EXHIBIT 10.22
INDUSTRIAL LEASE - SINGLE TENANT
THIS LEASE AGREEMENT made this 4th day of June, 2001, by and between BENAROYA
CAPITAL COMPANY, LLC, a Washington limited liability company (the "Lessor") and
ICOS CORPORATION, a Delaware corporation (the "Lessee").
1. PREMISES. Lessor does hereby lease to Lessee those certain premises, to
wit: 22,200 square feet of space in Suite 100 in the Building known as
Canyon Park - 12 located at 00000 00xx Xxxxx XX, xx Xxxxxxx, Xxxxxxxxxx as
outlined on Exhibit A attached hereto (hereinafter called "Premises"). The
Building is hereafter sometimes referred to as the "Project". In addition,
the Lessee has the right, subject to the Rules and Regulations, to use of
the Common Areas including the parking areas.
2. TERM. The Lease shall be for a term of five (5) years commencing on the
Lease Commencement Date and expiring five (5) years thereafter. The Lease
Commencement Date will be the earlier to occur of the following, but in no
event before June 1, 2002 or later than October 1, 2002:
(a) any date specified by Lessee with at least six months prior
written notice to Lessor; or
(b) any date specified by Lessor with at least five months prior
written notice to Lessee.
Upon acknowledgment of receipt of the notice specified in (a) or (b) above
by either Lessor or Lessee respectively, the date specified in such notice
shall thereafter be the Lease Commencement Date.
3. RENT. Lessee covenants and agrees to pay Lessor at 0000 Xxxxxx Xxxxxx,
Xxxxx 0000, Xxxxxxx, XX 00000, or to such other party or at such other
place as Lessor may hereafter designate, monthly rent in advance without
offset or deduction, on or before the first (1st) day of each month of the
Lease term in the amounts as follows:
Months: Base Rent:
------- ----------
Months 1 - 12 $28,465.00 per month
Months 13 - 24 $29,461.00 per month
Months 25 - 36 $30,492.00 per month
Months 37 - 48 $31,560.00 per month
Months 49 - 60 $32,664.00 per month
4. SECURITY DEPOSIT. Lessee shall deposit with Lessor on the Commencement
Date Thirty-Two Thousand Six Hundred Sixty-Four and No/100 dollars
($32,664.00). Said sum shall be held by Lessor as security for the
faithful performance by Lessee of all the terms, covenants and conditions
of this Lease to be kept and performed by Lessee during the entire Term
hereof. If Lessee defaults with respect to any provision of this Lease,
including, but not limited to, the provisions relating to the payment of
Rent or other charges or sums due under this Lease, Lessor may (but shall
not be required to) use, apply or retain all or any part of the security
deposit for the payment of any Rent or other charges or sums due under
this Lease or any sum in default, or for the payment of any amount which
Lessor may spend or become obligated to spend by reason of Lessee's
default, or to compensate Lessor for any other loss, damage, cost or
expense (including reasonable attorneys' fees) which Lessor may suffer or
incur by reason of Lessee's default. If any portion of said security
deposit is so used or applied, Lessee shall, within five (5) days after
written demand therefor, deposit a certified or cashier's check with
Lessor in an amount sufficient to restore the security deposit to its
original amount and Lessee's failure to do so shall be a default under
this Lease. Lessor shall not be required to keep the security deposit
separate from its general funds and Lessee shall not be entitled to
interest on such deposit. If Lessee shall fully and faithfully perform
every provision of this Lease to be performed by it, the security deposit
or any balance thereof after deduction hereunder by Lessor shall be
returned to Lessee (or, at Lessor's option, to the last assignee of
Lessee's interest hereunder) within thirty (30) days
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following expiration of the Lease Term; provided, that in the event this
Lease shall be terminated upon the default of the Lessee, the security
deposit shall be retained by Lessor and all of Lessee's interest therein
shall terminate and the security deposit will be applied against the
damages suffered by Lessor by reason of the Lessee's default. In the event
of termination of Lessor's interest in this Lease, Lessor shall transfer
said deposit to Lessor's successor in interest.
5. USE. Lessee shall use and occupy the Premises for the purposes of office,
laboratory, process development and related support services (including
light manufacturing and storage related to the foregoing) and for no other
purposes, without prior written consent of Lessor (which consent shall not
be unreasonably withheld or delayed), and shall comply with all
governmental laws, ordinances, regulations, orders and directives and
insurance requirements applicable to Lessee's use of the Premises. Lessee
shall not occupy or use or permit any portion of the Premises to be
occupied or used in such a manner or for any purpose which would increase
the cost of insurance coverage upon the Premises, the building or the
contents thereof.
6. RULES AND REGULATIONS. Lessee agrees to comply with any Rules and
Regulations attached hereto, any recorded Covenants, Conditions and
Restrictions affecting the Project, as well as such other reasonable rules
and regulations as may from time to time be adopted by Lessor for the
management, good order and safety of common areas, the building and its
Lessee(s), provided, however, such rules, regulations, covenants,
conditions or restrictions do not prohibit or prevent Lessee's permitted
use of the Premises. Lessee shall be responsible for the compliance with
such rules and regulations by its employees, agents and invitees. Lessor's
failure to enforce any of such rules and regulations against Lessee or any
other Lessee shall not be deemed to be a waiver of same, provided,
however, Lessor agrees to enforce the rules and regulations equitably
among all tenants of the Project.
7. MAINTENANCE. Lessee agrees by taking possession that the Premises are in
tenantable and good condition. Lessee shall at its expense and at all
times keep, maintain, repair and replace the Premises, including but not
limited to storefronts, exterior doors and windows, Lessee division walls
and mechanical, electrical, sprinkler and other utility systems, together
with connections to utility distribution systems, in good condition,
repair and order and in accordance with applicable laws, ordinances,
rules, regulations and requirements of government authorities and
insurance rating bureaus. Lessee agrees to maintain a preventative
maintenance contract, or to establish a preventative maintenance program,
providing for the regular inspection and maintenance of the heating and
air conditioning systems with a licensed mechanical contractor and
containing terms and specifications acceptable to Lessor. Lessee shall
further keep the Premises and adjoining common areas in a neat, clean,
safe and sanitary condition; protect water, drain, gas and other pipes to
prevent freezing or clogging and repair all leaks and damage caused
thereby; replace all glass and panels in windows and doors of the Premises
which become cracked, broken or damaged; and remove ice and snow from
entries and common areas immediately adjacent to the Premises. After
reasonable notice from Lessee, Lessor shall repair the roof, exterior
walls (excluding storefronts, doors and windows), foundations and common
areas and facilities, if any, and the cost thereof shall be shared as
provided in Section 9 hereof.
8. UTILITIES AND FEES. Lessee agrees to pay promptly when due all charges for
light, heat, water, sewer, garbage, fire protection and other utilities
and services to the Premises, and all license fees and other governmental
charges levied on Lessee's property and the operation of Lessee's business
on the Premises. Lessor shall not be liable for any injury or damages
suffered as a result of the interruption of utilities or services by fire,
or other casualty, strike, riot, vandalism, the making of necessary
repairs or improvements, or other causes beyond Lessor's reasonable
control.
9. MONTHLY OPERATING EXPENSE ADJUSTMENTS. Lessee shall pay as additional
monthly rent its prorata share of all expenses incurred by Lessor for
operation of the Project during the term or any extension hereof, as
follows:
A. Real Estate taxes and assessments, together with any assessments
levied by the Owner's Association, if any.
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B. Usual and necessary costs of operation, management, maintenance and
repair (including replacement) as determined by standard accounting
practice, including without limitation, all utilities and services
not metered or charged directly to Lessee, insurance (including, but
not limited to the insurance provided for under Paragraph 16 C
below), painting, upkeep and repair of building exterior, roofing,
parking, landscaping, and all common areas and facilities. If any
portion of the Property, or any system or equipment is replaced by
Lessor, and if the useful life of such replaced item extends beyond
the term of this Lease (as such term may be extended by the exercise
of any options), the cost of such replacement will be amortized over
its useful life and Lessee will be responsible only for that portion
of the cost which is applicable to the lease term (as extended).
C. A Management fee equal to four and one quarter percent (4 1/4%) of
Lessee's monthly rent, including Base Rent and any Additional Rent.
Lessor shall from time to time estimate and provide notice to Lessee
of its monthly expense based upon existing or expected costs. Such
monthly estimated amount shall be paid by Lessee on or before the
first day of each month. Lessor, annually or upon termination
hereof, shall compute Lessee's actual expenses. Any overpayment
shall be applied as a credit to Lessee against future expense
payments.
Any deficiency shall be paid to Lessor by Lessee within fifteen (15)
days after the date of Lessor's statement. Lessor's records showing
expenditures made for such expenses shall be available for Lessee's
inspection at any reasonable time.
The determination of actual costs and estimated costs allocable to
the Premises shall be made by Lessor. Lessor or its agent shall keep
records showing all expenditures made for the items enumerated
above, which records shall be available for inspection and review by
Lessee. The Lessee shall have the right, at reasonable times and
upon reasonable prior notice to the Lessor to review the Lessor's
records relating to the actual costs and estimated costs allocable
to the Premises for a particular Lease Year, which review must be
conducted within six (6) months after Lessee's receipt of the
statement of actual costs allocable to the Premises for that
particular Lease Year. Lessor shall repay Lessee any overstated
amount(s) within thirty (30) days following Lessor's and Lessee's
mutual agreement that such overpayment by Lessee did occur. If such
review is not conducted within such six (6) month period, then the
matters set forth in the statement of actual costs allocable to the
Premises for that particular Lease Year shall be deemed conclusive.
The Lessee shall pay the costs and expenses of such review unless
such review reveals that the Lessor has overstated the Operating
Expenses for the Lease Year in question by an amount equal to 5% or
more for that particular Lease Year in which event the Lessor shall
pay up to $1,000 in payment of the actual costs incurred by Lessee
in the performance of such review.
10. LESSOR'S RESERVATIONS. Lessor reserves the right without liability to
Lessee: (a) at reasonable times and with notice that is reasonable under
the circumstances (except in the case of an emergency when no notice is
required) to inspect the Premises, and to show them to prospective Lessees
within the last twelve (12) months of the Lease Term or earlier
termination thereof, partners or lenders and if they are vacated, to
prepare them for re-occupancy; (b) to retain at all times and to use in
appropriate instances keys to doors within and into the Premises; (c) to
make repairs, alterations, additions or improvements, whether structural
or otherwise, in or about the building, and for such purposes to enter
upon the Premises and during the continuance of any work, to close common
areas and to interrupt or temporarily suspend building services and
facilities, all without affecting any of Lessee's obligations hereunder,
so long as the Premises are reasonably accessible; and (d) generally to
perform any act relating to the safety, protection and preservation of the
Premises or building.
11. POSSESSION. If Lessor does not deliver possession of the Premises at the
Commencement Date of the term of this Lease, then, unless such delay is
caused by Lessee, Lessee may give Lessor written notice of its intention
to cancel this Lease if possession is not delivered within ninety (90)
days after receipt of such notice by Lessor. Lessor shall not be liable
for any damages caused by failure to deliver possession of the Premises
and
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Lessee shall not be liable for any rent for such time and until such time
as Lessor delivers possession. A delay of possession shall not extend the
termination date. Notwithstanding the above, in the event the delay was
caused by Lessee, then the payment of Rent shall commence on the
Commencement Date and Lessee shall not have any right to cancel this Lease
as a result of such delay. If Lessor offers access to the Premises or any
portion thereof prior to the Commencement Date of the term of this Lease,
and if Lessee accepts such early access, then both parties shall be bound
by all of the covenants and terms contained herein during such period.
12. ASSIGNMENT AND SUBLETTING. Lessee shall not either voluntarily or by
operation of law assign, transfer, convey or encumber this Lease or any
interest under it, or sublet its right to occupy or use all or any portion
of the Premises without Lessor's prior written consent, which consent
shall not be unreasonably withheld or delayed. Among the criteria to be
used by Lessor in evaluating a request for assignment or subletting will
be (i) the proposed use of the Premises; (ii) the anticipated impact, if
any, on parking; (iii) the financial capacity of the assignee/sublessee to
perform the obligations under this Lease; (iv) the compatibility of the
proposed user with the remainder of the tenants and operation of the
Building. Lessor reserves the right to recapture the Premises or
applicable portion thereof in lieu of giving its consent by notice given
to Lessee within twenty (20) days after receipt of Lessee's written
request for assignment or subletting. Such recapture shall terminate this
Lease as to the applicable space effective on the prospective date of
assignment or subletting, which shall be the last day of a calendar month
and not earlier than sixty (60) days after receipt of Lessee's request
hereunder. Lessee may condition its request for Lessor's consent to an
assignment or subletting on Lessor's waiver of its recapture right. In the
event that Lessor shall not elect to recapture and shall thereafter give
its consent, Lessee shall pay Lessor a reasonable fee, not to exceed One
Thousand And No/100 Dollars ($1,000.00) to reimburse Lessor for processing
costs incurred in connection with such consent. Lessor's consent shall not
release or discharge Lessee from future liability under this Lease and
shall not waive Lessor's right to consent to any future assignment or
sublease. Any assignment or subletting without Lessor's consent shall be
void and shall, at Lessor's option, constitute a default under this Lease.
A transfer by the present majority shareholders of ownership or control of
a majority of the voting stock of a corporate Lessee, or the change in
form of entity of the Lessee, shall be deemed an assignment.
The Lessee shall not assign its interest in or under this Lease for
security purposes, nor shall the Lessee grant any security interest, lien
or encumbrance against its interest in this Lease or in or to any property
in or affixed to the Premises without the prior written consent of the
Lessor, which consent shall be granted, withheld or conditioned in
Lessor's sole discretion. In no event shall the Lessee grant, or allow to
exist, any security interest in, or lien or encumbrance against the fee
title to the Premises, the building in which the Premises is located or
the real property on which the building is located.
13. ALTERATIONS. Lessee shall lease the Premises in its "as is" broomswept
clean condition, as delivered to Lessee by Lessor. After obtaining the
prior written consent of Lessor, Lessee may make minor alterations,
additions and improvements in said Premises (so long as such alterations,
additions or improvements are not structural in nature and not visible
from the exterior of the Premises) at its sole cost and expense. Lessee
agrees to save Lessor harmless from any damage, loss, or expense arising
therefrom and to comply with all laws, ordinances, rules and regulations.
Upon termination of this Lease, all alterations, additions and
improvements made in, to or on the Premises (including without limitation
all electrical, lighting, plumbing, heating, air conditioning, and
communications equipment and systems, doors, windows, partitions, drapery,
carpeting, shelving, counters, and physically attached fixtures, except
trade fixtures, unless otherwise excluded by written agreement annexed
hereto), shall remain upon and be surrendered as a part of the Premises;
provided however, upon Lessor's request, Lessee shall remove its trade
fixtures and those items excluded by written agreement, and those
additions, alterations, or improvements as may be specified by Lessor, and
repair and restore the Premises to is original condition at Lessee's sole
cost and expense prior to expiration of the Term. Lessee may accompany its
request for consent with an additional request for a determination by
Lessor of its requirements with regard to the disposition of such
improvements at the expiration of the Lease. Lessor will respond to such
request along with it response to the request for consent.
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14. LIENS. Lessee shall keep the Premises free from any liens arising out of
any work performed, materials furnished, equipment supplied, or
obligations incurred by or on behalf of Lessee. No work performed,
material furnished, equipment supplied or obligations incurred by or on
behalf of Lessee shall be deemed to be for the immediate use and benefit
of Lessor so that no mechanic's lien or other lien shall be allowed
against Lessor's estate in the premises. Lessee shall provide, at Lessee's
own cost, waivers of lien signed by any party (including the Lessee) who
performs work, furnishes materials, or supplies equipment to the Premises.
For any single project, the cost of which will exceed Two Hundred Fifty
Thousand and No/100 dollars ($250,000.00), Lessor may require, at Lessee's
sole cost and expense, a lien release and completion bond in an amount
equal to either the actual contract price or one and one-half times the
estimated cost of any improvements, additions or alterations in the
Premises which Lessee desires to make, to insure Lessor against any
liability for lien and to insure completion of the work.
15. SIGNS. All signs or symbols placed by Lessee in the windows and doors of
the Premises, or upon any exterior part of the building, shall be subject
to Lessor's prior written approval. Prior to termination of this Lease,
Lessee will remove all signs placed by it upon the Premises, and will
repair any damages caused by such removal.
16. INSURANCE.
A. Lessee shall pay for and maintain, during the entire Lease Term, the
following policies of insurance:
(i) Commercial general liability insurance, including products,
completed operations coverage and auto liability insurance
covering Lessee's operations and the Premises with limits of
not less than $2,000,000 combined single limit for death,
personal injury and property damage per occurrence, including
Lessor as an additional insured. Such policies shall be
endorsed to provide contractual liability insurance covering
all liability assumed by Lessee under the provisions of this
Lease and a copy of said endorsement will be delivered to
Lessor prior to commencement of the Term.
(ii) Special cause of loss or "all risk" perils and sprinkler
leakage property insurance upon all building improvements and
alterations on the Premises for which Lessee is responsible
and upon Lessee's property in the amount of one hundred
percent (100%) full replacement cost. The policy shall include
Lessor and Lessor's mortgagee, if any, as additional insureds,
as their interests may appear, with a loss payable clause in
favor of Lessor and Lessor's mortgagee to the extent of their
interest in the property.
B. Each policy provided by Lessee shall expressly provide that it
shall not be subject to cancellation or material change without
at least thirty (30) days prior written notice to the Lessor.
Lessee shall furnish Lessor, prior to commencement of the Term,
with insurance certificates naming Lessor as additional insured
and, upon request, copies of such policies required to be
maintained hereunder.
X. Xxxxxx shall maintain property insurance during the entire Lease
Term in the amount of one hundred percent (100%) full replacement
value of the Building and Lessor's improvements. Lessors coverage
may include the perils of Special cause of loss ("all risk") and
earthquake.
17. INDEMNITY AGAINST LIABILITY FOR LOSS OR DAMAGE
A. Lessee assumes all liability for and shall indemnify, hold harmless
and defend Lessor from and against all loss, damage or expense which
the Lessor may sustain or incur, and against any and all claims,
demands, suits and actions whatsoever, including expense of
investigation and litigation, on account of injury to or death of
persons, including without limitation employees of Lessor, employees
of Lessee or its affiliated companies or on account of damage to or
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destruction of property, including without limitation property owned
by and property in the care, custody or control of Lessor during the
Term, due to or arising in any manner from:
(i) The acts or negligence of Lessee or any contractor,
subcontractor, or agent of Lessee or their respective
employees;
(ii) The condition, use or operation of the Premises and/or
materials or substances used by Lessee or any of its
contractors, subcontractors or agents of Lessee or by their
respective employees, regardless of whether or not furnished
by Lessor under this Lease or otherwise;
(iii) Any damage or injury to persons or property arising out of
Lessee's breach or this Lease, including, but not limited to,
obligations of Lessee under Section 7, Maintenance.
X. Xxxxxx shall have no liability to Lessee as a result of loss or
damage to Lessee's property or for death or bodily injury caused by
the acts or omissions of other tenants in the project or by third
parties (including criminal acts).
C. Lessee shall not be obligated to indemnify Lessor for the portion of
any claim or liability caused by or arising from the act, or
negligence of Lessor.
D. Lessee, its agents, trustees, officers, employees, contractors and
invitees, shall not be liable to Lessor or its agents, employees,
contractors or invitees or to any third party for any damage to
person or the Premises caused by or arising from or in connection
with any act, or negligence of Lessor. Lessor agrees to indemnify,
hold harmless and defend Lessee, its agents, trustees, officers,
employees, contractors and invitees from and against any and all
liability claims, causes of action, damages, costs and expenses
(including, without limitation, attorney's fees) arising from or in
connection with any act, or neglect of Lessor or its agents,
employees, contractors or invitees; and from any breach or default
under this Lease by Lessor.
E. It is mutually understood and agreed that the assumption of
liabilities and indemnification provided for in this Section 17
shall survive any termination of this Lease.
18. DAMAGE OR DESTRUCTION. If any of the Premises, or a substantial part of
the building in which the Premises are located, shall be damaged or
destroyed by fire or other insured casualty to the extent of more than 40%
of its replacement cost, and repair of the damage can not be completed
within one hundred eighty (180) days, following receipt by Lessor of
actual notice of such damage or destruction Lessor shall have the option
either (a) to repair or rebuild within a reasonable time utilizing the
insurance proceeds to effect such repair, or (b) not to repair or rebuild,
and to cancel this Lease on thirty (30) days notice. If Lessor fails to
give Lessee written notice of its election within thirty (30) days from
the date of damage, or if the restoration of the Premises cannot be
completed within one hundred eighty (180) days from date of notice, Lessee
may cancel this Lease at its option on thirty (30) days notice. During the
period of untenantability, rent shall xxxxx in the same ratio as the
portion of the Premises rendered untenantable bears to the whole of the
Premises; provided that if the damage is due to the fault or neglect of
Lessee, there shall be no abatement of rent.
If the Premises or the building in which the Premises are located shall be
damaged or destroyed by fire or other insured casualty, and repair of the
damage can be completed within one hundred eighty (180) days, Lessor shall
repair or rebuild within a reasonable time utilizing the insurance
proceeds to effect such repair.
If a substantial part of the Premises or the building in which the
Premises are located shall be damaged or destroyed by an uninsured
casualty Lessor shall have the option either (a) to repair or rebuild
within a reasonable time, or (b) not to repair or rebuild, and to cancel
this Lease on thirty (30) days notice. In the event of cancellation by
Lessor as a result of an uninsured casualty, Lessee shall have the right,
within five (5) days following Lessor's notice of cancellation, to
override such cancellation by agreeing to
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repair the damage at Lessee's sole cost and expense. In such event, the
Lessee shall repair or rebuild within a reasonable time following the
damage or destruction.
19. EMINENT DOMAIN. If the whole of the Premises shall be taken by any public
authority under the power of eminent domain, or purchased by the condemnor
in lieu thereof, then the term of this Lease shall cease as of the date
possession is taken by such public authority. If only part of the Premises
shall be so taken, the Lease shall terminate only as to the portion taken,
and shall continue in full force and effect as to the remainder of said
Premises, and the monthly rent shall be reduced proportionately; provided,
however, if the remainder of the Premises cannot be made tenantable for
the purposes for which Lessee has been using the Premises or if more than
twenty-five percent (25%) of the rentable square footage of the Premises
shall be so taken, then either party, by written notice to the other,
given at least thirty (30) days prior to the date that possession must be
surrendered to the public authority, may terminate this Lease effective as
of such surrender of possession. If any part of the building other than
the Premises shall be so taken so as to render in Lessor's opinion the
termination of this Lease beneficial to the remaining portion of the
building, Lessor shall have the right within sixty (60) days of said
taking to terminate this Lease upon thirty (30) days written notice to
Lessee. In the event of any taking, whether whole or partial, Lessor shall
be entitled to all awards, settlements, or compensation which may be given
for the land and buildings. Lessee shall have no claim against Lessor for
the value of any unexpired term of this Lease. Lessee shall have the right
to seek an independent and separate award from the condemning authority so
long as such award does not diminish the amount of the award payable to
Lessor.
20. INSOLVENCY. If Lessee shall be declared insolvent or bankrupt, or if
Lessee's leasehold interest herein shall be levied upon or seized under
writ of any court of law, or if a trustee, receiver or assignee be
appointed for the property of Lessee, whether under operation of State or
Federal statutes, then Lessor may, at its option, immediately, without
notice (notice being expressly waived), terminate this Lease and take
possession of said Premises.
21. DEFAULT AND RE-ENTRY. If Lessee fails to keep or perform any of the
covenants and agreements herein contained, then the same shall constitute
a breach hereof, and if Lessee has not remedied such breach within five
(5) days after any payment is due if the breach is non-payment of rent or
other charges, or within ten (10) days after written notice thereof from
Lessor in the event of the breach of any other covenant, except that if
the breach cannot reasonably be cured within such ten (10) day period,
then if Lessee fails to commence to cure within such ten (10) day period
and thereafter, diligently prosecute such cure to completion, then Lessor
may, at its option, without further notice or demand:
A. Cure such breach for the account and at the expense of Lessee
(including entry upon the Premises to make repairs on behalf of the
Lessee where Lessee has failed to make such repairs as required
under this Lease) and such expense shall be deemed additional rent
due on the first of the following month; or
B. Re-enter the Premises, remove all persons therefrom, take possession
of the Premises and remove all personal property therein at Lessee's
risk and expense and (1) terminate this Lease, or (2) without
terminating the Lease or in any way affecting the rights and
remedies of Lessor or the obligations of Lessee, re-let the whole or
any part of the Premises as agent for Lessee, upon such terms and
conditions as Lessor may deem advisable. In either event, any moneys
received from Lessee and any deposit or other amounts held by Lessor
may first be applied by Lessor to any damages suffered by Lessor as
a result of such default, including without limitation, costs and
expenses incurred on re-entry and re-letting, any unamortized tenant
improvements and commissions, cleaning, necessary repairs,
restoration and alteration, and any commissions incurred on
re-letting, and the balance of such amounts may be applied toward
payment of other sums due to Lessor hereunder. In the event the
Premises are re-let for Lessee's account, Lessee shall pay to Lessor
monthly any deficiency; however, Lessor shall not be required to pay
any excess to Lessee. Upon termination of this Lease or of Lessee's
right to possession, Lessor has the right to recover from Lessee:
(1) The worth of the unpaid rent that had been earned at the time of
such
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termination; (2) The worth of the amount of the unpaid rent that
would have been earned after the date of such termination; and (3)
Any other amount, including court, reasonable attorney and
collection costs, necessary to compensate Lessor. "The Worth," as
used in Section (1) is to be calculated allowing interest at 18% per
year (or, if applicable, at such lower rate as may represent the
highest legal limit allowed in the State of Washington). "The worth"
as used for Section (2) is to be computed by discounting the amount
at the discount rate of the Federal Reserve Bank of San Francisco at
the time of termination. The above remedies of Lessor are cumulative
and in addition to any other remedies now or hereafter allowed by
law or elsewhere provided for in this Lease. Notwithstanding
anything to the contrary in this Section 21, Lessee does not waive
any right it may have to require Lessor to mitigate its damages.
22. REMOVAL OF PROPERTY. Any personal property (excluding intellectual
property) of Lessee removed by Lessor in accordance with Section 21 above
may be stored, sold, or disposed of by Lessor without any additional
notice to Lessee at the sole risk and expense of Lessee and without any
further responsibility of Lessor. Proceeds therefrom may be applied by
Lessor upon any indebtedness due from Lessee to Lessor. Lessee waives all
claims for damages that may be caused by Lessor re-entering the Premises
and removing or disposing of said property as herein provided.
23. COSTS AND ATTORNEYS' FEES. In the event either party shall commence legal
action to enforce any provision of this Lease, the court shall award to
the prevailing party all reasonable attorneys' fees and all costs incurred
in connection therewith, including fees and costs on appeal. Any action
relating to this Lease shall be brought in the County in which the
Premises are located or, at Lessor's election, in King County, Washington.
24. SUBROGATION WAIVER. Lessor and Lessee each herewith and hereby release and
relieve the other and waive its entire right of recovery against the other
for loss or damage arising out of or incident to the perils of fire,
explosion or any other perils described in the "all risk" insurance and
the events covered under the property insurance coverages required under
this Lease, whether due to the negligence of either party, their agents,
employees or otherwise. Each party shall obtain from its respective
insurer under each insurance policy that it maintains a waiver of all
rights of subrogation which the insurer may have against the other party
for claims that are released under this Section 24.
25. HOLDING OVER. If Lessee, with the express consent of Lessor, shall hold
over after the expiration of the term of this Lease, Lessee shall remain
bound by all the covenants and agreements herein, except that (a) the
tenancy shall be from month-to-month and (b) the monthly rent to be paid
by Lessee shall be determined by multiplying the monthly rent in effect
immediately preceding such expiration times 150%. If Lessee holds
possession of the Demised Premises after the expiration of the Lease
without the express written consent of Lessor, Lessee shall remain bound
by all the covenants and agreements herein, except that (a) the tenancy
shall be from month-to-month and (b) the monthly rent to be paid by Lessee
shall be the greater of twice the Monthly Minimum Rent in effect
immediately preceding such expiration or the total loss to Lessor as a
result of Lessee's holdover, if, effective during the term of such
holdover, Lessor has leased all or part of the Premises to other
Lessee(s). Any such tenancy may be terminated with twenty (20) days prior
notice as provided by Washington State law.
In the event of any unauthorized holding over, Lessee shall also indemnify
and hold Lessor harmless from and against all liability, losses, claims,
causes of action, damages, costs and expenses (including without
limitation attorney fees) resulting from Lessee's failure to surrender the
Premises, including without limitation claims made by succeeding Lessees
resulting from Lessee's failure to surrender the Premises.
Lessee's obligations under this Section 25 shall survive the expiration or
termination of this Lease.
26. SUBORDINATION AND ATTORNMENT; MORTGAGE PROTECTION.
A. SUBORDINATION-NOTICE TO MORTGAGEE. At the request of Lessor, Lessee
shall promptly execute, acknowledge and deliver, all instruments
which may be
8
required to subordinate this Lease to any existing or future
mortgages, deeds of trust and/or other security documents on or
encumbering the Premises or on the leasehold interest held by
Lessor, and to any extensions, renewals, or replacements thereof,
provided that the mortgagee or beneficiary, as the case may be,
shall agree to recognize this Lease in the event of foreclosure if
Lessee is not in material default at such time by providing a
subordination and non-disturbance agreement in a commercially
reasonable form.
B. LESSEE'S CERTIFICATE. Lessee shall at any time, and from time to
time, within fourteen (14) days after written notice from Lessor,
execute, acknowledge and deliver to Lessor a statement in writing
(a) certifying that this Lease is unmodified and in full force and
effect (or, if modified, stating the nature of such modification and
certifying that this Lease as so modified is in full force and
effect), and the date to which the rental and other charges are paid
in advance, if any; and (b) acknowledging that there are not, to
Lessee's knowledge, any uncured defaults on the part of the Lessor
or Lessee hereunder, or specifying such defaults if any are claimed;
and (c) setting forth the date of commencement of rents and
expiration of the Lease Term hereof; and, (d) such other information
as the Lessor shall reasonably require. Any such statement may be
relied upon by any prospective purchaser or encumbrancer of all or
any portion of the Premises of which the Premises are a part.
C. MORTGAGEE PROTECTION CLAUSE. Lessee agrees to notify any mortgagee
and/or trust deed holders, by registered mail, with a copy of any
notice of default served upon the Lessor, provided that prior to
such notice Lessee has been notified in writing (by way of Notice of
Assignment of Rents and Lease, or otherwise) of the addresses of
such mortgagees and/or trust deed holders. Lessee further agrees
that if Lessor shall have failed to cure such default, then the
mortgagees and/or trust deed holders have thirty (30) days within
which to cure such default or if such default cannot be cured within
that time, then such additional times as may be necessary if within
such thirty (30) days any mortgagee and/or trust deed holder has
commenced and is diligently pursuing the remedies necessary to cure
such default (including but not limited to commencement of
foreclosure proceedings if necessary to affect such cure), in which
event this Lease shall not be terminated if such remedies are being
so diligently pursued.
27. SURRENDER OF POSSESSION. Lessee shall, prior to the termination of this
Lease or of Lessee's right to possession, remove from the Premises all
personal property which Lessee is entitled to remove and those
alterations, additions, improvements or signs which may be required by
Lessor to be removed, pursuant to Sections 13 and 15 above, and shall
repair or pay for all damage to the Premises caused by such removal. All
such property remaining and every interest of Lessee in the same shall be
conclusively presumed to have been conveyed by Lessee to Lessor under this
Lease as a xxxx of sale, without compensation, allowance, or credit to
Lessee. Lessee shall upon termination of this Lease or of Lessee's right
of possession, deliver all keys to Lessor and peacefully quit and
surrender the Premises without notice, neat and clean, and in as good
condition as when Lessee took possession, except for reasonable wear and
tear as determined by Lessor and except for damage by casualty or
condemnation.
28. LATE PAYMENT AND INTEREST. If any amount due from Lessee is not received
in the office of Lessor on or before the fifth (5th) day following the
date upon which such amount is due and payable, a late charge of five
percent (5%) of said amount shall become immediately due and payable,
which late charge Lessor and Lessee agree represents a fair and reasonable
estimate of the processing and accounting costs that Lessor will incur by
reason of such late payment. All past due amounts owing to Lessor under
this Lease, including rent, shall be assessed interest at an annual
percentage rate of eighteen percent (18%) from the date due until paid.
29. NOTICE. Any notice, communication or remittance required or permitted by
this Lease by either party to the other shall be deemed given, served or
delivered, in writing, delivered personally or by courier or by telephonic
facsimile transmission with automatic confirmation, addressed to the
Lessor at the address specified for the
9
payment of rent under paragraph 3 of this Lease or to Lessee at the
Premises or to such other address as either party may designate to the
other in writing from time to time.
30. NO WAIVER OF COVENANTS. Time is of the essence of this Lease. Any waiver
by either party of any breach hereof by the other shall not be considered
a waiver of any future similar or other breach.
31. ENTIRE AGREEMENT. It is expressly understood and agreed by Lessor and
Lessee that there are no promises, agreements, conditions, understandings,
inducements, warranties, or representations, oral or written, express or
implied, between them, other than as herein set forth and that this Lease
shall not be modified in any manner except by an instrument in writing
executed by the parties.
32. BINDING ON HEIRS, SUCCESSORS AND ASSIGNS. The covenants and agreements of
this Lease shall be binding upon the heirs, executors, administrators,
successors and assigns of both parties hereto, except as hereinabove
provided.
33. LESSOR'S ASSIGNMENT. It is fully understood that Lessor shall have the
full right to assign this Lease, without any notice to Lessee, thereby
relieving Lessor from all and any liabilities; provided however, that the
assignee assumes all Lessor's responsibilities as set forth in this Lease.
34. ENVIRONMENTAL. See Rider One attached and incorporated into this Lease by
this reference.
35. BROKERS; AGENCY DISCLOSURE; BROKERAGE RELATIONSHIPS.
[Intentionally deleted.]
36. FORCE MAJEURE. Lessor shall have no liability to Lessee on account of the
following acts of "force majeure," which shall include (a) the inability
of Lessor to fulfill, or delay in fulfilling, any of Lessor's obligations
under this Lease by reason of strike, lockout, other labor trouble,
dispute or disturbance; (b) governmental regulation, moratorium, action,
inaction, preemption or priorities or other controls, including delays in
receipt of permits; (c) shortages of fuel, supplies or labor; (d) any
failure or defect in the supply, quantity or character of electricity or
water furnished to the Premises by reason of any requirement, act or
omission of the public utility or others furnishing the Building with
electricity or water; or (e) for any other reason, whether similar or
dissimilar to the above, or for act of God, beyond Lessor's reasonable
control. If this Lease specifies a time period for performance of an
obligation of Lessor, that time period shall be extended by the period of
any delay in Lessor's performance caused by any of the events of force
majeure described herein.
37. LIMITATION OF LIABILITY. The recourse of Lessee to recover any claim
against Lessor arising under this Lease shall be limited to Lessor's
interest in the Building and to the rents, issues and profits from the
Building. Lessee waives any and all recourse for any such liability
against Lessor's members, partners, shareholders, trustees or
beneficiaries, or any property or assets of Lessor other than the
Building.
38. OPTION TO EXTEND. Lessor hereby grants to Lessee two successive options to
extend this Lease for additional terms of five (5) years each commencing
on the first day after the Expiration Date of the previous term. Lessee
must exercise the option to extend, if at all, by giving Lessor written
notice of such exercise not less than twelve (12) months prior to the
expiration date of the then current term. Upon the exercise of the option
to extend, the term of this Lease shall be extended through the expiration
date of the Renewal Term on the same terms and conditions as contained
herein, except that there shall be no option to extend the term of this
Lease beyond the Second Renewal Term, and the Base Monthly Rent during the
Renewal Terms shall be determined pursuant to this Section.
Base Monthly Rent for each Renewal Term shall be the greater of (a) the
Base Monthly Rent scheduled for the final month of the preceding term (the
initial term or the First Renewal Term, as the case may be), or (b) the
fair market base rental value of the Premises.
10
Lessor and Lessee agree to be reasonable in their negotiation of rent for
the option periods. Lessor and Lessee shall have thirty (30) days after
Lessee provides Lessor of its notice to exercise its Option to Renew to
set the rent for the option period(s). If Lessor and Lessee are unable to
establish the rent for the option period(s) within the thirty (30) day
period then Lessor and Lessee shall each appoint an appraiser with not
less than ten (10) years experience in real estate appraisal in the
Bellevue real estate market, to set the rent for the option period(s). If
the rents proposed by each appraiser are within ten (10%) percent of each
other, then the rent for the option period(s) shall be the average of the
two rents. If the rents proposed by each appraiser are greater than ten
(10%) percent from each other then the two appraisers will select a third
appraiser who shall also have at least (10) years real estate appraisal
experience in the Bellevue real estate market, to set the rent for the
option period(s). The rent established by the third appraiser will be
binding on Lessor and Lessee and will be no less than the rent proposed by
Lessee and no higher than the rent proposed by Lessor. The total cost of
all of the appraiser's fees will be the responsibility of the party whose
proposed rental rate is farthest from that of the final rental rate
established by the appraisers.
39. RIGHT OF FIRST OPPORTUNITY TO PURCHASE.
39.1 GRANT OF RIGHTS. In the event Lessor intends to sell or to make the
Building in which the Premises are located available for purchase to
unrelated third parties, and provided Lessor is not selling the Building
as part of a portfolio of buildings, Lessor shall give Lessee written
notice of this intention and of the intended offering sale price of the
Premises ("Lessor's Notice"). Lessor will offer the sales price to Lessee
in good faith. In the event Lessee desires to purchase the Premises at the
offering sale price indicated by Lessor, Lessee shall give to Lessor a
written notice of such desire ("Lessee's Notice") within seven days of
receipt of the Lessor's Notice. If the Lessee's Notice is not timely given
by Lessee, Lessee shall have no further rights under this Section 39. In
the event Lessee's Notice is timely given by Lessee, then Lessor and
Lessee shall negotiate during the remainder of the 30 day period following
the giving of Lessor's Notice in good faith to attempt to execute a
definitive purchase and sale agreement whereby Lessor would sell to Lessee
and Lessee would purchase from Lessor the Premises at the price stated in
Lessor's Notice. During the 30 day period any offer of the property
publicly or privately will be subject to Lessee's rights hereunder.
Neither party shall have any obligation to execute a purchase and sale
agreement not acceptable to such party, in its sole and absolute
discretion. In the event the parties fail to execute a mutually agreeable
purchase and sale agreement within the 30 day period allowed, or in the
event such a purchase and sale agreement is executed but is subsequently
terminated without consummation of the sale, Lessee shall have no further
rights under this Section 39. In no event shall Lessee have the right to
assert any right to purchase the Building once Lessor has executed a
contract for the sale of the Premises to a third party as otherwise
permitted under this Section 39, even if the price under such contract, as
the same may be amended, is less than the price stated in Lessor's Notice.
It is expressly agreed that any price set forth in Lessor's Notice given
to Lessee, and any transaction whereby the Building is sold to Lessee,
will be on the basis that Lessor shall pay no real estate commission on
account of such sale to any broker representing Lessee. It is further
acknowledged that Lessor may subsequently offer the Premises to third
parties at a price less than, equal to or greater than the price set forth
in the Lessor's Notice.
39.2 LIMITATION OF RIGHTS. The notification and negotiation rights allowed
to Lessee pursuant to Section 39.1 are allowed on a "one time" basis only,
and except as otherwise provided in Section 39.1 above, Lessor shall have
no obligation to re-notify Lessee of any changes in its sales intentions
or offering price, nor to re-notify Lessee of subsequent sales efforts if
Lessor does not sell the Building following the Lessor's Notice.
39.3 EXCLUSIONS. The rights of Lessee under this Section 39 are limited to
notification and negotiation in anticipation of Lessor offering the
Building to purchase by unrelated third parties. There shall be no
notification or negotiation rights of Lessee in any other case whatsoever,
including but not limited to cases of (a) a conveyance by Lessor to an
affiliated party and any conveyance in connection with a merger or other
corporate transaction, (b) a conveyance by Lessor to a lender who then
holds a lien on the
11
Premises, (c) a conveyance in connection with a foreclosure sale, (d) a
conveyance or taking in connection with a condemnation, (e) a conveyance
which is part of a financing transaction (for example, a sale and master
lease back), (f) a conveyance by any subsequent owner of the Building
other than the Lessor originally named herein, or (g) a sale or offering
in which Lessor packages the Building with one or more other properties
owned by Lessor and/or any affiliate of Lessor for sale as a group, on the
open market or otherwise. No conveyance of any or all of the ownership
interests within Lessor (for example, membership interests in the limited
liability company) shall be deemed a conveyance or sale of the Premises.
39.4 PERSONAL NATURE OF RIGHTS. Upon any assignment of this Lease or of
any sublease of all or a part of the Premises, the rights granted to
Lessee pursuant to Section 39.1 shall terminate. The rights granted to
Lessee pursuant to Section 39.1 shall also terminate upon the termination
of this Lease or of Lessee's right of possession.
40. EXHIBITS. The following exhibits or riders are made a part of this Lease
and are incorporated herein by reference:
Rider One - Environmental
Exhibit A - Premises
Exhibit B - Rules and Regulations
Rider Two - Additional Lease Provisions
LESSOR: LESSEE:
BENAROYA CAPITAL COMPANY, LLC ICOS CORPORATION
/s/ Xxxxx X. Xxxxxxxx
By: Xxxxx X. Xxxxxxxx By: /s/ Xxxx Xxxxxx
----------------------- -------------------------
Its: Manager Its: EVP, Operations
---------------------- ------------------------
Date: 6/12/01 Date: 6/12/01
---------------------- -----------------------
12
STATE OF WASHINGTON ]
] ss.
COUNTY OF KING ]
I certify that I know or have satisfactory evidence that Xxxxx X. Xxxxxxxx
is the person who appeared before me, a Notary Public in and for the State of
Washington duly commissioned and sworn, and acknowledged that he is the Manager
of BENAROYA CAPITAL COMPANY, LLC, a Washington limited liability company, who
executed the within and foregoing instrument, and acknowledged the instrument to
be the free and voluntary act and deed of said company for the uses and purposes
therein mentioned, and on oath stated that affiant is authorized to execute said
instrument on behalf of said company.
IN WITNESS WHEREOF I have hereunto set my hand and affixed my official seal the
day and year first above written.
/s/ Xxxxxxx X. Xxxxxx
------------------------------------
Notary Public in and for the
State of Washington
residing at Seattle
Commission expires 11/9/02
Print Name Xxxxxxx X. Xxxxxx
STATE OF WASHINGTON ]
] ss.
COUNTY OF Snohomish ]
I certify that I know or have satisfactory evidence that Xxxx Xxxxxx is
the person who appeared before me, a Notary Public in and for the State of
Washington duly commissioned and sworn, and acknowledged that he/she is the
representative, of ICOS CORPORATION, a Delaware corporation, who executed the
within and foregoing instrument, and acknowledged the instrument to be the free
and voluntary act and deed of said corporation for the uses and purposes therein
mentioned, and on oath stated that affiant is 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.
/s/ Xxxx X. Xxxxxxx
------------------------------------
Notary Public in and for the
State of Washington
residing at Snohomish
Commission expires 4/29/02
Print Name Xxxx X. Xxxxxxx
13
RIDER ONE
EMISSIONS; STORAGE, USE AND DISPOSAL OF WASTE
a. EMISSIONS. Lessee shall not discharge, emit or permit to be discharged or
emitted, any liquid, solid or gaseous matter, or any combination thereof,
into the atmosphere, the ground or any body of water, which does or may
pollute or contaminate the same, or does or may adversely affect the
health or safety of persons, or the use or enjoyment of the Premises.
Lessee may transmit, receive or permit to be transmitted or received, any
electromagnetic, microwave or other radiation in, on or about the
Premises, provided, however, that such electromagnetic, microwave or other
radiation is used in connection with Lessee's Permitted Use of the
Premises, and that such use complies with all pertinent federal, state,
and local statutes, rules, regulations, ordinances and orders that such
use does not interfere with the use of any other tenant or owner within
Canyon Park.
b. STORAGE. If, with or without violation of this Lease, Lessee possesses at
the Premises any matter described in Section A above or any Hazardous
Substances (as defined below), Lessee shall store the same in appropriate
leak proof containers and/or areas which comply with all laws and all
prudent practices.
c. DISPOSAL OF WASTE. Lessee shall not keep any trash, garbage, waste or
other refuse on the Premises except in sanitary containers and shall
regularly and frequently remove same from the Premises. Lessee shall keep
all such containers in a clean and sanitary condition. Lessee shall
properly dispose of all sanitary sewage and shall not use the sewage
system for the disposal of anything except sanitary sewage, nor in excess
of capacity. Lessee shall not cause any obstruction in the sewage disposal
system.
d. COMPLIANCE OF LAW. Notwithstanding any other provision in the Lease to the
contrary, Lessee shall comply with all Laws in complying with its
obligations under this Lease, and in particular, Laws relating to the
storage, use and disposal of Hazardous Substances (as defined below).
e. INDEMNIFICATION FOR BREACH. Lessee shall defend, indemnify and hold
Lessor, the Project and the holder of a trust deed or mortgage on the
Project harmless from any loss, claim, liability or expense, including,
without limitation, attorneys fees and costs, at trial and/or on appeal
and review, arising out of or in connection with its failure to observe or
comply with the provisions of this Rider. This indemnity shall survive the
expiration or earlier termination of the term of the Lease or the
termination of Lessee's right of possession and be fully enforceable
thereafter.
f. INDEMNIFICATION REGARDING HAZARDOUS SUBSTANCES. In addition to the
indemnity obligations contained elsewhere herein, Lessee shall indemnify,
defend and hold harmless Lessor, the Premises, the Project, and the holder
of a trust deed or mortgage on the Project, from and against all claims,
losses, damages, monitoring costs, response costs, liabilities, and other
costs expenses caused by, arising out of, or in connection with, the
generation, release, handling, storage, discharge, transportation, deposit
or disposal in, on, under or about the Premises by Lessee or any of
Lessee's agents of the following (collectively referred to as "Hazardous
Substances"): hazardous materials, hazardous substances, toxic wastes,
toxic substances, pollutants, petroleum products, underground tanks, oils,
pollution, asbestos, PCB's, radioactive materials, or contaminants, as
those terms are commonly used or as defined by federal, state, and/or
local law or regulation related to protection of health or the environment
as any of same may be amended from time to time, and/or by any rules and
regulations promulgated thereunder. Such damages, costs, liability and
expenses shall include such as are claimed by any regulating and/or
administering agency, any ground lessor or master lessor of the Project,
the holder of any Mortgage or Deed of Trust on the Project, and/or any
successor of the Lessor named herein. This indemnity shall include (i)
claims of third parties, including governmental agencies, for damages,
fines, penalties, response costs, monitoring costs, injunctive or other
relief; (ii) the costs, expenses or losses resulting from any injunctive
relief, including preliminary or temporary injunctive relief; (iii) the
expenses, including fees of attorneys and experts, of report the existence
of Hazardous Substances to an agency of the State of which the Premises is
located or of the United States as required by applicable laws and
regulations; and (iv) any and all expenses or obligations, including
attorney's fees, incurred at, before and after any
14
administrational proceeding, trial, appeal and review. This indemnity
shall survive the expiration or earlier termination of the term of the
Lease or the termination of Lessee's right of possession and shall remain
fully enforceable thereafter.
g. INFORMATION. Lessee shall give prior written notice to Lessor of any use,
whether incidental or otherwise, of Hazardous Substances on the Premises,
and shall immediately deliver to Lessor a copy of any notice of any
violation of any Law with respect to such use. Lessee shall also provide
to Lessor, upon request, with any and all information regarding Hazardous
Substances in the Premises, including contemporaneous copies of all
filings and reports to governmental entities, and any other information
requested by Lessor. In the event of any accident, spill or other incident
involving Hazardous Substances, Lessee shall immediately report the same
to Lessor and supply Lessor with all information and reports with respect
to the same. All information described herein shall be provided to Lessor
regardless of any claim by Lessee that it is confidential or privileged.
15
EXHIBIT A
PREMISES
16
EXHIBIT B
RULES AND REGULATIONS
1. Except as specifically provided in the Lease to which these Rules and
Regulations are attached, no sign, placard, picture, advertisement, name
or notice shall be installed or displayed on any part of the outside or
inside of the Building or Project without the prior written consent of
Lessor. Lessor shall have the right to remove, at Lessee's expense and
without notice, any sign installed or displayed in violation of this rule.
All approved signs or lettering on doors and walls shall be printed,
painted, affixed or inscribed at the expense of Lessee by a person
approved by Lessor.
2. If Lessor objects in writing to any curtains, blinds, shades, screens or
hanging plants or other similar objects attached to or used in connection
with any window or door of the Premises, or placed on any windowsill,
which is visible from the exterior of the Premises, Lessee shall
immediately discontinue such use. Lessee shall not place anything against
or near glass partitions or doors or windows which may appear unsightly
from outside the Premises.
3. Lessee shall not obstruct any sidewalks, halls, passages, exits,
entrances, elevators or stairways of the Project. The halls, passages,
exits, entrances, elevators and stairways are not open to the general
public, but are open, subject to reasonable regulations, to Lessee's
business invitees. Lessor shall in all cases retain the right to control
and prevent access thereto of all persons whose presence in the judgment
of Lessor would be prejudicial to the safety, character, reputation and
interest of the Project and its Lessees; provided that nothing herein
contained shall be construed to prevent such access to personnel with whom
any Lessee normally deals in the ordinary course of its business, unless
such persons are engaged in illegal or unlawful activities. No Lessee and
no employee or invitee of any Lessee shall go upon the roof(s) of the
Project, except certified HVAC employees of Lessee or Lessee's HVAC
contractor.
4. Lessor will furnish Lessee, free of charge, with two keys to each door
lock in the Premises. Lessor may make a reasonable charge for any
additional keys. Lessee shall have the right to install a card key system
and to make or have made additional keys, and Lessee shall have the right
to lock or install a new additional lock or bolt on any door of its
Premises, provided Lessee provides Lessor with a pass key to access the
Premises or any portion thereof. Lessee, upon the termination of its
tenancy, shall deliver to Lessor the keys of all doors which have been
furnished to Lessee, and in the event of loss of any keys so furnished,
shall pay Lessor therefor.
5. If Lessee requires telegraphic, telephonic, burglar alarm or similar
services, it shall first obtain, and comply with, Lessor's instructions in
their installation.
6. No equipment, materials, furniture, packages, supplies, merchandise or
other property will be received in the Building or carried in the
elevators except between such hours and in such elevators as may be
designated by Lessor. Lessee's initial move in and subsequent deliveries
of bulky items, such as furniture, safes and similar items shall, unless
otherwise agreed in writing by Lessor, be made during the hours of 6:00
p.m. to 6:00 a.m. or on Saturday or Sunday. Deliveries during normal
office hours shall be limited to normal office supplies and other small
items. No deliveries shall be made which impede or interfere with other
Lessees or the operation of the Building.
7. Lessee shall not place a load upon any floor of the Premises which exceeds
the load per square foot which such floor was designed to carry and which
is allowed by Law. Lessor shall have the right to prescribe the weight,
size and position of all equipment, materials, furniture or other property
brought into the Building. Heavy objects shall, if considered necessary by
Lessor, stand on such platforms as determined by Lessor to be necessary to
properly distribute the weight, which platforms shall be provided at
Lessee's expense. Business machines and mechanical equipment belonging to
Lessee which cause noise or vibration that may be transmitted to the
structure of the Building or to any space therein shall be placed and
maintained by Lessee, at Lessee's expense, on vibration eliminators, or
other devices sufficient to eliminate noise or vibration. The persons
employed to move such equipment in or out of the Building must be
acceptable to Lessor. Lessor will not be responsible for loss of, or
damage to, any such equipment
17
or other property from any cause, and all damage done to the building by
maintaining or moving such equipment or other property shall be repaired
at the expense of Lessee.
8. Lessee shall use the Premises only for general office, laboratory,
research, process and product development and related uses, including
without limitation, light manufacturing and storage. Lessee shall not
allow any use of the Premises which will negatively affect cost of
coverage of Lessor's insurance on the Project. Lessee shall not allow any
use of the Premises which would cause the value of any part of the
Premises to diminish or would interfere with the use of any other tenant
or owner within Canyon Park. Lessee shall not permit any nuisance or waste
upon the Premises, or allow any offensive noise or odor in or around the
Premises.
9. Lessee shall use heating or air conditioning systems supplied by the
Lessor, and/or heating and air conditioning systems added to the building
by the Lessee.
10. Lessee shall not waste electricity, water or air conditioning and agrees
to cooperate fully with Lessor to assure the most effective operation of
the Building's heating and air conditioning and to comply with any
governmental energy-saving rules, laws or regulations of which Lessee has
actual notice, and shall refrain from attempting to adjust controls.
Lessee shall keep corridor doors closed, and shall close window coverings
at the end of each business day.
11. Lessor reserves the right, exercisable without notice and without
liability to Lessee, to change the name and street address of the
Building.
12. Lessor reserves the right to exclude from the Building between the hours
of 6 p.m. and 7 a.m. the following day, or such other hours as may be
established from time to time by Lessor, and on Sundays and legal
holidays, any person unless that person is known to the person or employee
in charge of the Building and has a pass or is properly identified. Lessee
shall be responsible for all persons for whom it requests passes and shall
be liable to Lessor for all acts of such persons. Lessor shall not be
liable for damages for any error with regard to the admission to or
exclusion from the Building of any person. Lessor reserves the right to
prevent access to the Building in case of invasion, mob, riot, public
excitement or other commotion by closing the doors or by other appropriate
action.
13. Lessee shall entirely shut off any water faucets or other water apparatus,
and electricity, gas or air outlets before Lessee and its employees leave
the Premises. Lessee shall be responsible for any damage or injuries
sustained by other Lessees or occupants of the Building or by Lessor for
noncompliance with this rule.
14. The toilet rooms, toilets, urinals, wash bowls and other apparatus shall
not be used for any purpose other than that for which they were
constructed and no foreign substance of any kind whatsoever shall be
thrown therein. The expense of any breakage, stoppage or damage resulting
form the violation of this rule shall be borne by the Lessee who, or whose
employees or invitees, shall have caused it.
15. Lessee shall not sell, or permit the sale at retail of newspapers,
magazines, periodicals, theater tickets or any other goods or merchandise
to the general public in or on the Premises. Lessee shall not make any
room-to-room solicitation of business from other Lessees in the Project.
Lessee shall not use the Premises for any business or activity other than
that specifically provided for in Lessee's Lease. Canvassing, soliciting
and distribution of handbills or any other written material, and peddling
in the Project are prohibited, and Lessee shall cooperate to prevent such
activities.
16. Lessee shall not install any radio or television antenna, loudspeaker or
other devices on the roof(s) or exterior walls of the Building or Project.
Lessee shall not interfere with radio or television broadcasting or
reception from or in the Project or elsewhere.
17. Lessee shall not xxxx, drive nails, screw or drill into the partitions,
woodwork or plaster or in any way deface the Premises or any part thereof,
except in accordance with the provisions of the Lease pertaining to
alterations. Lessor reserves the right to direct electricians as to where
and how telephone and telegraph wires are to be introduced to
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the Premises. Lessee shall not cut or bore holes for wires. Lessee shall
not affix any floor covering to the floor of the Premises in any manner
except as approved by Lessor. Lessee shall repair any damage resulting
from noncompliance with this rule.
18. Lessee shall not install, maintain or operate upon the Premises any
vending machines without the written consent of Lessor.
19. Lessor reserves the right to exclude or expel from the Project any person
who, in Lessors' judgment, is intoxicated or under the influence of liquor
or drugs or who is in violation of any of the Rules and Regulations of the
Building.
20. Lessee shall store all its trash and garbage within its own storage
facilities on the Premises, and shall be responsible, at its sole cost and
expense, for disposal of its trash and garbage (in a manner reasonably
acceptable to Lessor). Lessee shall not place in any trash box or
receptacle any material which cannot be disposed of in the ordinary and
customary manner of trash and garbage disposal.
21. Except as otherwise provided herein, the Premises shall not be used for
the storage of merchandise held for sale to the general public, or for
lodging or for manufacturing of any kind, nor shall the Premises be used
for any improper, immoral or objectionable purpose. No cooking shall be
done or permitted on the Premises without Lessor's consent, except that
used by Lessee of Underwriters' Laboratory approved equipment for brewing
coffee, tea, hot chocolate and similar beverages or use of microwave ovens
for employee use shall be permitted, provided that such equipment and use
is in accordance with all applicable Laws.
22. Lessee shall not use in any space or in the public halls of the Project
any hand truck except those equipped with rubber ties and side guards or
such other material-handling equipment as Lessor may approve. Lessee shall
not bring any other vehicles of any kind into the Building or Project.
23. Lessee shall comply with all safety, fire protection and evacuation
procedures and regulations established by Lessor or any governmental
agency.
24. Lessee assumes any and all responsibility for protecting its Premises from
theft, robbery and pilferage, which includes keeping doors locked and
other means of entry to the Premises closed.
25. Lessee's requirements will be attended to only upon appropriate
application to the Project management office by an authorized individual.
Employees of Lessor shall not perform any work or do anything outside of
their regular duties unless under special instructions from Lessor.
26. Lessor may waive any one or more of these Rules and Regulations for the
benefit of Lessee or any other Lessee, but no such waiver by Lessor shall
be construed as a waiver of such Rules and Regulations in favor of Lessee
or any other Lessee, nor prevent Lessor from thereafter enforcing any such
Rules and Regulations against any or all of the Lessees of the Project.
27. These Rules and Regulations are in addition to, and shall not be construed
to in any way modify or amend, in whole or in part, the terms, covenants,
agreements and conditions of the Lease.
28. Lessor reserves the right to make such other and reasonable Rules and
Regulations as, in its judgment, may from time to time be needed for
safety and security, for care and cleanliness of the Project and for the
preservation of good order therein. Lessee agrees to abide by all such
Rules and Regulations hereinabove stated and any additional rules and
regulations which are adopted.
29. Lessee shall be responsible for the observance of all of the foregoing
rules by Lessee's employees, agents, clients, customers, invitees and
guests.
30. Lessee shall comply with the "No Smoking" policy in all interior areas of
the building.
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RIDER TWO
ADDITIONAL LEASE PROVISIONS
1. ADDITIONAL PROVISIONS CONCERNING OPERATING EXPENSES
Notwithstanding anything to the contrary contained in the Lease, the
following items shall be excluded (or, as applicable, deducted) from the
calculation of Lessee's share (if any) of operating costs and expenses of the
Building and/or Project:
(a) The cost of repairs or other work occasioned by fire, windstorm or
other casualty or loss in excess of the insurance proceeds therefore (or, if
greater, the proceeds that would have been available had Lessor maintained the
insurance required to be maintained by Lessor pursuant to this Lease), or by the
exercise of eminent domain;
(b) Deductibles under Lessor's insurance policies in excess of $50,000.00;
(c) Costs resulting from the correction of any latent construction defects
in all or any portion of the Building or Project, or any condition with regard
to the structure and the common areas that is, as of the date of this Lease, not
in compliance with applicable laws, codes rules or regulations;
(d) Rental concessions or lease buyouts;
(e) The costs of renovating or otherwise improving or decorating, painting
or redecorating space (exclusive of common areas) for any lessee or other
occupants of the Building or Project, including, without limitation, Lessee;
(f) Depreciation of the real property;
(g) Payments of principal, interest or other payments of any kind on any
deeds to secure debt, mortgages, ground or underlying leases, or other
hypothecations for security of all or any part of the Building or Project by
Lessor;
(h) Rents payable in connection with any ground or underlying lease of all
or any portion of the Building or Project;
(i) Lessor's general overhead and any other expense not directly related
to the Building or Project (other than the management fee referred to in
paragraph 9(c) above);
(j) All items, services and/or goods for which Lessee or any other lessee,
occupant, person or other party is obligated to reimburse Lessor or to pay third
parties;
(k) Advertising and promotional expenses with respect to leasing space in
or selling the Building or Project;
(l) Brokerage, legal and professional fees expended by Lessor in
connection with negotiating and entering into any leases and any related
instruments (including, without limitation, guaranties, surrender agreements,
leasing amendments and consents to assignment or subletting) with any lessee or
other occupant of any portion of the Building or Project, and the enforcement of
any such instruments; or which are expended or incurred by Lessor in connection
with the negotiation and entering of sale, ground lease, financing, partnership
or similar transactions pertaining to the Building, Project, or any portion
thereof, and/or to Lessor or an interest in Lessor, including without
limitation, promissory notes, security deeds, mortgages, ground or master
leases, purchase and sale agreements, options, and any and all similar and/or
related documents, instruments and agreements;
(m) Estate, inheritance, gift, franchise and income taxes of Lessor;
(n) Wages, salaries and other compensation paid to employees of the Lessor
who are at or above the level of Property Manager;
(o) All items that would be capitalized under generally accepted
accounting principles as of the date hereof except as expressly provided in
Section 9 of this Lease;
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(p) The cost of defending against claims in regard to the existence or
release of hazardous substances or materials at the Building or Project and
costs of any cleanup of any such hazardous substances or materials (except with
respect to those costs for which Lessee is otherwise responsible pursuant to the
express Terms of this Lease);
(q) Costs and expenses incurred in connection with compliance with or the
contesting or settlement of any claimed violation of law or requirements of law;
(r) Interest, penalties or damages incurred by Lessor for late payment of
taxes or assessments or under any agreement to which Lessor is a party by reason
of the breach or default of Lessor;
(s) Expenses incurred in connection with relocating lessee in the Building
or Project;
(t) Amounts received by Lessor through proceeds of insurance to the extent
the proceeds are compensation for expenses which were previously included in
Building operating costs charged to lessees;
(u) Costs related to public transportation, transit or van pools, unless
required by an appropriate government or quasi-government authority or as a
result of the activities of Lessee; and
(v) All other items for which Lessee or any other lessee, occupant or
other party compensates Lessor, so that no duplication of payments by Lessee or
to Lessor shall occur.
2. ASSIGNMENT AND SUBLETTING BY LESSEE
Lessor hereby consents to an assignment of this Lease or a subletting of
all or part of the Premises to (a) a parent of Lessee, the parent of such
parent, or a wholly owned subsidiary of Lessee, of such parent, or of the parent
of such parent and (b) any entity to whom Lessee sells all or substantially of
its assets provided that any such entity expressly assumes all Lessee's
obligations hereunder.
3. HAZARDOUS SUBSTANCES
To the best of Lessor's knowledge, after reasonable inquiry, there are no
hazardous wastes or substances in the soil or groundwater of the real property
on which the building is located and Lessor has not disposed of or approved any
disposal by any other party of any hazardous wastes or substances on or from the
Building.
4. NOTICE
Any notice required to be given to Lessee shall be sent via facsimile,
overnight express mail or U.S. mail, postage prepaid, addressed as follows:
ICOS Corporation
00000 00xx Xxxxxx XX
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Facilities Manager
Fax: (000) 000-0000
Notices shall be effective upon receipt.
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