Exhibit 10-16
FIFTH AMENDMENT TO LEASE
THIS FIFTH AMENDMENT TO LEASE is made this 5th day of July 1999,
between First Avenue West Building L.L.C., a Washington Limited Liability
Company ("Landlord" herein) and F5 Networks, Inc., ("Tenant" herein) for the
premises located in the city of Seattle, County of King, State of Washington,
commonly known as Xxxxx 000, Xxxxx Xxxx Xxxxxxxx, 000 Xxxxx Xxxxxx Xxxx.
RECITALS
A. Landlord and Tenant are parties to that certain lease dated October
9th, 1997, the First Amendment to Lease dated July 23rd, 1998, the Second
Amendment to Lease dated September 30, 1998, the Third Amendment to Lease
dated January 6, 1999, and the Fourth Amendment to Lease dated July 2, 1999
(the "Lease" herein). The Lease is made a part hereof as though set forth in
full herein.
B. Landlord and Tenant hereby express their mutual desire and intend to
amend by this writing those terms, covenants and conditions contained in "3.
RENT", "10. ASSIGNMENT AND SUBLETTING" and "Premises Rentable Area, tenant
proportionate share and security deposit" as shown on Lease Reference Page.
NOW, THEREFORE, as parties hereto, Landlord and Tenant Agree as follows:
AMENDMENTS:
1. Paragraph "3. RENT" shall as of August 15, 1999 be amended to hereinafter
additionally provide as follows:
PERIOD TERM RATE/RSF ANNUAL RENT MONTHLY RENT
------ ---- -------- ----------- ------------
Year 1 (08/15/99 through 02/29/00) $18.63 $501,504.00 $41,792.00
Year 2 (03/01/00 through 02/28/01) $19.79 $532,691.04 $44,390.92
Year 3 (03/01/01 through 02/28/02) $22.34 $601,417.08 $50,118.09
Year 4 (03/01/02 through 02/29/03) $23.34 $628,339.92 $52,361.66
Year 5 (03/01/03 through 02/28/04) $24.34 $655,263.00 $54,605.25
Year 6 (03/01/04 through 02/28/05) $25.00 $146,750.04 $12,229.17
Year 7 (03/01/05 through 08/14/05) $26.00 $152,619.96 $12,718.33
2. "10. ASSIGNMENT AND SUBLETTING", with respect to the 5,870 square feet
leased in the Fifth Amendment to Lease, Tenant shall not have the right
to assign or pledge this Lease or to sublet the whole or any part of
the Premises, whether voluntarily or by operation of law, or permit the
use or occupancy of the Premises by anyone other than Tenant, or assign
this Lease for security purposes, without the prior written consent of
Landlord, whose consent will not be unreasonably withheld or delayed,
and such restrictions shall be binding upon any assignee or subtenant
to which Landlord has consented. In the event Tenant desires to sublet
the Premises, or any portion thereof, or assign this Lease, Tenant
shall give written notice thereof to Landlord at least ten (10) days
prior to the proposed commencement date of such subletting or
assignment, which notice shall set for the name of the proposed
subtenant or assignee, the relevant terms of any sublease and copies of
financial reports and other relevant financial information of the
proposed subtenant or assignee.
1
The Tenant shall have the right to withdraw its request for consent to an
assignment to prevent premature termination of the Lease. Similarly, the
Tenant shall have the right to withdraw its request for approval of a
sublease to prevent the recapture of any of its Premises by the Landlord. The
Landlord's consent should not be required in connection with a corporate
merger, reorganization, public offering or other corporate restructuring. The
Landlord should have to exercise its right under this Article within ten (10)
days of the Tenant's notice. The Tenant's obligation to reimburse Landlord
for cost incurred in connection with review and approval of an assignment or
a sublease should be capped at $500.00.
In addition to Landlord's right to approve of any subtenant or assignee,
Landlord shall have the option, in its sole discretion, in the event of any
proposed subletting or assignment, to terminate this Lease, or in the case of
a proposed subletting of less than the entire Premises, to recapture the
portion of the Premises to sublet, as of the date the subletting or
assignment is to be effective. The option shall be exercised by Landlord's
giving Tenant written notice thereof within ten (10) days following
Landlord's receipt of Tenant's written notice as required above. If this
Lease shall be terminated with respect to the entire Premises, the Term shall
end on the date stated in Tenant's notice as the effective date of the
sublease or assignment as if that date had been originally fixed in this
Lease for the expiration of the Term. If Landlord recaptures only a portion
of the Premises, the rent during the unexpired Term shall xxxxx,
proportionately, based on the rent as of the date immediately prior to such
recapture. Tenant shall, at Tenant's own cost and expense, discharge in full
any outstanding commission obligation on the part of Tenant with respect to
this Lease, and any commissions which may be due and owing as a result of any
proposed assignment or subletting. Consent by Landlord to any assignment or
subletting shall not include consent to the assignment or transferring of any
lease renewal option rights or space option rights of the Premises, special
privileges or extra services granted to Tenant by this Lease, or addendum or
amendment thereto or letter of agreement (and such options, rights,
privileges or services shall terminate upon such assignment), unless Landlord
specifically grants in writing such options, rights, privileges or services
to assignee or subtenant. Any sale, assignment, mortgage, transfer of this
Lease or subletting which does not comply with the provisions of this Article
shall be void.
In the event that Tenant sells, sublets, assigns, or transfers this Lease and
at any time receives periodic rent and/or other consideration which exceeds
that which Tenant would at that time be obligated to pay to Landlord, Tenant
shall pay to Landlord 100% (one hundred percent) of the gross increase in
such rent as such rent is received by Tenant and 100% (one hundred percent)
of any other consideration received by Tenant from such subtenant in
connection with such sublease or in the case of an assignment of this Lease
by Tenant, Landlord shall receive 100% (one hundred percent) of any
consideration paid to Tenant by such assignee in connection with such
assignment.
3. "Premises Rentable Area" as shown on Lease Reference Page shall be amended
to reflect the additional suite 200 (5,870 RSF) shown on Exhibit A on the
fifth floor plus the existing suites totaling the square footage of 26,923
effective August 15, 1999.
4. "Tenant Proportionate Share" as shown on Lease Reference Page shall be
amended to reflect the expanded suite percentage of 42.73% effective August
15, 1999.
5. "Security Deposit" as shown on the lease Reference Page shall be amended
to reflect the addition of $39,133.32 to the existing security deposit to
total $206,112.06 as tenant security deposit for the amended lease.
6. "Term" as shown on the reference page shall as of August 15, 1999, be
amended to hereinafter additionally provide as follows: "SIX (6) YEARS
COMMENCING THE SOONER OF OCCUPANCY OR AUGUST 15, 1999 ON THE 5,870 SQUARE
FEET ONLY ADDED BY THIS FIFTH AMENDMENT"
2
INCORPORATION:
7 Except as herein modified, all other terms and conditions of the Lease between
the parties above described are ratified and affirmed and shall continue in full
force and effect.
The parties hereto have executed this Fifth Amendment to Lease on the
date specified below their respective signatures.
LANDLORD TENANT
XXXXX XXXXXX XXXX XXXXXXXX X.X.X. X0 NETWORKS, INC.
A WASHINGTON LIMITED LIABILITY CO. A WASHINGTON CORPORATION
BY: BY:
----------------------------------- -------------------------------
Xxxx X. Xxxxx, Xx. Xxxxxxx X. Xxxxxx
ITS: Managing Agent ITS: President and CEO
DATE: DATE:
-------------------------------- -----------------------------
BY:
-------------------------------
Xxxxxx X. Xxxxxxxxxxx
ITS:
------------------------------
DATE:
------------------------------
3
STATE OF WASHINGTON )
) SS
COUNTY OF SNOHOMISH )
I certify that I know or have satisfactory evidence that XXXX X.
XXXXX, XX. signed this instrument on oath, that he was authorized to execute
said instrument as the Managing Agent of FirstAvenue West Building L.L.C.
pursuant to the provisions of the Limited Liability Company and acknowledged
said instrument as the managing agent of the First Avenue West Building
L.L.C. to be the free and voluntary act of said Limited Liability Company for
the uses and purposes mentioned in said instrument
Date:
------------------------------------
------------------------------------------------
Notary Public in and for the State of Washington
residing at
------------------------------------
Print Name
My appointment expires:
------------------------
STATE OF WASHINGTON )
) SS
COUNTY OF KING )
On this _______ day of _______________________, 19____, personally
appeared before me XXXXXXX X. XXXXXX, to me known to be the President and CEO of
F5 Networks, Inc., the corporation that executed the within and foregoing
instrument and acknowledged said instrument to be the free and voluntary act and
deed of said corporation, for the uses and proposed therein mentioned, and on
oath stated that he was authorized to execute said instrument on behalf of said
corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year first above written.
Date:
------------------------------------
------------------------------------------------
Notary Public in and for the State of Washington
residing at
------------------------------------
Print Name
My appointment expires:
------------------------
4
STATE OF WASHINGTON )
) SS
COUNTY OF KING )
On this _______ day of _______________________, 19____, personally
appeared before me XXXXXX X. XXXXXXXXXXX, to me known to be the
_________________________ of F5 Networks, Inc., the corporation that executed
the within and foregoing instrument and acknowledged said instrument to be the
free and voluntary act and deed of said corporation, for the uses and proposed
therein mentioned, and on oath stated that he was authorized to execute said
instrument on behalf of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year first above written.
Date:
------------------------------------
------------------------------------------------
Notary Public in and for the State of Washington
residing at
------------------------------------
Print Name
My appointment expires:
------------------------
5