1. BASIC LEASE TERMS
a. DATE OF LEASE: August 14, 2001
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b. TENANT: Helix BioMedix, Inc., a Deleware corporation
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Trade Name: Helix BioMedix, Inc.
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Address (Leased Premises): 00000 00xx Xxxxxx XX, Xxxxx 000,
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Bothell, WA 98021
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Building/Unit: H/148 Address (For Notices): 00000 00xx Xxxxxx
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SE, Suite 148, Bothell, WA 98021
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c. LANDLORD: Teachers Insurance & Annuity Association of
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America, Inc.,
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Address (For Notices): 00000 00xx Xxxxxx XX, Xxxxx 000,
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Bothell, WA 98021
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with a copy to such other place as Landlord may from time to
time designate by notice to Tenant.
d. TENANT'S USE OF PREMISES: Office, warehouse and lab space for
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company specializing in the research
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and development of biopharmaceutical
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products involving lytic peptides.
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e. PREMISES AREA: An agreed 3,038 Rentable Square Feet
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f. PROJECT AREA: An agreed 444,999 Rentable Square Feet
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g. TERM OF LEASE: This Lease shall commence on September 1, 2001
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or such earlier or later date as is provided in Section 3 (the
"Commencement Date"), and shall terminate on the last day of
the forty-eighth (48th) full calendar month after the
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Commencement Date (the "Expiration Date").
h. BASE MONTHLY RENT (months refer to period through the
applicable full calendar month):
Commencement Date - Month 12 $3,463.00
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Month 13 - Month 24 $3,910.00
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Month 25 - Month 36 $4,106.00
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Month 37 - Month 48 $4,311.00
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i. PREPAID RENT (for months in addition to first month's rent): $ N/A
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j. SECURITY DEPOSIT: $ 4,311.00 NON-REFUNDABLE CLEANING FEE:$430.00.
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k. BROKER(S): Tenant's Broker Xx Xxxxx; Xxxxxxxxx Group ;
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Landlord's Broker Xxxxx Xxxxxxxx; CB Xxxxxxx Xxxxx
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l. GUARANTOR(S): NA
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m. EXHIBITS:
Exhibit A - The Premises
Exhibit B - The Project
Exhibit C - Premises Condition and Work Letter Agreement
[if applicable]
Exhibit D - Rules and Regulations
Exhibit E - Tenant Sign Criteria
Exhibit F - Letter of Credit
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2. PREMISES/COMMON AREAS/PROJECT.
a. Premises. Landlord leases to Tenant the premises described in Section 1
and in Exhibit A (the "Premises"), located in this project described on
Exhibit B (the "Project"). By entry on the Premises, Xxxxxx acknowledges
that it has examined the Premises and accepts the Premises in their present
condition, subject to any Landlord's Work required under this Lease.
Landlord's Work shall consist of such work, if any, as is specifically
identified as Landlord's responsibility under Exhibit C. Unless otherwise
identified in written notice from Tenant to Landlord prior to the dates
specified below, Landlord's Work shall be deemed approved by Tenant in all
respects on the earlier of (a) the date Tenant commences construction or
installation of any Tenant's Work, or (b) the date Tenant begins to move
its personal property into the Premises. Tenant represents and warrants
that it agrees with the square footage specified for the Premises and the
Project in Section 1 and will not hereafter challenge such determination
and agreement.
b. Common Areas. As used in this Lease, "Common Areas" shall mean all
portions of the Project not leased or demised for lease to specific
tenants. During the Lease Term, Tenant and its licensees, invitees,
customers and employees shall have the non-exclusive right to use the
public portions of the Common Areas, including all parking areas,
landscaped areas, entrances, lobbies, elevators, stairs, corridors, and
public restrooms in common with Landlord, other Project tenants and their
respective licensees, invitees, customers and employees. Landlord shall at
all times have exclusive control and management of the Common Areas and no
diminution thereof shall be deemed a constructive or actual eviction or
entitle Tenant to compensation or a reduction or abatement of rent.
Landlord in its discretion may increase, decrease or change the number,
locations and dimensions of any Common Areas and other improvements shown
on Exhibit A which are not within the Premises. c. Project. Landlord
reserves the right in its sole discretion to modify or alter the
configuration or number of buildings in the Project, provided only that
upon such modification or alteration, the Project Area as set forth in
Section 1(f) shall be adjusted to reflect such modification or alteration.
3. TERM. The Commencement Date listed in Section l of this Lease represents an
estimate of the Commencement Date. This Lease shall commence on the
estimated Commencement Date if tenant improvement work required of Landlord
pursuant to this Lease ("Landlord's Work") is substantially completed (as
that term is used in the construction industry) by such date, but otherwise
the Commencement Date shall be first to occur of the following events (i)
the date on which Landlord notifies Tenant that Landlord's Work is
substantially complete, (ii) the date on which Tenant takes possession or
commences beneficial occupancy of the Premises, or (iii) if substantial
completion of Landlord's Work is delayed due to Tenant's failure to perform
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its obligations under this Lease, then the date determined by Landlord as
the date upon which Xxxxxxxx's Work would have been substantially
completed, but for Tenant's failure to perform. If this Commencement Date
is later than the Section 1 Commencement Date, this Lease shall not be void
or voidable, nor shall Landlord be liable to Tenant for any loss or damage
resulting therefrom. Landlord shall confirm the Commencement Date by
written notice to Tenant. This Lease shall be for a term ("Lease Term")
beginning on the Commencement Date and ending on the Expiration Date,
unless extended or sooner terminated in accordance with the terms of this
Lease. All provisions of this Lease, other than those relating to payment
of Base Monthly Rent and Additional Rent, shall become effective on the
date that Tenant or its officers, agents, employees or contractors is first
present on the Premises for inspection, construction or move in purposes.
4. RENT
a. Base Monthly Rent. Tenant shall pay Landlord monthly base rent in the
initial amount in Section 1 which shall be payable monthly in advance on
the first day of each and every calendar month ("Base Monthly Rent")
provided, however, the first month's Base Monthly Rent is due and payable
upon execution of this Lease. If the term of this Lease contains any rental
abatement period, Tenant hereby agrees that if Tenant breaches the Lease
and fails to cure such breach within the applicable cure period, if any,
and/or abandons the Premises before the end of the Lease term, or if
Tenant's right to possession is terminated by Landlord because of Tenant's
breach of the Lease, the rental abatement period shall be deemed
extinguished, and there shall be immediately due from Tenant to Landlord,
in addition to any damages otherwise due Landlord under the terms and
conditions of the Lease, Base Monthly Rent prorated for the entirety of the
rental abatement period at the average Base Monthly Rent for the Lease,
plus any and all other charges (such as Expenses) that were abated during
such rental abatement period.
For purposes of Section 467 of the Internal Revenue Code, the parties
to this Lease hereby agree to allocate the stated Rents, provided herein,
to the periods which correspond to the actual Rent payments as provided
under the terms and conditions of this agreement.
b. Expenses. The purpose of this Section 4(b) is to ensure that Tenant
bears a share of all Expenses related to the use, maintenance, ownership,
repair or replacement, and insurance of the Project. Accordingly, beginning
on the date Tenant takes possession of the Premises, Tenant shall each
month pay to Landlord one-twelfth (1/12) of Tenant's Share of Expenses
related to the Project. As used in this Lease, "Tenant's Share" shall mean
the Premises Area, as defined in Section 1(e), divided by the Project Area,
as defined in Section 1(f), and "Tenant's Share of Expenses" shall mean the
total Expenses for the Project for the applicable calendar year multiplied
by Xxxxxx's Share. Landlord may specially allocate individual expenses
where and in the manner necessary, in Xxxxxxxx's discretion, to
appropriately reflect the consumption of the expense or service. For
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example where some but not all premises in the Project have HVAC, Landlord
may reallocate Project Expenses for HVAC to all premises utilizing HVAC to
be apportioned on a per square foot basis, or could allocate to each
premises utilizing HVAC the cost of maintaining that space's individual
unit. In the event the average occupancy level of the Project for any year
is less than ninety five percent (95%), the actual Expenses for such year
shall be proportionately adjusted to reflect those costs which Landlord
estimates would have been incurred, had the Project been ninety five
percent (95%) occupied during such year.
1) Expenses Defined. The term "Expenses" shall mean all costs and
expenses of the ownership, operation, maintenance, repair or replacement,
and insurance of the Project, including without limitation, the following
costs:
(a) All supplies, materials, labor, equipment, and utilities used
in or related to the operation and maintenance of the Project,
(b) All maintenance, janitorial, legal, accounting, insurance,
service agreement and management (including on-site management
office) costs related to the Project;
(c) All maintenance, replacement and repair costs relating to the
areas within or around the Project, including, without
limitation, air conditioning systems, sidewalks, landscaping,
service areas, driveways, parking Areas (including resurfacing
and restriping parking areas), walkways, building exteriors
(including painting), signs and directories, repairing and
replacing roofs, walls, etc. These costs may be included either
based on actual expenditures or the use of an accounting reserve
based on past cost experience for the Project.
(d) Amortization (along with reasonable financing charges) of
capital additions or improvements made to the Project which may
be required by any government authority or which will improve the
operating efficiency of the Project (provided, however, that the
amount of such amortization for improvements not mandated by
government authority shall not exceed in any year the amount of
costs reasonably determined by Landlord in its sole discretion to
have been saved by the expenditure either through the reduction
or minimization of increases which would have otherwise
occurred).
(e) Real Property Taxes including all taxes, assessments (general
and special) and other impositions or charges which may be taxed,
charged, levied, assessed or imposed upon all or any portion of
or in relation to the Project or any portion thereof, any
leasehold estate in the Premises or measured by Rent from the
Premises, including any increase caused by the transfer, sale or
encumbrance of the Project or any
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portion thereof. "Real Property Taxes" shall also include any
form of assessment, levy, penalty, charge or tax (other than
estate, inheritance, net income, or franchise taxes) imposed by
any authority having a direct or indirect power to tax or charge,
including, without limitation, any city, county, state federal or
any improvement or other district, whether such tax is (1)
determined by the value of the Project or the Rent or other sums
payable under this Lease; (2) upon or with respect to any legal
or equitable interest of Landlord in the Project or any part
thereof; (3) upon this transaction or any document to which
Tenant is a party creating a transfer in any interest in the
Project, (4) in lieu of or as a direct substitute in whole or in
part of or in addition to any real property taxes on the Project,
(5) based on any parking spaces or parking facilities provided in
the Project, 6) in consideration for services, such as police
protection, fire protection, street, sidewalk and roadway
maintenance, refuse removal or other services that may be
provided by any governmental or quasi-governmental agency from
time to time which were formerly provided without charge or with
less charge to property owners or occupants, or (7) otherwise
based on the operation of the Project (such as transit,
carpooling or environmental facilities.
(f) Landlord agrees that Expenses as defined in Section 4(b)
shall not include leasing commissions; payments of principal and
interest on any mortgages, deeds of trust or other encumbrances
upon the Project; depreciation of the capital cost of capital
additions or improvements except as provided at 4(b)(1)(d);
Landlord's executive salaries, management fees in excess of
market rates; costs resulting from defective design or
construction of the Project; costs incurred in connection with
entering into new leases; or costs of disputes under existing
leases. In no event shall Expenses include any charge for which
Landlord receives reimbursement from insurance or from another
Tenant, nor shall any item of Expense be counted more than once,
nor shall Landlord collect more than one hundred percent (100%)
of Expenses.
2) Annual Estimate of Expenses. When Xxxxxx takes possession of the
Premises, Landlord shall estimate Tenant's Share of Expenses for the
remainder of the calendar year, and at the commencement of each
calendar year thereafter, Landlord shall provide Tenant with an
estimate of Xxxxxx's Share of Expenses for the ensuing calendar year.
3) Monthly Payment of Expenses. Tenant shall pay to Landlord, monthly
in advance, as Additional Rent, one-twelfth (1/12) of the Annual
Estimate of
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Xxxxxx's Share of Expenses beginning on the date Tenant takes
possession of the Premises. As soon as practical following each
calendar year, Landlord shall prepare an accounting of actual Expenses
incurred during the prior calendar year and such accounting shall
reflect Tenant's Share of Expenses. If the Additional Rent paid by
Tenant under this Section 4(b)(3) during the preceding calendar year
was less than the actual amount of Tenant's Share of Expenses,
Landlord shall so notify Tenant and Tenant shall pay such amount to
Landlord within 30 days of receipt of such notice. Such amount shall
be deemed to have accrued during the prior calendar year and shall be
due and payable from Tenant even though the term of this Lease has
expired or this Lease has been terminated prior to Xxxxxx's receipt of
this notice. Tenant shall have thirty (30) days from receipt of such
notice to contest the amount due, failure to so notify Landlord shall
represent final determination of Tenant's Share of Expenses. If
Tenant's payments were greater than the actual amount, then such
overpayment shall be credited by Landlord to Tenant's Share of
Expenses due under this Section 4(b)(3).
Rent Without Offset and Late Charge. As used herein, "Rent" shall mean
all monetary sums due from Tenant to Landlord. All Base Monthly Rent
shall be paid by Tenant to Landlord without prior notice or demand in
advance on the first day of every calendar month, at the address shown
in Section 1, or such other place as landlord may designate in writing
from time to time. Whether or not so designated, all other sums due
from Tenant under this Lease shall constitute Additional Rent, payable
without prior notice or demand when specified in this Lease, but if
not specified, then within ten (10) days of demand. All Rent shall be
paid without any deduction or offset whatsoever. All Rent shall be
paid in lawful currency of the United States of America. Proration of
Rent due for any partial month shall be calculated by dividing the
number of days in the month for which Rent is due by the actual number
of days in that month and multiplying by the applicable monthly rate.
Tenant acknowledges that late payment by Tenant to Landlord of any
Rent or other sums due under this Lease will cause Landlord to incur
costs not contemplated by this Lease, the exact amount of such cost
being extremely difficult and impracticable to ascertain. Such costs
include, without limitation, processing and accounting charges and
late charges that may be imposed on Landlord by the terms of any
encumbrance or note secured by the Premises. Therefore, if any Rent or
other sum due from Tenant is not received when due, Tenant shall pay
to Landlord an additional sum equal to 10% of such overdue payment.
Landlord and Tenant hereby agree that such late charge represents a
fair and reasonable estimate of the costs that Landlord will incur by
reason of any such late payment and that the late charge is in
addition to any and all remedies available to the Landlord and that
the assessment and/or collection of the late charge shall not be
deemed a waiver of any other default. Additionally, all such
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delinquent Rent or other sums, plus this late charge, shall bear
interest at the rate of 18 percent per annum. If the interest rate
specified in this Lease is higher than the rate permitted by law, the
interest rate is hereby decreased to the maximum legal interest rate
permitted by law. Any payments of any kind returned for insufficient
funds will be subject to an additional handling charge of $25.00, and
thereafter, Landlord may require Tenant to pay all future payments of
Rent or other sums due by money order or cashier's check.
5. PREPAID RENT. Upon the execution of this Lease, Tenant shall, in addition
to the payment of the first month's Rent as set forth in Section 4(a), pay
to Landlord the prepaid Rent set forth in Section 1(i), and if Tenant is
not in default of any provisions of this Lease, such prepaid Rent shall be
applied toward Base Monthly Rent for the months set forth in Section 1(i).
Landlord's obligations with respect to the prepaid Rent are those of a
debtor and not of a trustee, and Landlord can commingle the prepaid Rent
with Landlord's general funds. Landlord shall not be required to pay Tenant
interest on the prepaid Rent. Landlord shall be entitled to immediately
endorse and cash Xxxxxx's prepaid Rent; however, such endorsement and
cashing shall not constitute Landlord's acceptance of this Lease. In the
event Landlord does not accept this Lease, Landlord shall return said
prepaid Rent.
6. DEPOSIT. Upon execution of this Lease, Tenant shall deposit a security
deposit and a cleaning fee as set forth in Section 1(j) with Landlord. If
twice within any 12 month period, late charges are assessed against Tenant
by Landlord, Landlord may, by written notice to Tenant, require Tenant to
pay Landlord an amount equal to one month's Base Rent as an increase in the
Security Deposit, which additional amount shall be due within 5 days after
Xxxxxx's receipt of the notice. If Tenant is in default, Landlord can use
the Security Deposit or any portion of it to cure the default or to
compensate Landlord for any damages sustained by Landlord resulting from
Xxxxxx's default. Upon demand, Xxxxxx shall immediately pay to Landlord a
sum equal to the portion of the Security Deposit expended or applied by
Landlord to restore the Security Deposit to its full amount. In no event
will Tenant have the right to apply any part of the Security Deposit to any
Rent or other sums due under this Lease. If Landlord transfers its interest
in the Premises, Landlord shall transfer the Security Deposit to its
successor in interest, whereupon Landlord shall be automatically released
from any liability for the return of the Security Deposit. If, at the end
of the Lease Term, Xxxxxx has fully complied with all obligations under
this Lease, then the remaining Security Deposit shall be returned to Tenant
after Landlord has verified that Tenant has fully vacated the Premises,
removed all of its property and surrendered the Premises in the condition
required under this Lease; provided that Landlord may hold back a portion
of the Security Deposit until final determination of Tenant's share of
Common Expenses, whereupon a final adjustment shall be made and any
remaining Security Deposit shall be returned to Tenant. The Non-Refundable
Cleaning Fee shall be retained by Landlord. Xxxxxxxx's obligations with
respect to the Security Deposit are those of a debtor and not of a trustee,
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and Landlord can commingle the Security Deposit with Landlord's general
funds. Landlord shall not be required to pay Tenant interest on the
deposit. Each time the Base Monthly Rent is increased, Tenant shall deposit
additional funds with Landlord sum sufficient to increase the Security
Deposit to an amount which bears the same relationship to the adjusted Base
Monthly Rent as the initial Security Deposit bore to the initial Base
Monthly Rent.
7. USE OF PREMISES AND PROJECT FACILITIES. Tenant shall use the Premises
solely for the purposes set forth in Section 1 and for no other purpose
whatsoever without obtaining the prior written consent of Landlord. Tenant
acknowledges that neither Landlord nor any agent of Landlord has made any
representation or warranty with respect to the Premises or with respect to
the suitability of the Premises or the Project for the conduct of Tenant's
business, nor has Landlord agreed to undertake any modification, alteration
or improvement to the Premises or the Project, except as provided in
writing in this Lease. Tenant acknowledges that Landlord may from time to
time, at its sole discretion, make such modifications, alterations,
deletions or improvements to the Project as Landlord may deem necessary or
desirable, without compensation or notice to Tenant. Tenant shall promptly
comply with all laws, ordinances, orders and regulations affecting the
Premises and the Project, including, without limitation, the rules and
regulations attached hereto as Exhibit D and any reasonable modifications
to these rules and regulations as Landlord may adopt from time to time.
Tenant acknowledges that, except for Landlord's obligations pursuant to
Section 13, Tenant is solely responsible for ensuring that the Premises
comply with any and all governmental regulations applicable to Tenant's
conduct of business on the Premises, and that Tenant is solely responsible
for any alterations or improvements that may be required by such
regulations, now existing or hereafter adopted. Tenant shall not do or
permit anything to be done in or about the Premises or bring or keep
anything in the Premises that will in any way increase the premiums paid by
Landlord on its insurance related to the Project or which will in any way
increase the premiums for fire or casualty insurance carried by other
tenants in the Project. Tenant will not perform any act or carry on any
practices that may injure the Premises or the Project; that may be a
nuisance or menace to other tenants in the Project; or that shall in any
way interfere with the quiet enjoyment of such other tenants. Tenant shall
not use the Premises for sleeping, washing clothes, cooking or the
preparation, manufacture or mixing of anything that might emit any
objectionable odor, noises, vibrations or lights onto such other tenants.
If sound insulation is required to muffle noise produced by Tenant on the
Premises, Tenant at its own cost shall provide all necessary insulation.
Tenant shall not do anything on the premises which will overload any
existing parking or service to the Premises. Pets and/or animals of any
type shall not be kept on the Premises.
8. HAZARDOUS SUBSTANCES; DISRUPTIVE ACTIVITIES
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a. Hazardous Substances.
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(1) Presence and Use of Hazardous Substances.
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As used in this Lease, "Hazardous Substances" shall mean anything
which may be harmful to persons or property, including, but not
limited to, materials designated as a "Hazardous Substance" pursuant
to Section 101 of the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as now or hereafter amended,
42 USC 9601, et seq., or as a Hazardous Substance, Hazardous Household
Substance, Moderate Risk Waste or Hazardous Waste under RCW
70.105.010, or which is regulated by any federal, state, or local law,
statute, ordinance or regulation pertaining to health, industrial
hygiene or the environment. Tenant shall not, without Landlord's prior
written consent, keep on or around the Premises, Common Areas or
Building, for use, disposal, treatment, generation, storage or sale,
any Hazardous Substances except such Hazardous Substances as are
commonly used in general administrative office operations. With
respect to any Hazardous Substance, Tenant shall:
(i) Comply promptly, timely, and completely with all
governmental requirements for reporting, keeping, and submitting
manifests, and obtaining and keeping current identification
numbers;
(ii) Submit to Landlord true and correct copies of all
reports, manifests, and identification numbers at the same time
as they are required to be and/or are submitted to the
appropriate governmental authorities;
(iii) Within five (5) days of Landlord's request, submit
written reports to Landlord regarding Tenant's use, storage,
treatment, transportation, generation, disposal or sale of
Hazardous Substances and provide evidence satisfactory to
Landlord of Tenant's compliance with the applicable government
regulations;
(iv) Allow Landlord or Landlord's agent or representative to
come on the premises at all times to check Tenant's compliance
with all applicable governmental regulations regarding Hazardous
Substances;
(v) Comply with minimum levels, standards or other
performance standards or requirements which may be set forth or
established for certain Hazardous Substances (if minimum
standards or levels are applicable to Hazardous Substances
present on the Premises, such levels or standards shall be
established by an on-site inspection by the appropriate
governmental authorities and shall be set forth in an addendum to
this Lease); and
(vi) Comply with all applicable governmental rules,
regulations and requirements regarding the proper and lawful use,
sale, transportation, generation, treatment, and disposal of
Hazardous Substances.
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(2) Any and all costs incurred by Landlord and associated with
Xxxxxxxx's monitoring of Tenant's compliance with this Section 8,
including Landlord's attorneys' fees and costs, shall be Additional
Rent and shall be due and payable to Landlord immediately upon demand
by Landlord.
b. Cleanup Costs, Default and Indemnification.
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(1) Tenant shall be fully and completely liable to Landlord for any
and all cleanup costs, and any and all other charges, fees, penalties
(civil and criminal) imposed by any governmental authority with
respect to Tenant's use, disposal, transportation, generation and/or
sale of Hazardous Substances, in or about the Premises, Common Areas,
or Building.
(2) Tenant shall indemnify, defend and save Landlord and Xxxxxxxx's
lender, if any, harmless from any and all of the costs, fees,
penalties and charges assessed against or imposed upon Landlord (as
well as Xxxxxxxx's and Landlord's lender's attorneys' fees and costs)
as a result of Tenant's use, disposal, transportation, generation
and/or sale of Hazardous Substances.
(3) Upon Tenant's default under this Section 8, in addition to the
rights and remedies set forth elsewhere in this Lease, Landlord shall
be entitled to the following rights and remedies:
(i) At Landlord's option, to terminate this Lease
immediately; and/or
(ii) To recover any and all damages associated with the
default, including, but not limited to cleanup costs and charges,
civil and criminal penalties and fees, loss of business and sales
by Landlord and other tenants of the Building, any and all
damages and claims asserted by third parties and Xxxxxxxx's
attorneys' fees and costs.
c. Disposal of Waste
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(1) Refuse Disposal. Tenant 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.
Tenant shall keep all incinerators, containers or other equipment used
for storage or disposal of such materials in a clean and sanitary
condition.
(2) Sewage Disposal. Tenant shall properly dispose of all
sanitary sewage and shall not use the sewage disposal system (a) for
the disposal of anything except sanitary sewage or (b) in excess of
the lesser amount (i) reasonably contemplated by the uses permitted
under this Lease or (ii) permitted by any governmental entity. Tenant
shall keep the sewage disposal system free of all obstructions and in
good operating condition.
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(3) Disposal of Other Waste. Tenant shall properly dispose of all
other waste or other matter delivered to, stored upon, located upon or
within, used on, or removed from, the Premises in such a manner that
it does not, and will not, adversely affect the (a) health or safety
of persons, wherever located, whether on the Premises or elsewhere (b)
condition, use or enjoyment of the Premises or any other real or
personal property, wherever located, whether on the Premises or
anywhere else, or (c) Premises or any of the improvements thereto or
thereon including buildings, foundations, pipes, utility lines,
landscaping or parking areas.
d. Disruptive Activities. Tenant shall not:
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(1) Produce, or permit to be produced, any intense glare, light
or heat except within an enclosed or screened area and then only in
such manner that the glare, light or heat shall not, outside the
Premises, be materially different that the light or heat from other
sources outside the Premises;
(2) Create, or permit to be created, any sound pressure level
which will interfere with the quiet enjoyment of any real property
outside the Premises, or which will create a nuisance or violate any
governmental law, rule, regulation or requirement;
(3) Create, or permit to be created, any ground vibration that is
materially discernible outside the Premises;
(4) Transmit, receive or permit to be transmitted or received,
any electromagnetic, microwave or other radiation which is harmful or
hazardous to any person or property in, or about the Project; or
(5) Create, or permit to be created, any noxious odor that is
disruptive to the business operations of any other tenant in the
Project.
9. SIGNAGE. All signing shall comply with rules and regulations set forth by
Landlord as may be modified from time to time. Current rules and
regulations relating to signs are described on Exhibit E. Tenant shall
place no window covering (e.g., shades, blinds, curtains, drapes, screens,
or tinting materials), stickers, signs, lettering, banners or advertising
or display material on or near exterior windows or doors if such materials
are visible from the exterior of the Premises, without Landlord's prior
written consent. Similarly, Tenant may not install any alarm boxes, foil
protection tape or other security equipment on the Premises without
Landlord's prior written consent. Any material violating this provision may
be destroyed by Landlord without compensation to Tenant.
10. PERSONAL PROPERTY TAXES. Tenant shall pay before delinquency all taxes,
assessments, license fees and public charges levied, assessed or imposed
upon its business operations as well as upon all trade fixtures, leasehold
improvements, merchandise and other personal property in or about the
Premises.
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11. PARKING. Landlord grants to Tenant and Tenant's customers, suppliers,
employees and invitees, a non-exclusive license to use the designated
parking areas in the Project for the use of motor vehicles during the term
of this Lease. Landlord reserves the right at any time to grant similar
non-exclusive use to other tenants, to promulgate rules and regulations
relating to the use of such parking areas, including reasonable
restrictions on parking by tenants and employees, to designate specific
spaces for the use of any tenant, to make changes in the parking layout
from time to time, and to establish reasonable time limits on parking.
Overnight parking is prohibited and any vehicle violating this or any other
vehicle regulation adopted by Landlord is subject to removal at the owner's
expense.
12. UTILITIES; SERVICES. Landlord shall furnish the Premises with electricity
for office use, including lighting and low power usage for office machines
and water for restroom facilities. From 7:00 a.m. to 6:00 p.m. on weekdays
and 9:00 a.m. to 1:00 p.m. on Saturday, excluding legal holidays ("Normal
Business Hours"), Landlord shall furnish the Premises with heat and air
conditioning services as required, in Landlord's judgment, for the
comfortable use and occupancy of the Premises. Landlord shall provide
further services (such as janitorial services and trash disposal) if
Landlord and Tenant specifically agree to such additional services and
identify such services with specificity on Exhibit F hereto. If requested
by Tenant, Landlord shall furnish heat and air conditioning services at
times other than Normal Business Hours, and supplements to Exhibit F
special services, and Tenant shall pay for such additional services as
additional rent at such rates as Landlord may establish from time to time.
The mechanical system is designed to accommodate heating loads generated by
the types and quantities of lights and equipment commonly found in suburban
office park general administrative offices. Before installing lights and
equipment in the Premises which in the aggregate exceed such amount (e.g.
devoting the Premises to high density computer work station operations) or
require a voltage other than 120 volts single phase, Tenant shall obtain
the written permission of Landlord. Landlord may refuse to grant such
permission unless Xxxxxx agrees to pay Landlord's costs of installing any
supplementary air conditioning or electrical systems required by such
equipment or lights. In addition, Tenant shall pay Landlord in advance, as
additional rent, on the first day of each month during the Term, the amount
estimated by Landlord as the cost of furnishing electricity for the
operation of such equipment or lights and the amount estimated by Landlord
as the cost of operating and maintaining supplementary air conditioning
units necessitated by Tenant's use of such equipment or lights. Landlord
shall be entitled to install and operate, at Tenant's cost, a
monitoring/metering system in the Premises to measure the added demands on
electricity and the HVAC systems resulting from such equipment and lights,
and from Tenant's HVAC requirements during other than Normal Business
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Hours. Tenant shall comply with Xxxxxxxx's instruction for the use of
drapes, blinds and thermostats. Tenant acknowledges that Landlord shall
have sole control over the determination of what utility providers serve
the Project, and Landlord shall have no obligation to give access or
easement rights or otherwise allow onto the Project any utility providers
except those approved by Landlord in its discretion. . If, for any reason,
Landlord permits Tenant to purchase utility services from a provider other
than Landlord's designated compan(ies), such provider shall be considered a
contractor of Tenant and Tenant shall indemnify defend and hold Landlord
harmless from such provider's acts and omissions while in, or in connection
with their services to, the Building or Project in accordance with the
terms and conditions of Article 15. In addition, Tenant shall allow
Landlord to purchase such utility service from Tenant's provider at
Tenant's rate or at such lower rate as can be negotiated by the aggregation
of Landlord's tenants' requirements for such utility.
Except for the costs of above-building standard and/or after-hours
services, which shall be paid directly by Tenant, the costs of all
utilities and services provided pursuant to this Section 12 shall be
Expenses allocated to Tenant as part of Tenant's Share of Expenses pursuant
to Section 4(b). above. Tenant shall pay when due and directly to the
service provider any telephone or other services metered, chargeable or
provided to the Premises and not charged as part of Tenant's Share of
Expenses.
Landlord does not warrant that any utilities or services will be free from
interruption including by reason of accident, repairs, alterations or
improvements and including by reason of computer programming weaknesses
known generally as the "Year 2000" problem. No utility interruption shall
be deemed an eviction or disturbance of Tenant, or render Landlord liable
to Tenant for damages, or relieve Tenant from the full and complete
performance of all of Tenant's obligations under this Lease.
Landlord shall provide such security for the Project as it deems
appropriate. During other than Normal Business Hours, Landlord may restrict
access to the Project in accordance with the Project's security system.
Landlord shall not be liable to Tenant for injury to its agents, employees,
customers or invitees, or for losses due to theft or burglary, or for
damages done by unauthorized persons in the Project.
Landlord shall provide two keys for the corridor door entering the
Premises, and additional keys at a charge by Landlord on an order signed by
Tenant. All such keys shall remain the property of Landlord. No additional
locks shall be allowed on any door of the Premises without Landlord's
written permission, and Tenant shall not make, or permit to be made, any
duplicate keys, except those furnished by Landlord. Upon termination of
this Lease, Xxxxxx shall surrender to Landlord all keys to the Premises.
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13. MAINTENANCE. Landlord shall maintain, in good condition, the structural
parts of the Premises, which shall include only the foundations, bearing
and exterior walls (excluding glass), subflooring and roof (excluding
skylights), the unexposed electrical, plumbing and sewerage systems,
including those portions of the systems lying outside the Premises, gutters
and downspouts on the Building and the heating, ventilating and air
conditioning system servicing the Premises; provided, however, the cost of
all such maintenance shall be considered "Expenses" for purposes of Section
4(b). Except as provided above, Tenant shall maintain and repair the
Premises in good condition, including, without limitation, maintaining and
repairing all walls, storefronts, floors, ceilings, interior and exterior
doors, exterior and interior windows and fixtures and interior plumbing as
well as damage caused by Tenant, its agents, employees or invitees. Upon
expiration or termination of this Lease, Xxxxxx shall surrender the
Premises to Landlord in the same condition as existed at the commencement
of the term, except for reasonable wear and tear or damage caused by fire
or other casualty for which Xxxxxxxx has received all funds necessary for
restoration of the Premises from insurance proceeds.
14. ALTERATIONS. Tenant shall not make any alterations to the Premises, or to
the Project, including any changes to the existing landscaping, without
Landlord's prior written consent. If Landlord gives its consent to
alterations, Landlord may post notices in accordance with the laws of the
state in which the premises are located. Any alterations made shall remain
on and be surrendered with the Premises upon expiration or termination of
this Lease, except that Landlord may, within 30 days before or 30 days
after expiration of the term, elect to require Tenant to remove any
alterations which Tenant may have made to the Premises. If Landlord so
elects, at its own cost Tenant shall restore the Premises to the condition
designated by Landlord in its election, before the last day of the term or
within 30 days after notice of its election is given, whichever is later.
Should Landlord consent in writing to Tenant's alteration of the Premises,
Tenant shall contract with a contractor approved by Landlord for the
construction of such alterations, shall secure all appropriate governmental
approvals and permits, and shall complete such alterations with due
diligence in compliance with plans and specifications approved by Landlord.
All such construction shall be performed in a manner which will not
interfere with the quiet enjoyment of other tenants of the Project. Tenant
shall pay all costs for such construction and shall keep the Premises and
the Project free and clear of all mechanics' liens which may result from
construction by Tenant. Tenant shall not use any portion of the common
areas in connection with an alteration without the prior written consent of
Landlord.
15. RELEASE AND INDEMNITY.
a. Indemnity. Tenant shall indemnify, defend (using legal counsel
acceptable to Landlord) and save Landlord and its property manager harmless
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from all claims, suits, losses, damages, fines, penalties, liabilities and
expenses (including Landlord's personnel and overhead costs and attorneys
fees and other costs incurred in connection with claims, regardless of
whether such claims involve litigation) resulting from any actual or
alleged injury (including death) of any person or from any actual or
alleged loss of or damage to, any property arising out of or in connection
with (i) Tenant's occupation, use or improvement of the Premises, or that
of its employees, agents or contractors, (ii) Tenant's breach of its
obligations hereunder, or (iii) any act or omission of Tenant or any
subtenant, licensee, assignee or concessionaire of Tenant, or of any
officer, agent, employee, guest or invitee of Tenant, or of any such entity
in or about the Premises. Xxxxxx agrees that the foregoing indemnity
specifically covers actions brought by its own employees. This indemnity
with respect to acts or omissions during the term of this Lease shall
survive termination or expiration of this Lease. The foregoing indemnity is
specifically and expressly intended to, constitute a waiver of Tenant's
immunity under Washington's Industrial Insurance Act, RCW Title 51, to the
extent necessary to provide Landlord with a full and complete indemnity
from claims made by Tenant and its employees, to the extent provided
herein. Tenant shall promptly notify Landlord of casualties or accidents
occurring in or about the Premises. XXXXXXXX AND TENANT ACKNOWLEDGE THAT
THE INDEMNIFICATION PROVISIONS OF SECTION 8 AND THIS SECTION 15 WERE
SPECIFICALLY NEGOTIATED AND AGREED UPON BY THEM.
b. Release. Tenant hereby fully and completely waives and releases all
claims against Landlord for any losses or other damages sustained by Tenant
or any person claiming through Tenant resulting from any accident or
occurrence in or upon the Premises, including but not limited to: any
defect in or failure of Project equipment; any failure to make repairs; any
defect, failure, surge in, or interruption of Project facilities or
services; any defect in or failure of Common Areas; broken glass; water
leakage; the collapse of any Building component; or any act, omission or
negligence of co-tenants, licensees or any other persons or occupants of
the Building, provided only that the release contained in this Section
15(b) shall not apply to claims for actual damage to persons or property
(excluding consequential damages such as lost profits) resulting directly
from Xxxxxxxx's breach of its express obligations under this Lease which
Landlord has not cured within a reasonable time after receipt of written
notice of such breach from Tenant. Notwithstanding any other provision of
this Lease, and to the fullest extent permitted by law, Tenant hereby
agrees that Landlord shall not be liable for injury to Tenant's business or
any loss of income therefrom, whether such injury or loss results from
conditions arising upon the Premises or the Project, or from other sources
or places including, without limitation, any interruption of services and
utilities or any casualty, or from any cause whatsoever, including,
Landlord's negligence, and regardless of whether the cause of such injury
or loss or the means of repairing the same is inaccessible to Landlord or
Tenant. Tenant may elect, at its sole cost and expense, to obtain business
interruption insurance with respect to such potential injury or loss.
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c. Limitation on Indemnity. In compliance with RCW 4.24.115 as in effect on
the date of this Lease, all provisions of this Lease pursuant to which
Landlord or Tenant (the "Indemnitor") agrees to indemnify the other (the
"Indemnitee") against liability for damages arising out of bodily injury to
Persons or damage to property relative to the construction, alteration,
repair, addition to, subtraction from, improvement to, or maintenance of,
any building, road, or other structure, project, development, or
improvement attached to real estate, including the Premises, (i) shall not
apply to damages caused by or resulting from the sole negligence of the
Indemnitee, its agents or employees, and (ii) to the extent caused by or
resulting from the concurrent negligence of (a) the Indemnitee or the
Indemnitee's agents or employees, and (b) the Indemnitor or the
Indemnitor's agents or employees, shall apply only to the extent of the
Indemnitor's negligence; PROVIDED, HOWEVER, the limitations on indemnity
set forth in this Section shall automatically and without further act by
either Landlord or Tenant be deemed amended so as to remove any of the
restrictions contained in this Section no longer required by then
applicable law.
d. Definitions. As used in any Section establishing indemnity or release of
Landlord, "Landlord" shall include Landlord, its partners, officers,
agents, employees and contractors, and "Tenant" shall include Tenant and
any person or entity claiming through Tenant.
16. INSURANCE. Tenant shall, throughout the term of this Lease and any renewal
hereof, at its own expense, keep and maintain in full force and effect, a
policy of commercial general liability (occurrence form) insurance,
including contractual liability (including Tenant's indemnification
obligations under this Lease) insuring Tenant's activities upon, in or
about the Premises or the Project, against claims of bodily injury or death
or property damage or loss with a combined single limit of not less than
One Million Dollars ($1,000,000) per occurrence and excess/umbrella
liability insurance policy with minimum limits of not less than Five
Million Dollars ($5,000,000), with such increases in limits as Landlord may
from time to time require consistent with insurance requirements of
institutional landlords in similar projects in the area. If Tenant
manufactures on the Premises consumer goods using any materials supplied by
Landlord (including but not limited to water supplied as part of utilities
to the Premises), Tenant's insurance shall include products liability
insurance in the amounts specified for the commercial general liability
insurance.
Tenant shall further, throughout the term of this Lease and any renewal
thereof, at its own expense, keep and maintain in full force and effect,
what is commonly referred to as "Special Cause of Loss" or "Special"
coverage insurance (excluding earthquake and flood) on tenant's leasehold
improvements in an amount equal to one hundred percent (100%) of the
replacement value thereof with a coinsurance waiver. The proceeds from any
such policy shall be used by Tenant for the restoration of Tenant's
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improvements or alterations. As used in this Lease, "tenant's leasehold
improvements" shall mean any alterations, additions or improvements
installed in or about the Premises by or with Landlord's permission or
otherwise permitted by this Lease, whether or not the cost thereof was paid
for by Xxxxxx.
All insurance required to be provided by Tenant under this Lease: (a) shall
be issued by Insurance companies authorized to do business in the state in
which the premises are located with a financial rating of at least an A+X
status as rated in the most recent edition of Best's Insurance Reports; (b)
shall be issued as a primary policy; shall be on an occurrence basis; (c)
name Landlord and Landlord's property manager as additional insured; and
(d) shall contain an endorsement requiring at least 30 days prior written
notice of cancellation to Landlord and Landlord's lender, before
cancellation or change in coverage, scope or amount of any policy. Tenant
shall deliver a certificate or copy of such policy together with evidence
of payment of all current premiums to Landlord within 30 days of execution
of this Lease and at the time of all renewals thereof. If Tenant fails at
any time to maintain the insurance required by this Lease, and fails to
cure such default within five (5) business days of written notice from
Landlord then, in addition to all other remedies available under this Lease
and applicable law, Landlord may purchase such insurance on Tenant's behalf
and the cost of such insurance shall be Additional Rent due within ten (10)
days of written invoice from Landlord to Tenant.
Tenant hereby releases Landlord, and waives its entire right of recovery
for loss or damage to property located within or constituting a part or all
of the Building or the Project to the extent that the loss or damage is
covered by (a) Tenant's insurance, or (b) the insurance Tenant is required
to carry under this Article 16, whichever is greater. This waiver applies
whether or not the loss is due to the negligent acts or omissions of
Landlord or Tenant, or their respective officers, directors, employees,
agents, contractors, or invitees. Tenant shall have its insurers endorse
the applicable insurance policies to reflect the foregoing waiver of
claims, provided however, that the endorsement shall not be required if the
applicable policy of insurance permits the named insured to waive rights of
subrogation on a blanket basis, in which case the blanket waiver shall be
acceptable
17. DESTRUCTION. If during the term, the Premises or Project are more than 10%
destroyed from any cause, or rendered inaccessible or unusable from any
cause, Landlord may, in its sole discretion, terminate this Lease by
delivery of notice to Tenant within 30 days of such event without
compensation to Tenant. If in Landlord's estimation, the Premises cannot be
restored within 90 days following such destruction, the Landlord shall
notify Tenant and Tenant may terminate this Lease by delivery of notice to
Landlord within 30 days of receipt of Landlord's notice. If neither
Landlord nor Tenant terminates this Lease as provided above, then Landlord
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shall commence to restore the Premises in compliance with then existing
laws and shall complete such restoration with due diligence. In such event,
this Lease shall remain in full force and effect, but there shall be an
abatement of Base Monthly Rent and Xxxxxx's Share of Expenses between the
date of destruction and the date of completion of restoration, based on the
extent to which destruction interferes with Xxxxxx's use of the Premises.
18. CONDEMNATION.
a. Taking. If all of the Premises are taken by Eminent Domain, this Lease
shall terminate as of the date Tenant is required to vacate the Premises
and all Base and Additional Rent shall be paid to that date. The term
"Eminent Domain" shall include the taking or damaging of property by,
through or under any governmental or statutory authority, and any purchase
or acquisition in lieu thereof, whether the damaging or taking is by
government or any other person. If, in the reasonable judgment of Landlord,
a taking of any part of the Premises by Eminent Domain renders the
remainder thereof unusable for the business of Tenant (or the cost of
restoration of the Premises is not commercially reasonable), the Lease may,
at the option of either party, be terminated by written notice given to the
other party not more than thirty (30) days after Landlord gives Tenant
written notice of the taking, and such termination shall be effective as of
the date when Tenant is required to vacate the portion of the Premises so
taken. If this Lease is so terminated, all Base and Additional Rent shall
be paid to the date of termination. Whenever any portion of the Premises is
taken by Eminent Domain and this Lease is not terminated, Landlord shall at
its expense proceed with all reasonable dispatch to restore, to the extent
of available proceeds and to the extent it is reasonably prudent to do so,
the remainder of the Premises to the condition they were in immediately
prior to such taking, and Tenant shall at its expense proceed with all
reasonable dispatch to restore its personal property and all improvements
made by it to the Premises to the same condition they were in immediately
prior to such taking. The Base and Additional Rent payable hereunder shall
be reduced from the date Tenant is required to partially vacate the
Premises in the same proportion that the Rentable Area taken bears to the
total Rentable Area of the Premises prior to taking.
b. Award. Landlord reserves all right to the entire damage award or payment
for any taking by Eminent Domain, and Tenant waives all claim whatsoever
against Landlord for damages for termination of its leasehold interest in
the Premises or for interference with its business. Tenant hereby grants
and assigns to Landlord any right Tenant may now have or hereafter acquire
to such damages and agrees to execute and deliver such further instruments
of assignment as Landlord may from time to time request. Tenant shall,
however, have the right to claim from the condemning authority all
compensation that may be recoverable by Tenant on account of any loss
incurred by Tenant in moving Tenant's merchandise, furniture, trade
fixtures and equipment, provided, however, that Tenant may claim such
damages only if they are awarded separately in the eminent domain
proceeding and not out of or as part of Landlord's damages.
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19. ASSIGNMENT OR SUBLEASE. Tenant shall not assign or encumber its interest in
this Lease or the Premises or sublease all or any part of the Premises or
allow any other person or entity (except Tenant's authorized
representatives, employees, invitees, or guests) to occupy or use all or
any part of the Premises without first obtaining Landlord's consent which
Landlord may withhold or condition in its sole discretion. No assignment or
sublease shall release Tenant from the obligation to perform all
obligations under this Lease. Any assignment, encumbrance or sublease
without Landlord's written consent shall be voidable and at Landlord's
election, shall constitute a default. If Tenant is a partnership, a
withdrawal or change, voluntary, involuntary or by operation of law of any
partner, or the dissolution of the partnership, shall be deemed a voluntary
assignment. If Tenant consists of more than one person, a purported
assignment, voluntary or involuntary or by operation of law from one person
to the other shall be deemed a voluntary assignment. If Tenant is a
corporation, any dissolution, merger, consolidation or other reorganization
of Tenant, or sale or other transfer of a controlling percentage of the
capital stock of Tenant, or the sale of at least 25% of the value of the
assets of Tenant shall be deemed a voluntary assignment. The phrase
"controlling percentage" means ownership of and right to vote stock
possessing at least 25% of the total combined voting power of all classes
of Tenant's capital stock issued, outstanding and entitled to vote for
election of directors. This Section 19 shall not apply to corporations the
stock of which is traded through an exchange or over the counter. All rent
received by Tenant from its subtenants in excess of the Rent payable by
Tenant to Landlord under this Lease shall be paid to Landlord, or any sums
to be paid by an assignee to Tenant in consideration of the assignment of
this Lease shall be paid to Landlord. In lieu of granting consent to any
proposed Transfer for which Xxxxxx is required to obtain Landlord's
consent, Landlord reserves the right to terminate this Lease or, in the
case of subletting of less than all the Premises, to terminate this Lease
with respect to such portion of the Premises, as of the proposed effective
date of such Transfer, in which event Landlord may enter into the
relationship of landlord and tenant with such proposed Transferee.
Notwithstanding the foregoing, Xxxxxxxx's recapture right shall not apply
to a sublease if (a) the term of the sublease ends at least 1 year prior to
the end of the term of the Lease and contains no extension rights, and (b)
the total area subleased, including the sublease at issue, will be less
than 80% of the Premises. If Tenant requests Xxxxxxxx to consent to a
proposed assignment or subletting, Tenant shall pay to Landlord, whether or
not consent is ultimately given, $100 or Landlord's reasonable attorney's
fees incurred in connection with such request, whichever is greater.
No interest of Tenant in this Lease shall be assignable by involuntary
assignment through operation of law (including without limitation the
transfer of this Lease by testacy or intestacy). Each of the following acts
shall be considered an involuntary assignment: (a) if Tenant is or becomes
bankrupt or insolvent, makes an assignment for the benefit of creditors, or
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institutes proceedings under the Bankruptcy Act in which Tenant is the
bankrupt; or if Tenant is a partnership or consists of more than one person
or entity, if any partner of the partnership or other person or entity is
or becomes bankrupt or insolvent, or makes an assignment for the benefit of
creditors; or (b) if a writ of attachment or execution is levied on this
Lease; or (c) if in any proceeding or action to which Tenant is a party, a
receiver is appointed with authority to take possession of the Premises. An
involuntary assignment shall constitute a default by Tenant and Landlord
shall have the right to elect to terminate this Lease, in which case this
Lease shall not be treated as an asset of Tenant.
20. DEFAULT. The occurrence of any of the following shall constitute a default
by Tenant: (a) a failure to pay Rent or other charge when due; (b)
abandonment and vacation of the Premises (failure to occupy and operate the
Premises for ten consecutive days shall be conclusively deemed an
abandonment and vacation); or (c) failure to perform any other provision of
this Lease.
21. LANDLORD'S REMEDIES. Landlord shall have the following remedies if Tenant
is in default. (These remedies are not exclusive; they are cumulative and
in addition to any remedies now or later allowed by law): Landlord may
terminate Tenant's right to possession of the Premises at any time. No act
by Landlord other than giving notice to Tenant shall terminate this Lease.
Acts of maintenance, efforts to relet the Premises, or the appointment of a
receiver on Landlord's initiative to protect Xxxxxxxx's interest under this
Lease shall not constitute a termination of Tenant's right to possession.
Upon termination of Tenant's right to possession, Landlord has the right to
recover from Tenant: (1) the worth of the unpaid Rent that had been earned
at the time of termination of Tenant's right to possession; (2) the worth
of the amount of the unpaid Rent that would have been earned after the date
of termination of Tenant's right to possession less the amount that Tenant
proves Landlord should be able to earn during such period net of all
releasing costs; (3) any other amount, including but not limited to,
expenses incurred to relet the Premises, court, attorney and collection
costs, necessary to compensate Landlord for all detriment caused by
Xxxxxx's default. "The Worth," as used for Item (1) in this Paragraph 21 is
to be computed by allowing interest at the rate of 18 percent per annum. If
the interest rate specified in this Lease is higher than the rate permitted
by law, the interest rate is hereby decreased to the maximum legal interest
rate permitted by law. "The Worth" as used for Item (2) in this Paragraph
21 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 of
Tenant's right of possession.
22. ENTRY ON PREMISES. Landlord and its authorized representatives shall have
the right to enter the Premises at all reasonable times for any of the
following purposes: (a) to determine whether the Premises are in good
condition and whether Tenant is complying with its obligations under this
Lease; (b) to do any necessary maintenance and to make any restoration to
the Premises or the Project that Landlord has the right or obligation to
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perform; (c) to post "for sale" signs at any time during the term, to post
"for rent" or "for lease" signs during the last 90 days of the term, or
during any period while Tenant is in default; (d) to show the Premises to
prospective brokers, agents, buyers, tenants or persons interested in
leasing or purchasing the Premises, at any time during the term; or (e) to
repair, maintain or improve the Project and to erect scaffolding and
protective barricades around and about the Premises but not so as to
prevent entry to the Premises and to do any other act or thing necessary
for the safety or preservation of the Premises or the Project. Landlord
shall not be liable in any manner for any inconvenience, disturbance, loss
of business, nuisance or other damage arising out of Landlord's entry onto
the Premises as provided in this Section 22. Tenant shall not be entitled
to an abatement or reduction of Rent if Landlord exercises any rights
reserved in this Section 22. Landlord shall conduct his activities on the
Premises as provided herein in a commercially reasonable manner so as to
limit inconvenience, annoyance or disturbance to Tenant to the maximum
extent practicable. For each of these purposes, Landlord shall at all times
have and retain a key with which to unlock all the doors in, upon and about
the Premises, excluding Xxxxxx's vaults and safes. Tenant shall not alter
any lock or install a new or additional lock or bolt on any door of the
Premises without prior written consent of Landlord. If Landlord gives its
consent, Tenant shall furnish Landlord with a key for any such lock.
23. SUBORDINATION; ESTOPPEL CERTIFICATE.
Subordination. Without the necessity of any additional document being
executed by Tenant for the purpose of effecting a subordination, and at the
election of Landlord or any mortgagee or any beneficiary of a Deed of Trust
with a lien on the Project or any ground lessor with respect to the
Project, this Lease shall be subject and subordinate at all times to (a)
all ground leases or underlying leases which may now exist or hereafter be
executed affecting the Project, and (b) the lien of any mortgage or deed of
trust which may now exist or hereafter be executed in any amount for which
the Project, ground leases or underlying leases, or Landlord's interest or
estate in any of said items is specified as security. In the event that any
ground lease or underlying lease terminates for any reason or any mortgage
or Deed of Trust is foreclosed or a conveyance in lieu of foreclosure is
made for any reason, Tenant shall, notwithstanding any subordination,
attorn to and become the Tenant of the successor in interest to Landlord,
at the option of such successor in interest. Tenant covenants and agrees to
execute and deliver, upon demand by Xxxxxxxx and in the form requested by
Landlord any additional documents evidencing the priority or subordination
of this Lease with respect to any such ground lease or underlying leases or
the lien of any such mortgage or Deed of Trust. Tenant hereby irrevocably
appoints Landlord as attorney-in-fact of Tenant to execute, deliver and
record any such document in the name and on behalf of Xxxxxx.
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b. Estoppel Certificate. Tenant shall, within 10 days of demand, execute and
deliver to Landlord a written statement certifying: (i) the commencement
and the expiration date of the Term; (ii) the amount of Base Rent and the
date to which it has been paid; (iii) that this Lease is in full force and
effect and has not been assigned or amended in any way (or specifying the
date and terms of each agreement so affecting this Lease) and that no part
of the Premises has been sublet (or to the extent such is not the case, a
copy of any sublease); (iv) that Landlord is not in default under this
Lease (or if such is not the case, the extent and nature of such default);
(v) on the date of such certification, there are no existing defenses or
claims which Tenant has against Landlord (or if such is not the case, the
extent and nature of such defenses or claims); (vi) the amount of the
Security Deposit held by Landlord; and (vii) any other fact or
representation that a mortgagee or purchaser may reasonably request. It is
intended that any such statement shall be binding upon Tenant and may be
relied upon by a prospective purchaser or mortgagee. If Tenant fails to
respond within 10 days of receipt of a written request by Landlord
therefor, (a) Tenant shall be deemed to have given a certificate as above
provided, without modification, and shall be conclusively deemed to have
admitted the accuracy of any information supplied by Landlord to a
prospective purchaser or mortgagee, and (b) Landlord may impose a fee of
$100 per day for each day of delay in providing the statement by Xxxxxx
after the 10 day period.
24. NOTICE. Any notice, demand or request required hereunder shall be given in
writing to the party's facsimile number or address set forth in Section 1
hereof by any of the following means: (a) personal service; (b) electronic
communication, whether by telex, telegram or facsimile with electronic
confirmation; (c) overnight courier; or (d) registered or certified, first
class mail, return receipt requested. Such addresses may be changed by
notice to the other parties given in the same manner as above provided. Any
notice, demand or request sent pursuant to either subsection (a) or (b)
hereof shall be deemed received upon such personal service or upon dispatch
by electronic means with electronic confirmation of receipt. Any notice,
demand or request sent pursuant to subsection (c) hereof shall be deemed
received on the business day immediately following deposit with the
overnight courier and, if sent pursuant to subsection (d), shall be deemed
received forty-eight (48) hours following deposit in the U.S. mail. Tenant
hereby appoints as its agent to receive the service of all dispossessory or
distraint proceedings and notices thereunder the person in charge of or
occupying the Premises at the time, and, if no person shall be in charge of
occupying the same, then such service may be made by attaching the same on
the main entrance of the Premises.
25. WAIVER. No delay or omission in the exercise of any right or remedy by
Landlord shall impair such right or remedy or be construed as a waiver. No
act or conduct of Landlord, including without limitation, acceptance of the
keys to the Premises, shall constitute an acceptance of the surrender of
the Premises by Tenant before the expiration of the term. Only written
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notice from Landlord to Tenant shall constitute acceptance of the surrender
of the Premises and accomplish termination of the Lease. Xxxxxxxx's consent
to or approval of any act by Tenant requiring Landlord's consent or
approval shall not be deemed to waive or render unnecessary Landlord's
consent to or approval of any subsequent act by Xxxxxx. Any waiver by
Landlord of any default must be in writing and shall not be a waiver of any
other default concerning the same or any other provision of the Lease.
TENANT SPECIFICALLY ACKNOWLEDGES AND AGREES THAT, WHERE TENANT HAS RECEIVED
A NOTICE TO CURE DEFAULT (WHETHER RENT OR NON-RENT), NO ACCEPTANCE BY
LANDLORD OF RENT SHALL BE DEEMED A WAIVER OF SUCH NOTICE, AND, INCLUDING
BUT WITHOUT LIMITATION, NO ACCEPTANCE BY LANDLORD OF PARTIAL RENT SHALL BE
DEEMED TO WAIVE OR CURE ANY RENT DEFAULT. LANDLORD MAY, IN ITS DISCRETION,
AFTER RECEIPT OF PARTIAL PAYMENT OF RENT, REFUND SAME AND CONTINUE ANY
PENDING ACTION TO COLLECT THE FULL AMOUNT DUE, OR MAY MODIFY ITS DEMAND TO
THE UNPAID PORTION. IN EITHER EVENT THE DEFAULT SHALL BE DEEMED UNCURED
UNTIL THE FULL AMOUNT IS PAID IN GOOD FUNDS.
26. SURRENDER OF PREMISES; HOLDING OVER. Upon expiration of the term, Xxxxxx
shall surrender to Landlord the Premises and all Tenant improvements and
alterations in good condition, except for ordinary wear and tear and
alterations Tenant has the right or is obligated to remove under the
provisions of Section 14 herein. Tenant shall remove all personal property
including, without limitation, all data and phone wires, wallpaper,
paneling and other decorative improvements or fixtures and shall perform
all restoration made necessary by the removal of any alterations or
Tenant's personal property before the expiration of the term, including for
example, restoring all wall surfaces to their condition prior to the
commencement of this Lease. Landlord can elect to retain or dispose of in
any manner Xxxxxx's personal property not removed from the Premises by
Tenant prior to the expiration of the term. Tenant waives all claims
against Landlord for any damage to Tenant resulting from Xxxxxxxx's
retention or disposition of Xxxxxx's personal property. Tenant shall be
liable to Landlord for Landlord's cost for storage, removal or disposal of
Tenant's personal property.
If Xxxxxx, with Xxxxxxxx's consent, remains in possession of the Premises
after expiration or termination of the term, or after the date in any
notice given by Landlord to Tenant terminating this Lease, such possession
by Tenant shall be deemed to be a month-to-month tenancy terminable as
provided under Washington law, by either party. All provisions of this
Lease, except those pertaining to term and Rent, shall apply to the
month-to-month tenancy. During any holdover term, Tenant shall pay Base
Monthly Rent in an amount equal to 150% of Base Monthly Rent for the last
full calendar month during the regular term plus 100% of Tenant's share of
Expenses pursuant to Section 4(b)(3). If Xxxxxx fails to surrender
possession of the Premises upon termination or expiration of this Lease and
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if Xxxxxx does not obtain Xxxxxxxx's written consent to Xxxxxx's continued
occupancy, then Tenant shall be deemed a trespasser and shall be liable to
Landlord for all damages sustained by Landlord as a result thereof,
together with Base Rate at a rate double the Latest Rate.
27. LIMITATION OF LANDLORD'S LIABILITY. In consideration of the benefits
accruing hereunder, Xxxxxx agrees that, in the event of any actual or
alleged failure, breach or default of this Lease by Landlord, Landlord's
liability under this Lease shall be limited to, and Tenant shall look only
to Landlord interest in the Project and the rents and proceeds thereof.
28. BUILDING PLANNING. If Landlord requires the Premises for use in conjunction
with another suite or for other reasons connected with the Project planning
program, upon notifying Tenant in writing, Landlord shall have the right to
move Tenant to other space in the Project that is substantially the same in
size, configuration and tenant improvements, such move (including
out-of-pocket ancillary costs such as reprinting of stationary) to be at
Landlord's sole cost and expense. Upon such move, the terms and conditions
of the original Lease shall remain in full force and effect, save and
excepting that a revised Exhibit "A" shall become part of this Lease and
shall reflect the location of the new space and Section 1 of this Lease
shall be amended to include and state all correct data as to the new space.
29. MISCELLANEOUS PROVISIONS.
a. Time of Essence. Time is of the essence of each provision of this Lease.
b. Successor. This Lease shall be binding on and inure to the benefit of
the parties and their successors, except as provided in Section 19 herein.
c. Landlord's Consent. Any consent required by Landlord under this Lease
must be granted in writing and may be withheld or conditioned by Landlord
in its sole and absolute discretion.
d. Commissions. Each party represents that it has not had dealings with any
real estate broker, finder or other person with respect to this Lease in
any manner, except for the broker(s) identified in Section 1, who shall be
compensated by Landlord. Landlord and Tenant recognize that it is possible
that they may hereafter make additional agreements regarding further
extension or renewal of this Lease or a new lease or leases for all or one
or more parts of the Premises or other space in the Project for a term or
terms commencing after the Commencement Date of this Lease. Landlord and
Xxxxxx recognize that it is also possible that they may hereafter modify
this Lease to add additional space or to substitute space as part of the
Premises. If any such additional agreements, new leases or modifications to
this Lease are made, Landlord shall not have any obligation to pay any
compensation to any real estate broker or to any other third person engaged
by Tenant to render services to Tenant in connection with negotiating such
matters, regardless of whether under the circumstances such person is or is
not regarded by the law as an agent of Landlord.
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e. Other Charges. If either party commences any litigation against the
other party or files an appeal of a decision arising out of or in
connection with the Lease, the prevailing party shall be entitled to
recover from the other party reasonable attorney's fees and costs of suit.
If Landlord employs a collection agency to recover delinquent charges,
Xxxxxx agrees to pay all collection agency and attorneys' fees charged to
Landlord in addition to Rent, late charges, interest and other sums payable
under this Lease. Tenant shall pay a charge of $75 to Landlord for
preparation of a demand for delinquent Rent.
f. Force Majeure. Landlord shall not be deemed in default hereof nor liable
for damages arising from its failure to perform its duties or obligations
hereunder if such is due to causes beyond its reasonable control,
including, but not limited to, acts of God, acts of civil or military
authorities, fires, floods, windstorms, earthquakes, strikes or labor
disturbances, civil commotion, delays in transportation, governmental
delays or war.
g. Rules and Regulations. Tenant shall faithfully observe and comply with
the "Rules and Regulations", a copy of which is attached hereto, and all
reasonable and nondiscriminatory modifications thereof and additions
thereto from time to time put into effect by Xxxxxxxx. Landlord shall not
be responsible to Tenant for the violation or non-performance by any other
tenant or occupant of the building or Project of said tenant or occupant's
lease or of any of said Rules and Regulations.
h. Xxxxxxxx's Successors. In the event of a sale or conveyance by Landlord
of the Project, the same shall operate to release Landlord from any
liability under this Lease, and in such event Landlord's successor in
interest shall be solely responsible for all obligations of Landlord under
this Lease.
i. Interpretation. This Lease shall be construed and interpreted in
accordance with the laws of the state in which the premises are located.
This Lease constitutes the entire agreement between the parties with
respect to the Premises and the Project, except for such guarantees or
modifications as may be executed in writing by the parties from time to
time. When required by the context of this Lease, the singular shall
include the plural, and the masculine shall include the feminine and/or
neuter. "Party" shall mean Landlord or Tenant. If more than one person or
entity constitutes Landlord or Tenant, the obligations imposed upon that
party shall be joint and several. The enforceability, invalidity or
illegality of any provision shall not render the other provisions
unenforceable, invalid or illegal.
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j. Prior Understandings. Tenant acknowledges that neither Xxxxxxxx nor
anyone representing Landlord has made statements of any kind whatsoever on
which Xxxxxx has relied in entering into this Lease. Tenant further
acknowledges that Tenant has relied solely on its independent investigation
and its own business judgment in entering into this Lease. Xxxxxxxx and
Xxxxxx agree that: this Lease supersedes all prior and contemporaneous
understandings and agreement; the provisions of this Lease are intended by
them as the final expression of their agreement; this Lease constitutes the
complete and exclusive statement of its terms; and no extrinsic evidence
whatsoever may be introduced in any judicial proceeding involving this
Lease. No provision of this Lease may be amended except by an agreement in
writing signed by the parties hereto or their respective successors in
interest, whether or not such amendment is supported by new consideration.
k. Authority. If Tenant is a corporation, each individual executing this
Lease on behalf of said corporation represents and warrants that he/she is
duly authorized to execute and deliver this Lease on behalf of said
corporation. Concurrently with the execution of this Lease, Tenant shall
deliver to Landlord a certified copy of a resolution of the Board of
Directors of said corporation authorizing the execution of this Lease. If
Xxxxxx is a partnership, each individual executing this Lease on behalf of
said partnership represents and warrants that he/she is duly authorized to
execute and deliver this Lease on behalf of said partnership and that this
Lease is binding upon said partnership in accordance with its terms, and
concurrently with execution of this Lease, Tenant shall deliver to Landlord
such evidence of authorization as Landlord may require. If Tenant is a
marital community, or a member of a marital community, both members of the
marital community shall execute this Lease. Where Tenant is comprised of
more than one person or entity, all covenants, agreements and obligations
of Tenant hereunder shall be the joint and several covenants, agreements
and obligations of each person or entity comprising
l. Clean Air Act. Tenant acknowledges that Landlord has not made any
portion of the Premises or the Building accessible for smoking in
compliance with WAC 000-00-00000. If Tenant wishes to make any portion of
the Premises accessible for smoking, Tenant shall make all improvements
necessary to comply with all applicable governmental rules and regulations.
Tenant acknowledges that the indemnity contained in Section 15 of the Lease
includes, but is not limited to claims based on the presence of tobacco
smoke as a result of the activities of Tenant, its employees, agents, or
guests.
30. COMMENCEMENT DATE Commencement of this Lease and occupancy by Xxxxxx is
conditioned upon the execution of the Lease Termination Agreement, as
prepared and approved by Landlord, between Teachers Insurance & Annuity
Association of America, Inc., and Kaizen Software for the subject premises.
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31. LETTER OF CREDIT. As security for Tenant's performance of its obligations
under the Lease, and to enter into this Lease, Tenant shall, upon full
execution of this Lease, provide the Landlord an irrevocable letter of
credit in the amount of Twenty Four Thousand Six Hundred Fifty Four Dollars
($24,654.00) for the Lease Term, in form and content attached hereto as
exhibit F, securing Tenant's full and timely performance of all obligations
under this Lease. If Tenant is in default beyond the Section 20 cure
period, Landlord may draw on the Letter of Credit in the same manner and to
the same extent as Landlord may use the security deposit or any portion
thereof, all as set forth in Section 6, except that any stay of action
against Tenant shall not effect Xxxxxxxx's right to draw on the letter of
credit.
Landlord: Teachers Insurance & Annuity Association
Of America, Inc.
By
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Its
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Tenant: Helix BioMedix, Inc., a Delaware corporation
By: /s/ X. Xxxxxxx Xxxxxx
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Mr. X. Xxxxxxx Xxxxxx
Its President
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