from North WestNet
on the 9th floor; and (ii) between the 9th floor Premises or such sublet
premises and the 34th floor Premises.
R. HVAC (HEATING, VENTILATING, AND AIR CONDITIONING)
Owner grants Tenant the right to install, at Tenant's sole cost, its own
HVAC equipment in either or both Premises. This equipment shall be
considered Tenant's trade fixture. The Owner shall provide Tenant with a
HVAC configuration that provides at least the same degree and extent of
redundancy currently (as of the commencement date of the Lease term)
provided Tenant for its Network Operating Center within the North WestNet
space on the 9th floor; as depicted in the Exhibit E attached hereto (the
"Redundant Configuration"). Tenant's HVAC equipment shall be connected in a
manner approved by the Building Engineer, which approval shall not be
unreasonably withheld, conditioned or delayed. Owner represents and
warrants to Tenant that at all times during the Lease Term, or any
extension thereof pursuant to Article 1(u), Owner shall have available for
Tenant's heating and ventilation needs at the Premises no less than thirty
(30) tons of Redundant HVAC cooling capacity. Tenant shall be entitled to
connect to such capacity in stages from time to time during the Lease Term,
but shall not be required to use the entire thirty (30) tons of cooling
capacity.
Owner shall not be liable for damages, nor shall the rental herein reserved
be abated, for Owner's failure to furnish or delay in furnishing HVAC
cooling, when such failure or delay is caused by an event of Force Majeur
(as defined in Article 30) or by the making of necessary repairs to the
Premises or Building (provided that Owner has used reasonable efforts not
to interfere with or interrupt the conduct of Tenant's business at the
Premises), nor shall the temporary failure to furnish any of such services
due to such events be construed as an eviction of Tenant or relieve Tenant
from the duty of observing and performing any of the provisions of this
Lease.
Tenant shall pay to Owner within ten (10) days of completion of any HVAC
connection a sum equal to Five hundred dollars ($500.00) per new ton of
connected load. In addition, Tenant shall pay within ten (10) days of
invoice a quarterly fee for Tenant's pro rata, per ton share of the costs
charged to all users of the cooling tower for Owner's costs and expenses of
operating and maintaining the cooling tower, including, but not limited to,
chemical treatment, electrical usage and water consumption, and excluding
replacement of cooling towers.
S. ESSENTIAL POWER
Tenant shall have the right to the following amounts of "Essential Power"
(defined below):
(i) 9th Floor: 160 amperes of 480 volt Essential Power ("Minimum
9th Fl. Capacity") which shall be made available by Owner to
Tenant pursuant to the following schedule:
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MINIMUM AMT. OF ESSENTIAL
PHASE DATE POWER AVAILABLE TO TENANT
Lease March 1, 1998 None
Commencement
Phase 1 By March 15, 1998 60 amps of 480 volt
Phase 2 By June 15, 1998 120 amps of 480 volt
Phase 3 By October 1, 1998 160 amps of 480 volt
(ii) 34th Floor: Six (6) amperes of 480 or equivalent 208 volt, as
determined by Tenant, Essential Power AC circuits ("Minimum 34th Fl.
Capacity"). Owner shall make the Minimum 34th Fl. Capacity available to
Tenant within thirty (30) days of the Lease commencement date.
Owner shall configure the delivery of power to the Premises as shown in
Exhibit F attached hereto (as configured, "Essential Power").
At all times during the Term of this Lease (including any extension thereof
pursuant to Article 1(u)), Owner shall maintain the Essential Power system
to ensure that the then-current minimum level of Essential Power is
delivered by Owner to Tenant through The Westin Building electrical system.
Owner shall not be liable for damages, nor shall the rental herein reserved
be abated, for Owner's failure to furnish or delay in furnishing Essential
Power, when such failure or delay is caused by an event of Force Majeur (as
defined in Article 30) or by the making of necessary repairs to the
Premises or Building (provided that Owner has used reasonable efforts not
to interfere with or interrupt the conduct of Tenant's business at the
Premises), nor shall the temporary failure to furnish any of such services
due to such events be construed as an eviction of Tenant or relieve Tenant
from the Duty of observing and performing any of the provisions of this
Lease.
Tenant shall pay to Owner a connection charge of Five Hundred Dollars
($500.00) per ampere of minimum Essential Power based on the following
schedule. Payment for the first sixty-six amps totaling thirty-three
thousand dollars ($33,000) shall be made on or before March 15, 1998;
payment for the next sixty amps totaling thirty thousand dollars ($30,000)
shall be made on or before June 15, 1998; and payment for the last forty
amps totaling twenty thousand dollars ($20,000) shall be made on or before
October 31, 1998. Tenant shall pay all costs associated with wiring the
Essential Power system from the riser to Tenant's Premises, as well as its
pro rata share of any annual maintenance costs assessed on a per available
amp basis. By way of illustration, If Tenant has a minimum of 160 amps of
available Essential Power, and all Tenants of the Building have a total
minimum of 1000 amps of available Essential Power, Tenant's pro rata share
of any maintenance costs associated with the Building's Essential Power
systems shall equal 160/1000 of the total maintenance costs.
T. CLASS "A" ENTRY
The Premises shall have an entryway that is compatible with the Class "A"
image of the building. Tenant and Owner shall cooperate in developing an
entryway plan that satisfies Owner's Class "A" image requirement and
Tenant's need for privacy and control. The provisions of this Article 1(t)
shall not apply to the 9th Floor Premises.
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U. OPTION TO EXTEND:
Provided that Tenant is not in default beyond the applicable cure periods
as provided in Article 14 at the time of its exercise of the Option to
Extend, Tenant shall have the Option to Extend the term of this Lease
beyond the original Lease Term for one (1) additional period of three (3)
years (the "Extended Term"). Tenant's Option to Extend may be exercised
only by written notice to Owner not earlier than May 31, 2000, and not
later than June 30, 2000. The same terms and conditions applicable to the
original Lease Term shall apply during the Extended Term, except that the
Monthly Base Rent shall be increased to an amount equal to the product of
(i) the Total Agreed Floor Area of the Premises multiplied by (ii) the
monthly rent per square foot for renewal leases in the Building for
Premises of substantially equivalent use, size and location as of the date
of Tenant's exercise of its Option to Extend. In no event shall the Monthly
Base Rent during the Extended Term be less than the Monthly Base Rent as if
the date on which the Option to Extend is exercised.
Immediately upon Tenant's exercise of its Option to Extend, Tenant and
Owner shall enter into good faith negotiations to establish the Monthly
Base Rent for the Extended Term in accordance with the parameters set forth
above. If Tenant and Owner cannot agree on Monthly Base Rent for the
Extended Term within forty-five (45) days of the date Tenant exercises its
Option to Extend, then Tenant shall be deemed to have rescinded its
exercise of its Option to Extend, and this Article 1(u) shall be of no
further force and effect.
V. RIGHT OF OFFER OF NEIGHBORING SPACES:
In the event any space on the 10th, 33rd or 34th floors, or any space on
the 9th floor (subject only to North WestNet's existing right of first
refusal for 9th floor space), or any space on the 8th floor (subject only
to InterNap's right of first refusal for 8th floor space) (the "Adjoining
Spaces") becomes available for lease, and provided that (i) Tenant is not
then in default beyond the applicable cure periods as provided in Article
14 under this Lease; (ii) Tenant has within the six (6) months prior to the
applicable space becoming vacant, notified Owner in writing of an interest
in leasing any Adjoining Space; and (iii) that no less than one (1) year
remains on the Lease Term of this Lease, including the Extended Term
(provided that Tenant continues to have the right to extend the Lease
Term), then Owner shall offer to lease the available Adjoining Space to
Tenant in writing, which offer shall remain open for an exclusive period of
ten (10) days. Owner's written offer shall include the Monthly Base Rent to
be required for the available Adjoining Space (which shall be no more than
the rate then established by Owner, in its reasonable judgment, for renewal
leases in the Building for premises of substantially equivalent use, size
and location as the premises being offered), and scheduled rental increases
(which shall be at a frequency and amount established by Owner, in its
reasonable judgement, for other renewal leases in the Building). Tenant
shall have ten (10) days from its receipt of Owner's written offer to
execute a lease for the available Adjoining Space. The term of any lease
for any Adjoining Space shall terminate on the same date that this Lease
terminates.
If Tenant does not execute a lease for the available Adjoining Space within
ten (10) days from its receipt of Owner's written offer, then its right of
offer shall lapse and be of no further force and effect and Owner shall
have the right to lease the available Adjoining Space, or any portion
thereof, to any third party on any terms and conditions it sees fit,
whether or not such terms and conditions are more or less favorable than
those offered to Tenant.
Tenant's rights hereunder shall be recurring rights, and shall apply each
time any Adjoining Space becomes available for lease.
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W. ANTENNA PREMISES:
Tenant may, subject to Owner's approval and the payment of mutually agreed
rent, install antennae or other equipment on the roof of The Westin
Building. Tenant shall submit plans and specifications for the roof
installation to the Owner. Owner, in its absolute discretion, may approve
or disapprove of the proposed installation. Details of Tenant's equipment
installation shall be subject to the approval of Owner's architect, and
shall not adversely affect the appearance of the building, nor the water
tightness of the roof, nor otherwise, in the Owner's architect's reasonable
opinion, have adverse effects on the Building. All costs associated with
the installation and maintenance of equipment installed by Tenant pursuant
to this Article shall be paid by Tenant, including, without limitation,
cost of cleanup required to keep the roof clear and safe and periodic pro-
rata maintenance assessments for upkeep and painting of the rooftop antenna
facilities.
It is understood and agreed that Tenant's ability to use the rooftop
portion of the Building is contingent upon its obtaining all the
certificates, permits, and other approvals that may be required by federal,
state or local authorities. Owner shall cooperate with Tenant in its
efforts to obtain such approvals and shall take no action that would
adversely affect the status of the Premises, with respect to the proposed
use thereof by Tenant.
X. QUIET ENJOYMENT:
Tenant, upon material compliance with its obligations under the Lease,
shall have quiet enjoyment of the Premises during the term of the Lease.
Y. MEMO OF LEASE:
At the request of Tenant, Owner shall execute and record a short form of
this Lease setting forth the names of the parties, a description of the
Premises, the commencement and expiration dates of the Lease, and a
description of Tenant's extension and expansion options. Tenant shall pay
for all costs and expenses, including reasonable attorneys' fees, incurred
by Owner for the preparation, review and recordation of the memorandum of
lease.
Z. BROKERS:
Each party represents to the other that there are no individuals or
entities entitled to any brokerage commissions or finder's fees in
connection with this transaction, and that if any claims for brokerage
commissions or finder's fees or like payments arise out of or in connection
with this transaction, all such claims shall be defended by and, if
sustained, paid by the party whose alleged actions or commitments form the
basis of such claim.
AA. ENTIRE AGREEMENT:
This Lease together with the Exhibits hereto contains all the covenants and
agreements between Owner and Tenant relating in any way to the use and
occupancy of the Premises, and all other matters set forth in this Lease.
No prior agreements or understandings, whether oral or written, pertaining
to this Lease shall be valid or of any force or effect; and the covenants
and agreements of this Lease may not be altered, modified or added to
except in writing signed by both parties.
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2. EXHIBITS
The following Drawings and Special Provisions are attached hereto as
exhibits and made a part of this Lease:
Exhibit A - Floor plans of the Westin Building 34th and 9th floors,
herein called "Building."
Exhibit B - Site plan showing relation and location of Building and
Westin Building Garage.
Exhibit C - Details of both Premises Approved by Owner and Tenant.
Exhibit D - Survival Manual for Communication Companies in the Westin
Building
Exhibit E - Redundant HVAC
Exhibit F - Essential Power to the Ninth (9th) Floor and Thirty-Fourth
(34th) Premises
3. PREMISES
Owner hereby leases to Tenant, and Tenant hereby leases from Owner, upon
the terms and conditions herein set forth, those certain Premises described
in Article 1(a) and (b), and shown outlined in red on the standard floor
plan attached hereto as "Exhibit A", in that certain Building known as the
Westin Building situated in the City of Seattle, County of King, State of
Washington, at Sixth Avenue and Virginia Street, and located on the
following real property:
Lots 11 and 12 (less portion for street), Block 15 of Addition to town
of Seattle, as laid off by Heirs of Xxxxx X. Xxxx, deceased (commonly
known as Heirs of Xxxxx X. Xxxx'x Addition to the City of Seattle), as
per plat recorded in Volume I of plats, page 103, records of King
County, Washington.
4 RENT
Tenant covenants and agrees to pay to Owner the Monthly Base Rent as set
forth in Article 1(d) to be adjusted as provided elsewhere in this Lease,
in United States currency in advance on or before the first day of each
calendar month during the Lease Term (or the Extended Term, if applicable),
at the office of Owner in Building or at such other place as Owner may from
time to time designate in writing. It is agreed that since collection of
any amount past due imposes an administrative cost on Owner, in addition to
all other sums that may be charged by Owner hereunder, Tenant shall pay to
Owner a sum equal to Five Cents ($0.05) for every Dollar not paid within 10
days of the date due.
5 USE
The Premises may be used only for the purposes set forth in Article 1(g)
and for no other purpose or purposes without the written consent of Owner.
No use shall be made of Premises, nor act done in or about Premises, which
is unlawful, or which may increase the existing rate of insurance upon the
Building. Owner warrants to Tenant that the permitted use for the Premises
set forth in Article 1(g) will not increase the rate of insurance on the
Building. Tenant shall not commit or allow to be committed any waste upon
Premises, or any public or private nuisance or other act or thing which
disturbs the quiet enjoyment of any other tenant in Building, nor shall
Tenant, without the written consent of Owner, use any apparatus, machinery
or device in or about Premises that shall cause any substantial noise or
vibration. If any of Tenant's office machines and equipment should disturb
the quiet enjoyment of any other tenant in Building, then Tenant shall
provide adequate insulation or take such other action as may be necessary
to eliminate the disturbance. Tenant shall observe such reasonable rules
and regulations as may be adopted in writing by Owner and provided to
Tenant for the safety, care and cleanliness of the Premises or Building and
the preservation of good order therein.
6 POSSESSION
In the event of Owner's inability to deliver possession of the Premises at
the commencement of the Lease Term, Owner shall not be liable for any
damage caused thereby, except as otherwise expressly stated herein, nor
shall this Lease become void or voidable, nor shall the Lease Term be
extended, but in such event, no rental shall be payable by Tenant to Owner
for the portion of the Lease Term prior to actual delivery of possession of
the Premises to Tenant.
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7 SERVICES PROVIDED BY OWNER
Owner shall, at its sole cost and expense, maintain the Premises and the
public and common areas of the Building, such as lobbies, stairs,
landscaping, corridors and restrooms, together with the Westin Building
Garage, and all structural portions of the Building, including, but not
limited to, roof and foundation as well as fire suppression systems,
heating, ventilation, air conditioning, electrical and mechanical systems,
in a first class order and condition, except for damage occasioned by the
act of Tenant. Owner's responsibility to maintain the fire suppression
systems, heating and ventilation, electrical and mechanical systems on the
9th floor Premises ends at the demarcation point where such systems enter
the 9th floor Premises. Tenant agrees to maintain the fire suppression
systems, heating and ventilation, electrical and mechanical systems within
the 9th floor Premises from the demarcation point.
Owner, at Owner's sole cost, shall furnish the 34th floor Premises from
7:00 a.m. to 6:00 p.m. Monday through Friday (exclusive of holidays),
hereinafter called the "Standard Work Week," with electricity for lighting
and the operating of office machines, heat and air conditioning, and hot
and cold running water, as may be reasonably required for the occupation of
the Premises. At Tenant's cost, Owner shall install a heating, ventilation
and air conditioning override to the 34th floor Premises to provide after
hours heating, ventilation and air conditioning to such Premises. Owner may
charge Tenant for such override services at a rate of $20 per hour, as
adjusted from time to time, payable by Tenant on a monthly basis as
additional rent.
Owner, at Tenant's cost, shall furnish the 9th floor Premises with
electricity for lighting and the operating of office machines, heat and air
conditioning as may be reasonably required for the occupation of the 9th
floor Premises on a 24 hour a day, seven day a week basis. Elevator service
shall be provided to both Premises on a 24 hour a day, seven day a week
basis.
Owner, at its sole cost, shall provide lighting replacement, toilet room
supplies, window washing with reasonable frequency, and daily janitorial
service to be provided to the 34th Premises only unless otherwise agreed
upon by the parties, during the times and in the manner that such services
are customarily furnished in general office buildings in the area.
Owner shall not be liable for damages, nor shall the rental herein reserved
be abated, for failure to furnish or delay in furnishing any of the
foregoing services, when such failure or delay is caused by an event of
Force Majeur (as defined in Article 30) or by the making of necessary
repairs to the Premises or Building (provided that Owner has used
reasonable efforts not to interfere with or interrupt the conduct of
Tenant's business at the Premises), nor shall the temporary failure to
furnish any of such services due to such events be construed as an eviction
of Tenant or relieve Tenant from the duty of observing and performing any
of the provisions of this Lease.
Tenant acknowledges that the 24-hour nature of its business exceeds the
Standard Work Week described above. Owner may at its option and at Tenant's
cost install a meter in the electrical system supplying Tenant, measure
usage and xxxx Tenant monthly at the same rate, including demand charges,
billed by Seattle City Light, plus a monthly billing fee of $10.00.
Additionally, Tenant shall pay for all other additional expenses, if any,
incurred by Owner arising out of Tenant's use of the Premises in excess of
the Standard Work Week.
10
8 REPAIRS AND ALTERATIONS
Tenant accepts the Premises "as is," and agrees that the 34th floor
Premises are in a good and tenantable condition. Tenant shall take proper
care of the Premises.
Tenant shall not remove existing improvements, or alter or improve the
Premises in any way without the written approval and consent of Owner,
which shall not be unreasonably withheld, conditioned or delayed. Owner
acknowledges that Tenant desires to make substantial improvements and
alterations to the Premises, in particular to the 9th floor Premises. Any
and all such improvements shall be at Tenant's sole expense, and subject to
Owner's prior approval, which shall not be unreasonably withheld,
conditioned or delayed, and Owner's supervision. Tenant shall obtain, at
Tenant's sole expense, detailed plans and specifications for any
alterations and improvements to the Premises and submit the same to Owner
for approval, which approval shall be not be unreasonably withheld,
conditioned or delayed. Tenant shall have the right to select the
contractor for the performance of any approved alterations and
improvements, subject to Owner's approval which shall not be unreasonably
withheld, conditioned or delayed. In the event Tenant elects to hire Owner
to make the approved alterations and improvements, Tenant shall pay Owner
for such work within ten (10) days of invoice. In the event Tenant elects
to hire a contractor other than Owner to make the approved alterations and
improvements, Owner shall be paid a supervision fee equal to four percent
(4%) of the contract price of such approved alterations and improvements,
but no less than Five Hundred Dollars ($500.00), provided however that the
foregoing shall not be interpreted to apply to any purchase, installation
or configuration of trade fixtures within the Premises.
Tenant shall not make changes to locks on doors or add, disturb, or in any
way change any plumbing or wiring without first obtaining the written
consent of Owner, which consent shall not be unreasonably withheld,
conditioned or delayed; provided nothing contained in the foregoing is
intended to apply to any wiring work done by Tenant to or between its trade
fixtures. All damage or injury to the Premises caused by Tenant, or by any
persons who may be in or upon Premises with the consent of Tenant, shall be
paid for by Tenant (or, if applicable, Tenant's insurer). Subject to the
provisions of Article 12, Tenant shall pay for all damage or injury to the
Building or any other tenant of the Building caused by Tenant's negligence
or misuse of the Premises, the appurtenances thereto, or the Meet-Me Room.
All repairs to the Premises necessary to maintain Premises in a good and
tenantable condition shall be done by or under the direction and
supervision of Owner, and at Owner's expense, except as otherwise
specifically provided herein. Tenant shall pay for the repair or
replacement of Special Improvements as provided in Article 23 and the
repair or replacement of doors or windows of the Premises which are cracked
or broken by Tenant, its employees, agents, or invitees. Tenant shall not
put any curtains, draperies or other hangings on or beside the windows in
the Premises without first obtaining Owner's consent, which will not be
unreasonably withheld, conditioned or delayed. Owner may make any
alterations or improvements to the Premises and or the Building which Owner
may deem necessary for the preservation, safety or improvement of the
Premises or Building; provided that Owner shall use reasonable efforts not
to interfere with or interrupt the conduct of Tenant's business at the
Premises. All alterations, additions and improvements to the Premises,
except trade fixtures installed by Tenant which are removable without
damage to the Premises or Building, shall become the property of Owner.
Tenant shall, at the termination of this Lease by the expiration of time or
otherwise, surrender and deliver up Premises to Owner in as good condition
as when received by Tenant from Owner, normal wear and tear and damage by
fire or other casualty excepted.
Should Owner be required to make changes, alterations, improvements or
additions to the Building or the Westin Building Garage at any time during
the term of this Lease as a result of any law, rule, code or regulation
which becomes effective after the Commencement Date of this Lease, then
Tenant shall pay on demand by Owner, as additional rent, a monthly charge
equal to the total agreed floor area of the Premises as stated in Article
1(b) divided by 350,000 times 1 and 1/3 percent of the cost of the change,
alteration, improvement or addition. Such additional rent shall commence
upon substantial completion of each such change, alteration, improvement or
addition and shall continue through the end of the Lease Term. Tenant shall
not be responsible for any portion of the cost to correct any latent
construction defects in all or any portion of the Building, or any
condition that is, as of the date of this Lease, not in compliance with
existing laws, codes, rules or regulations.
11
9 ENTRY AND INSPECTION
Provided Owner and its agents comply with Tenant's reasonable written
security rules (as modified from time to time and approved by Owner, which
approval shall not be unreasonably withheld, conditioned or delayed) (the
"Security Rules") regarding access to the Premises, Tenant will permit
Owner and its agents to enter into and upon the Premises at all reasonable
times for the purpose of inspecting the same or for the purpose of cleaning
(Suite 3425 only), repairing, altering or improving the Premises or
Building and when reasonably necessary may close entrances, doors,
corridors, elevators or other facilities without liability to Tenant by
reason of such closure and without such action by Owner being construed as
a constructive eviction of Tenant or relieving the Tenant from the duty of
observing and performing any of the provisions of this Lease.
If Tenant is not personally present to open and permit an entry into the
Premises at any time when for any reason an entry therein shall be urgently
necessary by reason of fire or other emergency, Owner or Owner's agents may
forcible enter the same without rendering Owner or such agents liable
therefor (if during such entry Owner or Owner's agents shall accord
reasonable care to Tenant's property) and without in any manner affecting
the obligations and covenants of this Lease. During the time period within
180 days prior to the expiration of the Lease Term, or if applicable, the
Extended Term, Owner shall have the right to enter the Premises pursuant to
the applicable Security Rules for the purpose of showing the Premises to
prospective tenants. Owner agrees that an escort designated by Tenant may
accompany Owner and any prospective tenant at all times during any said
showing of the Premises and that Owner and such prospective tenant must
comply with the Security Rules in connection with such access to the
Premises.
Owner acknowledges that the written Security Rules which are dated February
5, 1998 and have been provided to Owner are acceptable.
For purposes of this Article 9, Owner shall use reasonable efforts not to
interfere with or interrupt the conduct of Tenant's business at the
Premises.
10 DAMAGE OR DESTRUCTION
If the Premises or Building are damaged by fire, wind, or other such
casualty, the damage shall be repaired by and at the expense of Owner,
provided such repairs (to restore Premises to usable condition) can be made
within sixty (60) days after the occurrence of such damage without the
payment of overtime or other premiums, and until such repairs are
completed, the rent shall be abated in proportion to the part of Premises
which are unusable by Tenant in the conduct of its business.
Notwithstanding anything in this Article 10 to the contrary, there shall be
no abatement of rent by reason of any portion of the Premises being
unusable for a period equal to one day or less.
If such repairs cannot be made within sixty (60) days, Owner may, at its
option, make them within a reasonable time, and in such event this Lease
shall continue in effect and the rent shall be abated in the manner
provided above. Owner's election to make repairs must be evidenced by
written notice to Tenant within thirty (30) days after the occurrence of
the damage.
If such repairs cannot be made within sixty (60) days and Owner does not
elect to make such repairs, then either party may, by written notice to the
other, terminate this Lease. A total destruction of the Building shall
automatically terminate this Lease.
11 ADVERTISING
Tenant shall not inscribe any inscription, post, place, or in any manner
display any sign, notice, picture, placard or poster, or any advertising
matter whatsoever, anywhere in or about Premises or Building at places
visible (either directly or indirectly as an outline or shadow on a glass
pane) from any where outside Premises without first obtaining Owner's
written consent thereto.
12
12 INDEMNITY, LOSS AND WAIVER OF SUBROGATION
Tenant shall defend and indemnify Owner and hold it harmless from and
against any and all liability, damages, costs, or expenses, including
attorney's fees, arising from any act, omission or negligence of Tenant or
the officers, contractors, licensees, agents, servants, employees, guests,
invitees, or visitors of Tenant in or about Building, or arising from any
accident, injury, or damage, howsoever and by whomsoever caused, to any
person or property, occurring in or about the Premises, provided that the
foregoing provision shall not be construed to make Tenant or any of its
successors, assigns, officer, directors, parent company or affiliates
responsible for loss, damage, liability, or expense resulting from damage
to property of and injuries to third parties (including Tenant's employees)
caused by the act, omission or negligence of Owner or of any officer,
contractor, licensee, agent, servant, or employee of Owner. Owner shall not
be responsible for providing security and Tenant hereby releases Owner from
any claim for damage or loss of property that may arise as a result of
vandalism or theft in Building or Westin Building Garage. Owner and Tenant
each release the other from responsibility for, and waive their entire
claim of recovery for (i) any loss or damage to the real or personal
property of either located anywhere in Building and Westin Building Garage,
arising out of or incident to the occurrence of any of the perils which may
be covered by a fire and lightning insurance policy, with extended coverage
endorsement in common use in the Seattle locality or (ii) loss resulting
from business interruption at Premises or loss of rental income from
Building, arising out of or incident to the occurrence of any of the perils
that may be covered by a business interruption insurance policy and by the
loss of rental income insurance policy in common use in the Seattle
locality. To the extent that such risks under (i) and (ii) are in fact
covered by insurance, each party shall cause its insurance carriers to
consent to such release and waiver and to waive all rights of subrogation
against the other party.
Without limiting the foregoing, Tenant shall at all times indemnify Owner
against any and all liability and damage arising out of or connected with
the operation of Tenant's antenna equipment, to include any and all effects
of electromagnetic radiation. Tenant shall fully insure its antenna
installation against all of the perils named in this Article 12, including,
without limitation, such additional perils as vandalism, malicious
mischief, and wind damage.
13 LIENS AND INSOLVENCY
Tenant shall keep Premises and Building free from any liens or encumbrances
arising out of any work performed by Tenant, materials furnished by Tenant,
or obligations incurred by Tenant. Owner may terminate this Lease by giving
Tenant notice of its election to do so, if: (i) Tenant files a voluntary
petition in bankruptcy, or for reorganization under the bankruptcy laws, or
is adjudged a bankrupt by a court of competent jurisdiction, and such
judgment or stay is not dismissed or relieved within sixty (60) days; (ii)
Tenant makes an assignment for the benefit of creditors, or a receiver is
appointed for Tenant's business, and such receiver is not dismissed within
sixty (60) days; or (iii) any proceeding is instituted by or against Tenant
under any State or Federal insolvency or bankruptcy act and any such
proceeding, if involuntary, is not stayed or dismissed within sixty (60)
days. No interest in this Lease or estate hereby created in favor of Tenant
shall pass by operation of law under any such bankruptcy or insolvency act
to any person whomsoever without the prior express written consent of
Owner. Any purported transfer in violation of this Article shall
constitute a default by Tenant.
13
14 TENANT'S DEFAULT AND OWNER'S RE-ENTRY
Except for an uncured default under the preceding paragraph for which
immediate right of termination is given to Owner, if Tenant fails: (i) to
make any payment due hereunder, including but not limited to the payment of
Monthly Base Rent (plus interest on any past due amounts at the maximum
legal rate from the date due) and such failure continues for ten (10) days
after receipt of written notice of such default; or (ii) to perform any
other covenant under this Lease within thirty (30) days after receipt of
written notice from Owner stating the nature of the default, then Owner may
re-enter and take possession of the Premises using all reasonable force to
do so; provided, however, that if the nature of such default other than for
non-payment of rent is such that the same cannot reasonably be cured within
such thirty-day period, Tenant shall not be deemed to be in default if
Tenant shall within such period commence such cure and thereafter
diligently prosecute the same to completion.
Notwithstanding such retaking of possession by Owner, Tenant's liability
for the rent provided herein shall not be extinguished for the balance of
the Lease Term, or, if applicable, the Extended Term. Upon such re-entry,
Owner may elect either (i) to terminate this Lease, in which event Tenant
shall immediately pay to Owner a sum equal to that by which the then cash
value of the total rent reserved under this Lease for the balance of the
Lease Term exceeds the reasonable rental value of the Premises for the
balance of the Lease Term plus reasonable costs incident to releasing the
Premises including, but not limited to remodeling expenses, attorney's fees
and real estate commissions; or (ii) without terminating this Lease, to
relet all or any part of the Premises as the agent of and for the account
of Tenant upon such terms and conditions as Owner may deem advisable, in
which event the rents received on such reletting shall be applied first to
the expenses of reletting and collection, including necessary renovation
and alteration of Premises, reasonable attorney's fees and real estate
commissions paid, and thereafter to payment of all sums due to or to become
due Owner hereunder, and if a sufficient sum shall not be thus realized to
pay such sums and other charges, Tenant shall pay Owner any deficiency
monthly, and Owner may bring an action therefor as such monthly deficiency
shall arise
In the event of any such retaking of possession of Premises by Owner as
herein provided, Tenant shall remove all personal property located thereon
and, upon failure to do so upon demand of Owner, Owner may, in addition to
any other remedies allowed by law, remove and store the same in any such
place selected by Owner, including but not limited to a public warehouse,
at the expense and risk of Tenant. If Tenant shall fail to pay any sums due
hereunder or the cost of storing any such property after it has been stored
for a period of thirty (30) days or more hereunder, Owner may sell any or
all of such property at public or private sale and shall apply the proceeds
of such sale first, to the cost of such sale; second, to the payment of the
charges for storage, if any; and third, to the payment of any other sums of
money which may be due from Tenant to Owner under the terms of this Lease,
and the balance, if any, to Tenant. If such property in Owner's reasonable
opinion has a resale value of $1,000 or less, Owner may donate the property
to charity or otherwise dispose of the property as Owner sees fit without
the necessity of a public or private sale.
Tenant hereby waives all claims for damages that may be caused by Owner's
lawfully re-entering and taking possession of Premises or lawfully removing
and storing or selling the property of Tenant as herein provided, and will
save Owner harmless from loss, costs, or damages occasioned thereby, and
such lawful re-entry shall not be considered or construed to be a forcible
entry.
15 SURRENDER OF POSSESSION
Upon expiration of the term of this Lease, whether by lapse of time or
otherwise, Tenant shall promptly and peacefully surrender Premises to Owner
broom clean and in good and tenantable condition, reasonable wear and tear
and damage by fire or other casualty excepted. Tenant shall completely
restore the antenna Premises to the condition existing at the time of
delivery of premises to Tenant, including without limitation, repair of all
holes, cuts, and other modifications which were made to permit
installation.
16 COSTS AND ATTORNEYS' FEES
If Tenant or Owner shall bring any action for any relief against the other,
declaratory or otherwise, arising out of this Lease, including any suit by
Owner for the recovery of rent or possession of Premises, the losing party
shall pay the successful party a reasonable sum for attorneys' fees in such
suit, including fees incurred in appeals and bankruptcy actions, and such
attorneys' fees shall be deemed to have accrued on the commencement of such
action.
14
17 NON-WAIVER
Waiver by either party of any breach of any term, covenant or condition
herein contained shall not be deemed to be a waiver of such term, covenant,
or condition, or of any subsequent breach of the same or any other term,
covenant or condition herein contained. The subsequent acceptance of rent
hereunder by Owner shall not be deemed to be a waiver of any preceding
breach by Tenant of any term, covenant, or condition of this Lease, other
than the failure of Tenant to pay the particular rental so accepted
regardless of Owner's knowledge of such preceding breach at the time of
acceptance of such rent.
18 ASSIGNMENT AND SUBLETTING
Tenant shall not assign this Lease or sublet Premises or any part thereof
without first obtaining Owner's written consent, which consent shall not be
unreasonably withheld, conditioned or delayed. No such assignment or
subletting shall relieve Tenant of Tenant's liability under the Lease,
except, if at the time of such assignment or subletting, Tenant establishes
to the reasonable satisfaction of Owner that such assignee or sublessee is
of satisfactory financial responsibility at least equal to that of Tenant
at the time Tenant executed the Lease. Consent to any such assignment or
subletting shall not operate as a waiver of the necessity for a consent to
any subsequent assignment, and the terms of such consent shall be binding
upon any person holding by, under or through Tenant. In no event shall a
sublessee of Tenant sublet or assign any interest in this Lease.
In the event of an assignment or subletting that requires Owner's time
and/or expense, Tenant shall compensate Owner for its out-of-pocket
expenses, including reasonable attorney's fees and costs.
If Tenant is a corporation, then any transfer of this Lease by merger,
consolidation or liquidation or any change in the ownership of, or power to
vote, the majority of its outstanding voting stock shall constitute an
assignment for the purposes of this article. Notwithstanding the foregoing,
without the consent of Owner: (i) Tenant may assign the Lease to an
affiliate, parent or subsidiary of Tenant as a result of a merger or
consolidation; (ii) Tenant may assign this Lease to the Xxxx Disney Company
or any of its affiliates; (iii) Tenant may sell the majority of its
outstanding voting stock by public offering.
19 SUCCESSORS
All of the covenants, agreements, terms and conditions contained in this
Lease shall apply to and be binding upon Owner and Tenant and their
respective heirs, executors, administrators, successors and assigns.
20 TAX ON RENTAL
If any governmental authority or unit under any present or future law
effective at any time during the term of this Lease shall in any manner
levy a tax on rentals payable under this Lease or on rentals accruing from
use of Premises under this Lease, or a tax in any form against Owner
because of or measured by income derived from the leasing or rental of
Premises, the amount of the next succeeding month's rent following payment
of such tax by Owner shall be increased by an amount equal to such tax paid
by Owner, and for Tenant's default in paying the rent thus revised, Owner
shall have the same remedies as upon failure to pay rent. Tenant shall not
be liable to pay any amount because of income tax of a general nature
applicable to Owner's various interests or sources of income. In the event
that it shall not be lawful for Tenant to pay such tax, the rental payable
to Owner under this Lease shall be revised to net Owner the same net rental
after imposition of any such tax as would have been payable to Owner prior
to the imposition of any such tax.
15
21 PRIORITY; ESTOPPEL
Subject to the provisions set forth below, this Lease shall automatically
be subordinate to any mortgage or deed of trust heretofore or hereafter
placed upon Building, to any and all advances made or to be made
thereunder, to the interest on the obligations secured thereby, and to all
renewals, replacements and extensions thereof; provided, however, that in
the event of foreclosure of any such mortgage or deed of trust or exercise
of the power of sale thereunder, Tenant shall attorn to the purchaser of
Building at such foreclosure or sale and recognize such purchaser as Owner
under this Lease if so requested by such purchaser. If any mortgagee or
beneficiary elects to have this Lease superior to its mortgage or deed of
trust and gives notice of its election to Tenant, then this Lease shall
thereupon become superior to the lien of such mortgage or deed of trust,
whether this Lease is dated or recorded before or after the mortgage or
deed of trust. Within fifteen days of presentation, and subject to the
provisions set forth below, Tenant shall execute, acknowledge, and deliver
to Owner any subordination or nondisturbance agreement or other instrument
that Owner may require to carry out the provisions of this Article.
Within fifteen (15) days after written request, either party shall furnish
to the other a statement certifying that this Lease is in full force and
effect and has not been modified (or if there have been modifications, that
the Lease is in full force and effect as modified and stating the
modifications); the commencement and expiration dates of the Lease and the
dates to which rent has been paid; that there are no defaults by either
party (or if there are such defaults, specifying the same); whether or not
there are then existing any defenses against the enforcement of or offsets
against any obligations of either party under this Lease (and if so
specifying the same).
22 CONDEMNATION
If the whole of Premises, or if such portion of either Premises or the
facilities in Building as may be required for the reasonable use of
Premises, shall be taken by virtue of any condemnation or eminent domain
proceeding, or by purchase in lieu thereof, or for public or quasipublic
use, directly or indirectly, this Lease shall automatically terminate as of
the date of such condemnation, or purchase in lieu of condemnation, or as
of the date possession is taken by the condemning authority, whichever is
earlier. Current rent shall be apportioned as of the date of such
termination. In case of a taking of a part of Premises or a portion of the
facilities in Building not required for the reasonable use of Premises,
then this Lease shall continue in full force and effect and the rental
shall be equitably reduced based on the proportion by which the rentable
area of Premises is reduced, such rent reduction to be effective on the
date of such partial taking. No award of any partial or entire taking shall
be apportioned, and Tenant hereby assigns to Owner any award which may be
made in such taking or condemnation together with any and all rights of
Tenant now or hereafter arising in or to the same or any part thereof,
provided, however, that nothing herein shall be deemed to give Owner any
interest in, or to require Tenant to assign to Owner, any award made to
Tenant for the taking of personal property or fixtures belonging to Tenant,
for the interruption of or damages to Tenant's business or for Tenant's
moving expenses.
23 SPECIAL IMPROVEMENTS
The term "Special Improvements" as used in this Lease refers to all
improvements to Premises, whether provided at the expense of Owner or
Tenant, other than acoustical ceilings, lighting fixtures, air conditioning
grilles, air ducts and temperature controls, draperies, corridor and
demising partitions, and concrete floor ready for pad and carpet. Tenant
shall reimburse Owner for Owner's reasonable expense of repairing or
replacing all Special Improvements to maintain such Special Improvements in
first-class condition; provided that Tenant shall be responsible for
maintaining all Special Improvements in the Premises
16
24 REAL PROPERTY TAXES
Owner shall pay all real property taxes and assessments that may be levied
against Building and the underlying land. If the amount of such real
property taxes and the then current installments of assessments (excluding
penalties and default interest) shall, in any calendar year during the
Lease Term, exceed the amount of real property taxes and the installments
of assessments payable for the calendar year 1998, then on the tax payment
dates in 1999 and on these dates of each succeeding year, Tenant shall
reimburse Owner for Tenant's proportionate share of such increase based
upon the ratio which area of Premises, as set forth in Article 1(b), bears
to 350,000 square feet. Owner shall submit to Tenant, if so requested by
Tenant, a copy of the real property tax statement for the year in which
payment is requested. If any assessment is levied against the Westin
Building during the term of the Lease and Owner is legally entitled to pay
any assessment in installments, then whether or not Owner has elected to
pay such assessment in installments, Tenant shall only be responsible to
pay hereunder, in any calendar year, its pro rata share of such installment
that would have come due in such calendar year in accordance with the
taxing authority's installment payment schedule.
The foregoing charges constitute additional rent that shall be deemed to
have accrued uniformly during the calendar year in which payment is due.
The final payment under the provision of this Article shall be prorated
based on reasonable projections of the increase through the termination of
this Lease and shall be due thirty days before such termination.
25 ANNUAL RENT ADJUSTMENT
To partially compensate for the effect of inflation, a portion of the
rental rate (viz. $ 7.50 per square foot per year) shall be adjusted
annually to reflect reductions, if any, in the purchasing power of the
dollar. Three separate generic elements of cost (namely: labor, materials
and energy) shall be deemed to be representative of all operational costs.
Indices for measuring changes in the dollar value for each of these cost
elements shall be: janitorial hourly labor rate, Consumer Price Index, and
the average cost per kilowatt-hour of electricity (including without
limitation all demand charges), respectively. Changes in each of these
shall adjust rent as provided below:
Generic Element's Cost
Element of Cost Index Share
--------------- ----- -----
1. Labor Janitorial rate $3.00
2. Material C.P.I. $3.00
3. Energy Average kWh cost $1.50
The base index for each of these indices shall be established from data for
the month of September of the year preceding the year in which this Lease
commences. Indices for each succeeding year shall be calculated annually
using September experience data, and the ratio that these annual indices
bear to their respective base index shall be reduced by 1.00 then
multiplied by the individual element's cost share as specified in Items 1,
2 and 3 above, and by the area of Premises as set forth in Article 1(b).
Each January 1, following the calendar year in which the Lease becomes
effective, the Monthly Rent in Article 1(d) shall be increased by one-
twelfth (1/12) of the sum of the amounts so determined. No changes in the
rent as specified above shall take place during the calendar year in which
the Lease Term commences.
The janitorial hourly labor rate shall be that as established by the
Building Services Employees International Union Local No. 6 for journeymen
including all applicable taxes and fringe benefits payable by employers.
The labor rate to be used as a base index for this Lease shall be $12.81.
The Consumer Price Index to be used shall be the Revised Consumer Price
Index for Urban Wage Earners and Clerical Workers, U.S. City Average, All-
Items Series (1982-1984 = 100), as published by the U.S. Department of
Labor, Bureau of Statistics. If this index is revised or changed (as, for
example, by taking the average index for different years as the base figure
of 100), the base index shall be adjusted accordingly. In the event such
index is discontinued, the index promulgated by the Department of Labor
most closely approximating the above referenced index shall be used as the
base index. The Consumer Price Index to be used as the base index for this
Lease shall be 158.3.
The cost per kilowatt-hour of electricity consumed in the Westin Building
(including seasonal factors and any tax or surcharge that may be imposed),
shall be determined by dividing the total amount billed to Account No.
171001453015 for the supply of electricity consumed primarily during the
month of September by the consumption shown in the billing column entitled
"Consumption kWh/kvarh." The cost to be used as a base index for this Lease
shall be $ .0401 per kilowatt-hour.
17
26 NOTICES
- All notices under this Lease shall be in writing and delivered : (a) by
facsimile; (b) by private courier service which provides a receipt; or (c)
by registered or certified mail, postage prepaid, return receipt requested.
All notices shall be deemed to have been given upon the earlier of: (i)
receipt, as evidenced by courier's receipt, certified mail receipt, or
written evidence of completion of facsimile transmission; or (ii) if
mailed, as provided above, the third day following due deposit in the
United States mail. Notices shall be addressed to the other party at the
addresses set forth in Article 1(h), or at such other addresses as either
party may give to the other by notice in writing in accordance with this
Article.
27 NAME OF BUILDING
Owner reserves the right in its sole discretion to change the name of
Building from that specified in Article 3.
28 CONSTRUCTION
The titles to articles of this Lease are not a part of this Lease and shall
have no effect upon the construction or interpretation of any part thereof.
This Lease shall be construed and governed by the law of the State of
Washington.
29 TIME OF ESSENCE
Time is of the essence of this Lease.
30 FORCE MAJEUR
Except for Tenant's obligations of payments due under this Lease, the
executory obligations of parties hereunder shall be excused to the extent,
but only to the extent, delayed or prevented by reason of Essential Power
supply failure, or by labor disturbances or labor disputes of any
character, by the inability to secure fuel, supplies, machinery, equipment
or labor after reasonable efforts to do so, restrictive governmental laws
or regulations, riots, insurrection, war or any other causes beyond the
reasonable control of the affected party hereto and which such party could
not by reasonable diligence have avoided ("Force Majeurs"). The party
directly affected by a Force Majeur shall use all reasonable efforts to
minimize the effects of the same.
IN WITNESS WHEREOF, Owner and Tenant have signed this Lease on the dates noted
below.
OWNER: TENANT:
----- ------
SIXTH & VIRGINIA PROPERTIES, STARWAVE CORPORATION
A Washington General Partnership A Washington Corporation
By Xxxxx Properties, Inc., a Partner
By /s/ A.M. Xxxxx By /s/ Xxxxxxx X. Xxxxxxxx
A.M. Xxxxx
Its President Its President
--------- ----------
Date 2/27/98 Date 2/24/98
------- -------
XXXXX COMPANY, a Partner
By Retail Realty, Inc.
By /s/ A.M. Xxxxx
A.M. Xxxxx
Its President
---------
Date 2/27/98
-------
18
GUARANTEE N/A
For and in consideration of execution of this Lease, _______________________
guarantees the performance of all obligations of______________________________,
as said obligations exist under all terms and conditions of this Lease and any
modifications thereto.
State of Washington
County of King
I certify that I know or have satisfactory evidence that A.M.Xxxxx is the person
who appeared before me and said person acknowledged that he signed this
instrument, on oath stated that he was authorized to execute the instrument and
acknowledged it as the President of XXXXX
PROPERTIES, INC., a partner of SIXTH & VIRGINIA PROPERTIES, a Washington general
partnership, to be the free and voluntary act of such party for the uses and
purposes mentioned in the instrument.
Dated 2/27/98
[NOTARY PUBLIC SEAL]
/s/ Xxxxxxxx X. Xxxxxxxx
Print Name: XXXXXXXX X. XXXXXXXX
NOTARY PUBLIC in and for the State of
Washington, residing at ISSAQUAH
My commission expires: 0-0-00
Xxxxx xx Xxxxxxxxxx
Xxxxxx of King
I certify that I know or have satisfactory evidence that A.M. Xxxxx is the
person who appeared before me and said person acknowledged that he signed this
instrument, on oath stated that he was authorized to execute the instrument and
acknowledged it as the President of RETAIL REALTY, INC., a partner of XXXXX
COMPANY, a partnership, for and on behalf of XXXXX COMPANY, which in turn is a
partner of SIXTH & VIRGINIA PROPERTIES, a Washington general partnership, to be
the free and voluntary act of such party for the uses and purposes mentioned in
the instrument.
Dated 2/27/98
[NOTARY PUBLIC SEAL]
/s/ Signature Illegible
Print Name: XXXXXXXX X. XXXXXXXX
NOTARY PUBLIC in and for the State of
Washington, residing at ISSAQUAH
My commission expires: 2-7-99
19
[FLOOR PLAN OMITTED]
EXHIBIT "A"
AS-BUILT FLOOR PLAN
-------------------
SCALE: 1/8" = 1' - 0"
[FLOOR PLAN OMITTED]
EXHIBIT "A"
AS BUILT FLOOR PLAN
SCALE: 1/8" = 1' - 0"
[SITE PLAN OMITTED]
EXHIBIT B
Site Plan
[CHART OMITTED]
[EXHIBIT "C"]
[CHART OMITTED]
EXHIBIT "C"
