EXHIBIT 10.29
OLIVE WAY BUILDING LEASE
METROPOLITAN FEDERAL SAVINGS AND LOAN ASSOCIATION
LANDLORD
TARGETED GENETICS CORPORATION
TENANT
TABLE OF CONTENTS
1. FUNDAMENTAL LEASE PROVISIONS 1
2. PREMISES 2
3. USE 2
4. TERM 3
4.01 Term and Commencement Date 3
4.02 Option to Extend 3
5. POSSESSION FOR TENANT'S WORK/DELAY IN COMMENCEMENT/
EARLY POSSESSION 4
6. BASE RENT 4
6.01 Initial Term Rent 5
6.02 First Extension Term Rent 5
6.03 Second Extension Term Rent 5
6.04 Third Extension Term Rent 5
6.05 Determination of Market Rent 5
7. SECURITY DEPOSIT 6
8. OPERATING EXPENSES 6
8.01 Operating Expenses 6
8.02 Tenant's Proportionate Share 8
9. BUILDING SERVICES AND MAINTENANCE 10
9.01 Office Services 10
9.2 Landlord's Utility, Maintenance and Repair
Obligations 10
9.3 Tenant's Utility. Maintenance and Repair
Obligations 10
10. CONDITION OF PREMISES 11
11. TENANT'S IMPROVEMENTS 11
11.01 Landlord's Work 11
11.02 Tenant's Work 11
11.03 Initial Tenant Improvement Allowance 12
11.04 First Extension Term Refurbishment Allowance 12
11.05 Expansion Space Tenant Improvement Allowances 13
11.06 Reimbursement of Glazing Expenses 13
11.07 Amortization of Tenant Improvements 13
11.08 Tenant's Construction and Approvals 13
12. ALTERATIONS AND ADDITIONS 13
13. LIENS 14
14. ASSIGNMENT, SUBLETTING OR SUBSTITUTION OF TENANTS 14
14.01 Assignment or Subletting by Tenant 14
14.02 Assignment by Landlord 16
15. INSURANCE AND INDEMNIFICATION 16
15.01 Liability Insurance 16
15.02 Property Insurance 16
15.03 Insurance Policies 17
15.04 Waiver of Subrogation 17
15.05 Indemnity 17
15.06 Exemption of Landlord from Liability 18
16. PERSONAL PROPERTY TAXES 18
17. DAMAGE OR DESTRUCTION OF PREMISES 18
17.01 Partial Damage--Insured 18
17.02 Partial Damage--Uninsured 19
17.03 Damage Near End of Term 19
17.04 Total Destruction 19
17.05 Abatement of Rent; Xxxxxx's Remedies 19
18. CONDEMNATION 19
19. DEFAULTS; REMEDIES 20
19.01 Defaults 20
19.02 Remedies 21
19.03 Default by Landlord 21
19.04 Late Charges 22
20. ESTOPPEL CERTIFICATES 22
21. BROKER 22
22. SUBORDINATION 23
23. GENERAL PROVISIONS 23
23.01 Severability 23
23.02 Time of Essence 24
23.03 Incorporation of Prior Agreements; Amendments 24
23.04 Notices 24
23.05 Waiver 24
23.06 Recording 24
23.07 Holding Over 24
23.08 Covenants and Conditions 24
23.09 Binding Effect 25
23.10 Common Areas/Access/and Parking 25
23.11 Corporate Authority 25
23.12 Sale of Building 25
23.13 Attorneys' Fees 26
23.14 Landlord's Access 26
23.15 Signs and Auctions 26
23.16 Ouiet Possession 26
23.17 Building Rules and Regulations 26
23.18 Relationship of Parties 26
23.19 Landlord's Representations 26
23.20 Annual Financial Statements 26
23.21 Riders 27
24. SPECIAL PROVISIONS 27
24.01 Medical and Hazardous Waste and Materials 27
24.02 Right of First Opportunity to Lease 28
24.03 Limitations in New Leases 29
24.04 Expansion Space Undertaking 29
24.05 Lease Cancellation 29
24.06 Storage Space 30
EXHIBIT A Legal Description
EXHIBIT B Premises Description
EXHIBIT C Tenant's Plans and Specifications
EXHIBIT D Xxxxxxxx's Work
EXHIBIT E Tenant Construction and Approvals
EXHIBIT F Rules and Regulations
OLIVE WAY BUILDING LEASE
THIS LEASE, dated for reference purposes November 20TH, 1992, is made between
Metropolitan Federal Savings and Loan Association of Seattle, a federally
chartered savings and loan association ("Landlord"), and Targeted Genetics
Corporation, a Washington corporation ("Tenant").
1. FUNDAMENTAL LEASE PROVISIONS
In the event of any conflict between a fundamental lease provision and the
provisions in the balance of the Lease, the latter controls.
LANDLORD:
Metropolitan Federal Savings and Loan Association of Seattle, a federally
chartered savings and Loan Association of savings and loan association
whose business address is 0000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000-
0000. (Fax No. 000-000-0000.)
TENANT:
Targeted Genetics Corporation, a Washington corporation whose business
address is 0000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000. (Fax No. 206-
000-0000.)
PREMISES:
Office and laboratory space comprising approximately 25,300 square feet of
rentable space in the Olive Way Building located at 0000 Xxxxx Xxx, Xxxxx
000, Xxxxxxx, Xxxxxxxxxx, and legally described on Exhibit A attached
hereto and incorporated herein by this reference. The exact square footage
of rentable space contained in the Premises will be determined following
completion of Tenant's Final Plans (as defined in Exhibit E) in accordance
with the procedure described in Article 2 below.
TERM:
The term of this Lease shall be for a period of six (6) years as set forth
in Article 4.
OPTIONS TO EXTEND:
Three (3) five (5) year options to extend the term of this Lease as
provided in Article 4.
MONTHLY BASE RENT:
The initial monthly Base Rent will be based on an annual base rent of
Eleven and 25/100 dollars ($11.25) per rentable square foot, and shall be
increased in accordance with Article 6. Assuming total rentable square
feet of Twenty Five Thousand Three Hundred, the initial monthly Base Rent
will be Twenty-Three Thousand Seven Hundred Eighteen and 75/100 Dollars
($23,718.75). Said Base Rent is subject to adjustment pending the
determination of the exact square footage of space in accordance with
Article 2 below.
1
RENT INCREASES:
The Base Rent shall be increased in accordance with the Schedule contained
in Article 6.
OPERATION COSTS/ADDITIONAL RENT:
Tenant shall pay additional rent equal to Tenant's Proportionate Share of
increases in Building operating costs over those costs incurred during the
Base Year (Article 8).
BASE YEAR:
1993 calendar year.
SECURITY DEPOSIT:
Twenty-Three Thousand Seven Hundred Eighteen and 7S/100 dollars
($23,718.75) (Article 7).
USE:
The Premises may be used by Tenant for the purposes described in Article
3.
2. PREMISES
Landlord leases to Tenant and Tenant leases from Landlord for the term, at the
rental, and upon all of the conditions in this Lease, space situated in the
Olive Way Building, located at 0000 Xxxxx Xxx, Xxxxx 000, Xxxxxxx, Xxxxxxxxxx
(the "Building's) as described in Exhibit B attached hereto and made a part of
this Lease (the "Premises"). The Premises comprise approximately 25,300 rentable
square feet of space in the Building, and include a nonexclusive right to use
the common areas of the Building. The exact square footage of rentable space
contained in the Premises will be determined following completion of Tenant's
Final Plans (as defined on Exhibit E attached hereto). The square footage will
be based on BOMA standards of office building measurement. Upon the
determination of the square footage of rentable area, Landlord and Tenant shall
execute a certificate setting forth such area, and based upon such area, such
certificate shall state the initial monthly Base Rent payable under this Lease,
Tenant's Proportionate Share under this Lease, and the Tenant Improvement
Allowance payable by Landlord under this Lease.
3. USE
Tenant shall use the Premises for general office and research laboratory
purposes. Such uses by Tenant, or any Subtenant, will not involve the use of
primates or large animals on the Premises. Tenant shall not use or permit the
Premises to be used for any other purpose without the Landlord's prior written
consent, which consent shall not be unreasonably withheld or delayed. Tenant
shall not do or permit any act in or about the Premises nor bring or keep
anything in the Premises which will
increase the existing rate of any fire or other insurance upon the Building or
its contents, or cause cancellation of any insurance policy covering any part or
all of the Building or any of its contents, or which will unreasonably interfere
with the rights of other tenants or occupants of the Building. Tenant will not
use or allow the Premises to be used for any improper, immoral, or unlawful
purpose, and it will not commit or allow any nuisance or waste in or about the
Premises. Tenant shall, at its sole cost and expense, promptly comply with all
laws, statutes, ordinances and governmental rules or regulations and with the
requirements of any board of fire insurance underwriters or other similar bodies
relating to, or affecting the condition, use or occupancy of the Premises.
4. TERM
4.01 Term and Commencement Date. The term of this Lease is six (6) years,
commencing on April 1, 1993, or ten (10) days following the issuance of a
temporary or permanent Certificate of Occupancy for the Premises, which ever
shall occur sooner (the "Commencement Date"). In no event will the Commencement
Date be later than April 1, 1993 and Xxxxxx agrees to commence paying rent on
that date even if the tenant improvements being constructed by Tenant are not
completed by that date. Notwithstanding the previous sentence, in no event will
the Commencement Date be earlier than the date that Landlord has completed
Landlord's Work (as defined in Exhibit D attached), except that if the
installation of the elevator by Landlord is the only element of Landlord's Work
not completed, then the Lease term shall commence, and the Landlord shall have
until April 15, 1993 to complete the installation of the elevator. In the event
the elevator is not installed and operating by April 15, 1993, rent shall be
abated for each day after April 15, 1993 until the elevator is installed. Tenant
agrees to use its reasonable efforts to complete its improvements and occupy the
Premises as soon as possible. If the Commencement Date is the first day of a
calendar month, the Lease term will begin on that date. If the Commencement Date
is other than the first day of a month, then the period of time between the
Commencement Date and the first day of the following month shall be added to the
term of this Lease, and rent prorated over that period shall be paid by Xxxxxx.
Notwithstanding any other provision of this Lease, Tenant shall have the right,
by written notice delivered to Landlord on or prior to December 15, 1992, to
terminate this Lease on December 15, 1992 if Tenant has not received the Master
Use Permit necessary for the construction of Tenant's Improvements and the use
of the Premises by Tenant as a research facility in accordance with the Final
Plans.
4.02 Options to Extend. Landlord grants to Tenant the option to extend
this Lease for three (3) five (5) year terms on the same terms and conditions of
this Lease, provided that Base Rent payable under Article 6 of this Lease shall
be increased in accordance with the terms of Article 6.
Tenant's right to extend the Lease in accordance with the immediately preceding
paragraph is subject to the following conditions:
a. Tenant shall have delivered to Landlord, at least nine (9) month's prior to
the expiration of the existing initial term or renewed term of this Lease,
written notice stating Xxxxxx's exercise of the extension option; and
b. Tenant shall not be in material default under this Lease at the time said
notice is given nor anytime thereafter prior to or on the date of
commencement of the extension term; and
c. This Lease shall be in full force and effect at the time said notice is
given and at all times thereafter prior to or on the date of commencement
of the extension term; and
Upon receipt of Xxxxxx's notice of extension, Landlord shall prepare an
amendment modifying the Lease for execution by Xxxxxx and Landlord.
5. POSSESSION FOR TENANT'S WORK/DELAY IN COMMENCEMENT/EARLY POSSESSION
Landlord shall make the Premises available to Tenant for the purpose of
commencing construction of tenant improvements within fifteen (15) days of the
date of execution of this Lease by Landlord and Tenant. Tenant's access to the
Premises shall be shared with Landlord so as to permit Landlord to accomplish
Landlord's Work where Landlord's Work affects the Premises. Xxxxxx's occupancy
of the Premises prior to the Commencement Date for the purpose of construction
of tenant improvements shall not subject Tenant to the payment of rent under
this Lease, but such occupancy shall be subject to the provisions of this Lease
not pertaining to rent.
If Landlord does not deliver exclusive possession of the Premises (including
installation of the elevator) for any reason at the Commencement Date, this
Lease is not void or voidable, and the Landlord is not liable to the Tenant for
any resulting loss or damage. The expiration date of the Lease term will be
extended accordingly, however all rent shall be abated during the period between
the Commencement Date and the Landlord's delivery of possession. In the event
Landlord does not deliver exclusive possession of the Premises within six (6)
months of April 1, 1993, Tenant shall be entitled to terminate this Lease by
written notice delivered to Landlord within fifteen (15) days of the end of the
six (6) month period and Tenant's security deposit shall be returned to Tenant
within thirty (30) days.
6. BASE RENT
All rent payable under this Lease is payable without deduction or offset on the
first day of the month. Rent is payable in lawful money of the United States to
Landlord at its address stated herein or at such other address as Landlord shall
direct Tenant in writing.
The rent payable under this Lease shall be on a per rentable square foot basis
as determined pursuant to Article 2 above.
The rent payable by Tenant for the Premises does not include any of the
following: janitorial service; any water and sewer charges (which will be
separately metered/calculated and
charged to Tenant); any electricity charges (including electricity utilized by
the HVAC system located in or directly servicing Tenant's Premises) (which will
be separately metered calculated and charged to Tenant); nor does the Base Rent
include any increases in Operating Expenses (defined in paragraph 8.01) beyond
the Base Year.
6.01 Initial Term Rent Tenant will, without prior notice or demand, pay
to Landlord a Base Rent in accordance with the following schedule during the
initial term of this
Lease:
LEASE YEAR ANNUAL BASE RENT PER RENTABLE FOOT
1 $11.25
2 $11.25
3 $12.75
4 $13.25
5 $13.75
6 $14.25
6.02 First Extension Term Rent. If the Tenant has exercised Tenant's option to
extend the term of this Lease for the first extension period (years 7 through
11), Tenant will, without prior notice or demand, pay to Landlord a Base Rent in
accordance with the following schedule during said extension term of this Lease:
LEASE YEAR ANNUAL BASE RENT PER RENTABLE FOOT
7 $15.00
8 $15.50
9 $16.00
10 $16.50
11 $17.00
6.03 Second Extension Term Rent. The Base Rent for the second extension term
shall be adjusted to a base rent which has the same ratio to the Base Rent on
the Commencement Date ($11.25) as the applicable Consumer Price Index (the
"Index" as defined in Paragraph 6.05 below) published most recently preceding
the second extension term has to the Index published most recently before the
Commencement Date. However, the annual Base Rent for the second extension term
shall in no event be less than $17.00 per rentable square foot.
6.04 Third Extension Term Rent. The Base Rent for the third extension term
shall be adjusted to a base rent which has the same ratio to the Base Rent on
the Commencement Date ($11.25) as the applicable Consumer Price Index (the
"Index" as defined in Paragraph 6.05 below) published most recently preceding
the third extension term has to the Index published most recently before the
Commencement Date. However, the annual Base Rent for the third extension term
shall in no event be less than the greater of $17.00 per rentable square foot,
or the rent during the year immediately preceeding the third extension term.
6.05 Definition of Index. As used in this Lease, the term "Index" shall mean
the Consumer Price index, All Items, All Urban Consumers, U.S. City Average,
(1982--1984 = 100),
published by the United States Department of Labor, Bureau of Labor Statistics.
In the event the Index is no longer available or in use, the parties agree to
use the index which replaces said Index or, if there is no such replacement, to
use a generally accepted index which most closely measures the same items as the
original Index.
7. SECURITY DEPOSIT
Upon execution of this Lease, Tenant will pay Landlord Twenty-Three Thousand
Seven Hundred Eighteen and 7S/100 ($23,718.75) as a security deposit. Any
security deposit shall be held by Landlord in an interest bearing account with
interest to accrue to the Tenant as security for the performance by Tenant of
its covenants and obligations under this Lease. It is not an advance payment of
rent or a measure of damages in case of default by Xxxxxx. Landlord may without
prejudice to any other remedy use the security deposit as necessary to make good
any arrearages of rent or any other damage, expense, or liability caused to
Landlord by Tenant's breach or default under this Lease. Following any such use
of the security deposit, Tenant shall pay to Landlord within ten (10) days after
written demand the amount necessary to restore the security deposit to its
original amount. Upon termination of this Lease any remaining balance of the
security deposit shall be returned to Tenant within thirty (30) days after
Tenant ceases occupancy of the premises. In the event Tenant has not been in
default during the first two years of the lease term, said deposit shall be
returned in full to Tenant within thirty (30) days after the expiration of the
second year of the lease term.
8. OPERATING EXPENSES
8.01 .Operating Expenses. Subject to Tenant's payment of its Proportionate
Share of Operating Expenses, Landlord shall provide for those Building operation
and maintenance items delineated in Article 9. Operating Expenses are all the
direct costs of operation and maintenance of the Building determined by standard
accounting practices, including without limitation: common area water and sewer
charges; all utilities charges for utilities not separately metered to or
calculated for the Premises (but not specifically relating to other tenant
spaces) and taxes; common area janitorial services; window cleaning; snow, trash
or debris removal; gardening and landscape maintenance; direct labor and
accounting costs incurred in the management of the Building; management fees;
common area air-conditioning and heating; elevator maintenance; supplies,
materials, equipment, and tools, and maintenance costs and upkeep of all parking
and common areas, all property taxes and assessments, rent taxes, personal
property taxes, gross receipts taxes, and insurance premiums on the Building.
Landlord shall use all reasonable efforts to minimize operating expenses.
"Operating Expenses" shall not include any income, franchise, corporate, estate
or inheritance tax of Landlord, or any assessment upon the Building (including,
but not limited to, the initial cost of developing the Building) that Landlord
elects to be placed upon the Building in the form of an assessment or tax
payable over a term of years (e.g., sewers initially installed and connection of
utilities) or any tax or assessment on rent or any other charge payable by
Tenant under this Lease. In addition, notwithstanding anything in this
Lease to the contrary, the following costs, charges and expenses of Landlord
shall not be included among the Operating Expenses charges for which Xxxxxx is
responsible under this Lease:
(a) leasing commissions and other costs of seeking to rent space;
(b) managing agents' fees or commissions in excess of the rates then
customarily charged for property management for buildings of like
class and character to the Building;
(c) executives' salaries above the grade of property manager;
(d) expenditures for capital improvements, except those which under
generally applied real estate practice are expensed or regarded as
deferred expenses and except for capital expenditures required by law,
in either of which cases the cost thereof shall be included in
Operating Expenses for the year in which such costs are incurred and
subsequent years, and shall be amortized over an appropriate period on
a straight--line basis;
(e) amounts received by Landlord through proceeds of insurance to the
extent such proceeds are compensation for expenses that were
previously included in the Operating Expenses hereunder;
(f) cost of repairs or replacements incurred by reason of fire or other
casualty to the extent Landlord is compensated therefor through
proceeds of insurance, or caused by the exercise of the right of
eminent domain;
(g) consulting fees, marketing fees, advertising and promotional
expenditures;
(h) legal fees for disputes with tenants and legal and auditing fees,
other than legal and auditing fees reasonably incurred in connection
with the maintenance and operation of the Premises or in connection
with the preparation of statements required pursuant to additional
rent or lease escalation provisions;
(i) costs incurred in performing work or furnishing services for
individual tenants (including Tenant) at such tenant's expense to the
extent that such work or service is in excess of any work or service
Landlord at its expense is obligated to furnish to Tenant; costs of
performing work or furnishing services for tenants other than Tenant
at Landlord's expense to the extent that such work or services are in
excess of any work or service Landlord is obligated to furnish to
Tenant at Landlord's expense;
(j) principal and interest payments on loans secured by mortgages or deeds
of trust on, or assignments of rent from, all or any portion of the
Premises;
(k) depreciation;
(1) penalties due to any violation of law by Landlord or other tenants;
(m) costs of preparing tenant space for tenant occupancy;
(n) costs of any utilities, services or capital improvements relating to
all or any portion of the Premises that were paid directly by Tenant
or any other tenant;
(o) costs allocable to properties other than the Building in which the
Premises are located in which Landlord has an interest;
(p) structural repairs or replacements; and
(q) rent payable in connection with any ground or underlying lease.
It is agreed by Tenant that in addition to Tenant's Proportionate Share of
Operating Expenses, Tenant shall be solely responsible for providing and paying
for janitorial services for the Premises; water and sewer services; electrical
services; air conditioning and heating services (including electricity
therefor); and plumbing services; as those items relate to the Premises.
Landlord will establish at its sole cost and expense separate meters for, or if
meters cannot be installed, will separately and equitably calculate the charges
for, the utilities supplied to the Premises.
8.02 Tenant's Proportionate Share. Commencing with respect to the 1994
Comparison Year (as defined below), in addition to the Base Rent payable
pursuant to Article 6, Tenant shall pay, as additional rent, Tenant's
Proportionate Share of the increase in total Operating Expenses in each
Comparison Year over the total Operating Expenses incurred by Landlord during
the Base Year. For purposes of this Lease (including any extensions), the Base
Year shall be calendar year 1993. Each succeeding year shall be a Comparison
Year.
Tenant's Proportionate Share will be determined in accordance with paragraph 2
above.
Landlord shall give to Tenant on or before the first day of June, 1994 and on or
before the first day of June of each year thereafter during the term of this
Lease, an itemized statement of the increase in rent payable by Tenant hereunder
for the preceding Comparison Year, but failure by Landlord to give such
statement by said date shall not constitute a waiver by Landlord of its right to
require an increase in rent.
For calendar year 1994, Landlord shall deliver to Tenant, no later than June 1,
1994, an estimate of the Operating Expense increase over the Base Year which
will be due for 1994. Said estimated increased amount shall be divided into
equal installments to be paid each month remaining in the calendar year
1994, commencing with the month following Xxxxxx's receipt of Landlord's
estimate, provided that payments for 1994 shall not be due for any month prior
to the month following the date which is twelve (12) months from the
Commencement Date. For example, if Xxxxxxxx's estimate is delivered in February,
1994, and the Commencement Date is April 1, 1993, the estimated annual increase
shall be divided into eight equal installments and paid each month, May through
December, 1994.
For years after 1994, upon receipt of the statement for the preceding Comparison
Year, Tenant shall pay a lump sum equal to the total amount of increase in
Operating Expenses over the Base Year, less amounts previously paid on account
thereof as estimated increases. In addition, the amount of any such increase
shall be used as the basis for an estimate of the increase due for the current
year, and that amount shall be divided into equal installments to be paid each
month remaining in the calendar year, commencing with the month following
Xxxxxx's receipt of Xxxxxxxx's estimate. For example, if Xxxxxxxx's estimate is
delivered in February, the estimated annual increase shall be divided into ten
equal installments and paid each month, March through December.
If in any Comparison Year the Tenant's share of Operating Expenses are less than
the preceding year, then upon receipt of Landlord's statement, any overpayment
made by Tenant on the monthly installment basis provided above shall be credited
towards the next monthly rent falling due and the estimated monthly installments
of Operating Expenses to be paid shall be adjusted to reflect such lower
Operating Expenses for the most recent Comparison Year.
Tenant, at reasonable times and upon reasonable notice, shall have the right to
inspect Landlord's books and records pertaining to the Building and the
determination of Operating Expenses.
Even though the term has expired and Xxxxxx has vacated the Premises, when the
final determination is made of Tenant's share of Operating Expenses for the year
in which this Lease terminates, Tenant shall immediately pay any increase due
over the estimated expenses paid and conversely any overpayment made in the
event said expenses decrease shall be immediately rebated by Landlord to Tenant.
The statements furnished to Tenant by Landlord, which shall contain such
supporting documentation as Tenant may reasonably request, shall constitute a
final determination as between Landlord and Tenant of Operating Expenses for the
periods represented thereby, unless Tenant, within 60 days after they are
furnished, shall give a notice to Landlord that it disputes their accuracy or
their appropriateness, which notice shall specify the particular respects in
which the statement is inaccurate or inappropriate. Any such dispute shall be
resolved (a) by arbitration in the Seattle, Washington area by 3 arbitrators,
each of whom shall have at least 10 years' experience in the supervision of the
operation and management of projects in Seattle, Washington, like the project in
which the Premises are located and (b) in accordance with the Commercial
Arbitration Rules of the American Arbitration Association, and judgment upon the
award rendered by the arbitrators may be entered in any court having
jurisdiction thereof. Pending the
resolution of such dispute, Xxxxxx shall continue to pay additional rent to
Landlord in the same amounts as before Xxxxxx received the statement that is the
subject of such dispute. Within 30 days after the resolution of such dispute,
Tenant shall pay to Landlord any deficiency in additional rent found by the
arbitrators to be owing to Landlord by Xxxxxx.
The Base Rent payable by Tenant shall in no event be less than the Base Rent
specified in Article 6 even if Operating Expenses incurred by Landlord in any
Comparison Year are less than those incurred in the Base Year.
9. BUILDING SERVICES AND MAINTENANCE
9.01 Office Services. Landlord will provide normal and customary basic
janitorial services to the common areas. Tenant shall provide janitorial
services for the Premises.
9.02 Landlord's Utility, Maintenance and Repair Obligations. Landlord will
endeavor to manage and maintain the Building as quality office buildings are
managed and maintained in Seattle, Washington. Landlord has the obligation to
maintain the Building and the equipment Tenant is not responsible for located
therein and all common areas thereof, subject to the Tenant's obligation to pay
additional rent pursuant to Article 8. Landlord shall have the responsibility
for repairs of the structural components and roof of the Building.
Landlord shall have no liability to Tenant for any damage, interference or
inconvenience with the Tenant's use of the Premises as a result of repair work
by Xxxxxxxx, except for any personal injury occasioned by the negligent acts or
omissions or willful misconduct by Landlord or its employees, agents or
contractors, or except for damage to Tenant's personal property occasioned by
the gross negligence or willful misconduct of Landlord or its employees or
agents. Landlord shall have no duty to repair Tenant's property or equipment.
Tenant is not entitled to any reduction of rent for any failure to furnish any
utilities, and Landlord is not liable under any circumstances for injury or
damage to persons or property, however occurring, in connection with or
incidental to such a failure except as occasioned by the negligence or willful
misconduct of Landlord or its employees, agents or contractors. If heat-
generating machines or equipment used in the Premises affect the temperature
otherwise maintained by the air-conditioning system, Landlord reserves the
right to install supplementary air-conditioning units in the Premises and the
costs of installation, operating and maintenance of those units shall be paid by
Tenant to Landlord upon demand.
Tenant will not connect its machinery, equipment or devices with electric
current except through electrical outlets in the Premises installed as part of
Tenant's Final Plans. Tenant may obtain water or electric current in excess of
that furnished or supplied pursuant to the Final Plans with the prior written
consent of Landlord, which consent will not be unreasonably withheld. The cost
of any meters and of installation, maintenance and repair of any such additional
electrical or water systems required by Tenant in excess of that furnished
pursuant to the Tenant's Final Plans shall be paid for by Tenant promptly upon
demand, at the rates charged for the services by
the local public utility furnishing them. If a separate meter is not installed
the excess cost for water and electric current to the Premises will be
established by an estimate made by a utility company or electrical engineer.
9.03 Tenant's Utility, Maintenance and Repair Obligations. Tenant
will pay for the utilities serving the Premises, including sewer and water,
electricity, and air conditioning and heating. Landlord will not be responsible
for the furnishing of any of the above utilities to the Premises.
Tenant, at Tenant's sole cost and expense, shall at all times maintain the
Premises in good and sanitary order, condition and repair, including, but not
limited to, the interior surfaces of the ceilings, walls and floors, all doors,
interior windows, all plumbing pipes, electrical wiring, switches, and fixtures.
Tenant will supply and pay for its own janitorial services.
Tenant shall be responsible for the maintenance of the plumbing systems in the
Premises, as well as those elements of the EVAC system located in and serving
the Premises. As part of Tenant's tenant improvements, Tenant is installing
certain equipment shafts and ducts which serve the Premises and will penetrate
the roof areas of the Building. Tenant shall be solely responsible for the
maintenance and operation of these items of equipment and modifications to the
Building.
10. CONDITION OF PREMISES
By occupying the Premises, Xxxxxx accepts them and acknowledges that they comply
fully with Landlord's covenants and obligations under this Lease subject to
completion of any items noted in writing by Landlord and Tenant upon inspection
of the Premises noted prior to Xxxxxx's initial occupancy. Tenant acknowledges
that neither Landlord, nor any agent, employee or representative of Landlord,
has made any representation or warranty with respect to the Building or Premises
or with respect to the suitability or fitness of the Building or Premises for
the conduct of Xxxxxx's business or for any other use. On termination of the
Lease, Xxxxxx shall surrender the Premises broom clean and in as good condition
as received, ordinary wear and tear excepted, and if Tenant fails to do so
Landlord may restore the Premises to the condition just described, after giving
Tenant ten (10) days prior written notice thereof, at Xxxxxx's expense. Tenant
shall repair all damage to the Building or to the Premises caused by the
installation or removal of Tenant's property or resulting from negligence or
tortious conduct of Tenant, its employees, contractors, agents, licensees and
invitees.
11. TENANT'S IMPROVEMENTS
11.01 Landlord's Work. The Landlord will provide, at Xxxxxxxx's expense,
shell space improvements to the Premises in addition to Landlord's Tenant
Improvement Allowance. The shell space improvements to be provided by Landlord
are described on Exhibit D to this Lease ("Landlord's Work").
11.02 Tenant's Work. The Premises will be completed by Xxxxxx, at Tenant's
sole expense (except for the Tenant Improvement Allowance provided by Landlord)
in accordance with
the plans and specifications set forth on Exhibit C to this Lease ("Tenant's
Plans and Specifications").
11.03 Initial Tenant Improvement Allowance. Xxxxxxxx agrees to
reimburse Tenant for tenant improvement expenses in the amount of Twenty Dollars
($20.00) per rentable square foot of the Premises. The exact amount of the
allowance is subject to determination of the exact amount of rentable square
feet in the Premises in accordance with Article 2 above.
The tenant improvement reimbursements will be paid to Tenant as follows:
(a) No reimbursement payments shall be made prior to the date the Master
Use Permit is obtained (but payments may reimburse expenditures made prior to
that date);
(b) Payments shall be made no more frequently than monthly;
(c) Payment by Landlord will only be required upon delivery to Landlord of
the following documents:
(i) Contractor's draw requests;
(ii) Invoices for the payment being requested describing in detail the
work performed and the amounts due.
(d) Payments in an amount equal to one-half the invoiced amounts will be
made to Tenant within ten (10) days of receipt of the materials required by this
paragraph 11.03
(e) Within thirty (30) days of payment by Landlord, Tenant shall forward
Landlord evidence that Xxxxxx has made Tenant's portion of each invoiced
payment, and lien releases from all contractors and subcontractors performing
work on the Premises through the date of payment;
It is a material element of this Lease that Xxxxxx agrees to expend at least One
Million Five Hundred Thousand Dollars ($1,500,000) (in addition to the tenant
improvement payment made by Landlord) on real property tenant improvements to
the Premises.
11.04 First Extension Term Refurbishment Allowance. In the event that
Tenant exercises its option to extend the terms of this Lease for the first
extension term provided in Article 4, Landlord shall pay to Tenant a
refurbishment allowance of up to One Hundred Thousand Dollars ($100,000) for use
in refurbishing the Premises. Said refurbishment payment will only be made for
refurbishment expenditures incurred and paid within twelve (12) months of the
commencement date of the extended term of this Lease, and only upon delivery to
Landlord of lien releases from all contractors and subcontractors performing
work on the Premises and delivery to Landlord of Tenant's accounting records and
invoices covering the payment for labor and materials utilized in the
refurbishment of the Premises.
11.05 Expansion Space Tenant Improvement Allowance. In the event that
Tenant, during the initial term or any extended term of this Lease rents
additional space in the Building beyond the 25,300 rentable square feet
initially comprising the Premises, Landlord agrees to pay to Tenant a tenant
improvement allowance of Twenty--Five Cents ($0.25) per rentable square foot
(Twenty--Four Cents ($0.24) for improvements and One Cent ($0.01) for additional
interior glazing) of such additional space for each month remaining in the term,
including the term of any extension term for which Tenant has already exercised
its option, at the time Tenant occupies the additional space, provided, however,
Landlord's maximum obligation for all space occupied by Tenant shall be Twenty
Dollars ($20.00) per rentable square foot. Said allowance is to be used for the
construction and refurbishment of said expansion space and for glazing
improvements similar to those made at the time of the initial occupancy of the
Premises.
11.06 Reimbursement of Glazing Expenses. In the event that Tenant
exercises any of its options to extend the Lease term, Landlord shall, within
thirty (30) days after the commencement of such renewal term, reimburse Tenant
for glazing costs incurred by Tenant in connection with any expansion options
exercised during the initial term, or the previous renewal term (as the case may
be) of the Lease. The reimbursement amount shall be based upon the difference
between the actual cost of glazing at the time of expansion and the expansion
allowance that Xxxxxx received in connection with the expansion space under
paragraph 11.OS.
11.07 Amortization of Tenant Improvements. For purposes of this Lease, and
wherever reference is made herein to "amortization of tenant improvements" or
"unamortized portion of tenant improvements" said terms or similar phrase shall
have the meaning described in this paragraph. Only Tenant's tenant improvement
expenditures made by Tenant for the initial improvement of the initial Premises
and any expansion space to be occupied by Tenant shall become amortizable
expenses for purposes of this Lease. Tenant shall deliver an accounting of
Tenant's tenant improvement costs to Landlord within thirty (30) days of the
Commencement Date or date of expenditure, and said costs are subject to review
by Landlord for compliance with Tenant's approved tenant improvement plans and
specifications within sixty (60) days thereafter.
Only the cost of real property improvements shall be utilized in any
amortization, personal property of the Tenant shall not be included. All
improvements shall be amortized over the eleven (11) year period commencing with
the Commencement Date for all purposes under this Lease, even though the
improvement expenditures are made prior or subsequent to the Commencement Date.
11.08 Tenant's Construction and Approvals. Tenant shall proceed with its
construction of Tenant's improvements in accordance with Exhibit E attached
hereto ("Tenant's Construction and Approvals").
12. ALTERATIONS AND ADDITIONS
Tenant shall not, without Xxxxxxxx's prior written consent, which will not
unreasonably be withheld or delayed, make any
Premises, except for nonstructural alterations to be made at one time not
exceeding a cumulative five thousand dollars ($5,000.00) in cost. Any
alterations, improvements or additions made without the prior approval of
Landlord, shall be removed at Tenant's cost at any time upon the request of
Landlord. Xxxxxx's proposed alterations, improvements or additions must be
presented to Landlord in written detailed plans. Consent by Landlord is
conditioned upon Tenant's compliance with the provisions of Exhibit E, Paragraph
4, subparagraph (a) through (j), unless waived in writing by Landlord. In any
event, Tenant shall acquire all required permits from appropriate governmental
agencies, and comply with all conditions thereof. All alterations, improvements
and additions on the Premises shall become the property of Landlord and shall be
surrendered with the Premises at the expiration of the term, with the exception
of Tenant's trade fixtures and equipment which shall remain the property of
Tenant. Tenant shall, at its sole cost and expense, repair any damage to the
Premises where removal of Tenant's machinery or equipment causes damage to the
Premises.
13. LIENS
Tenant shall pay, when due, all claims for labor or materials furnished or
alleged to have been furnished to or for Tenant at or for use in the Premises,
which claims are or may be secured by any mechanics' or materialmen's lien
against the Premises or any interest therein. Tenant shall give Landlord not
less than ten (10) days' notice prior to the commencement of any work in the
Premises, and Landlord may post notices of non-responsibility in or on the
Premises as provided by law. If Tenant, in good faith, contests the validity of
any lien, claim or demand, Tenant shall, at its sole expense, defend itself and
Landlord and shall satisfy any adverse judgment before its enforcement against
Landlord or the Premises. In such event, if Landlord requires, Tenant shall
furnish to Landlord a lien and completion bond or a surety bond reasonably
satisfactory to Landlord in an amount equal to 1 1/2 times the estimated costs
of all the work or equal to the contested lien, claim or demand, respectively,
to insure Landlord against any liability for mechanics' liens and to ensure
completion of the work and indemnifying Landlord against reasonable attorney's
fees and costs in participating in the action if Landlord decides it is in its
best interest to do so.
14. ASSIGNMENT SUBLETTING OR SUBSTITUTION OF TENANTS
14.01 Assignment or Subletting by Xxxxxx.
(a) Tenant shall not assign, transfer, mortgage, pledge, hypothecate or
encumber this Lease or any interest therein and shall not sublet the Premises or
any part thereof, or allow occupation or use thereof by any other party or
entity (a "Transfer"), without the prior written consent of Landlord, which
consent shall not be unreasonably withheld or delayed. In the event Tenant
should desire to Transfer this Lease or any interest therein, Tenant shall
notify Landlord in writing (hereinafter referred to as the "Transfer Notice") of
the terms of the proposed Transfer and the identity of the proposed transferee
at least forty--five (45) days in advance of the date
then have a period of fifteen (15) business days following receipt of the
Transfer Notice within which to notify Tenant in writing that Landlord elects to
do one of the following:
(i) Terminate this Lease as to the space so affected as of the date
so specified by Tenant in the Transfer Notice and make payment to (or receive
payment from) the Tenant of the unamortized portion of the Tenant improvement
payments made by Tenant, (offset by the unamortized portion of the Tenant
Improvement Allowance paid by Landlord), in which event Tenant shall be relieved
of all further obligations hereunder as to such space from and after such date,
provided, however, that Tenant shall have the right to withdraw its Transfer
Notice for a period of five (5) days following receipt of Landlord's notice of
termination; or
(ii) Permit Tenant to transfer the Lease or interest therein to the
proposed transferee on the terms set forth in the Transfer Notice.
Notwithstanding the provisions of Paragraph 14.01(a)(i) immediately above,
Tenant shall have the right to sublease up to ten thousand (10,000) rentable
square feet of the Tenant's premises and Landlord shall not have the right to
terminate pursuant to Paragraph 14.0l(a)(i) as to any of said 10,000 square
feet. All other provisions of Paragraph 14.01, including specifically Landlord's
right to approve the subtenant, shall govern any subletting by Xxxxxx.
(b) If Tenant proposes to sublease less than all of the Premises, an
election by Landlord under subparagraph (a)(i) above to terminate this Lease
with respect to such space shall not affect the force or validity of the Lease
with respect to the remainder of the Premises, provided that the Rent payable
hereunder shall be adjusted on a pro rata basis in accordance with the reduction
in the rentable area of the Premises. If Landlord shall fail to notify Tenant in
writing of its election under subparagraph (a) within the fifteen business (15)
day period, Landlord shall be deemed to have waived the option described in
subparagraph (a)(i), but prior written approval by Landlord of the transferee
shall be required. Xxxxxxxx agrees to approve or disapprove the proposed
transferee within fifteen business (15) days of receipt of complete financial
statements and business history information including the name and legal
composition of the proposed transferee and the nature of the business it
proposes to carry on in the Premises.
(c) If Tenant sublets or assigns during the amortization period established
in Paragraph 11.07, Tenant shall be entitled to any rent or other consideration
in excess of the Base Rent and Xxxxxx's Share of Operating Costs payable under
this Lease as reimbursement for the unamortized portion of Tenant's Tenant
improvement expenses in connection with the Premises. After the amortization
period established in Paragraph 11.07, or following the reimbursement to Tenant
of its total Tenant improvement expenses, (whichever comes earlier), Landlord
shall be entitled to all sublease rent or other consideration in excess of the
Base Rent and Xxxxxx's Share of Operating Costs payable under this Lease to
Landlord.
(d) The consent of Landlord to any Transfer shall not release Tenant from
any of Tenant's obligations hereunder or discharge any liability of Tenant under
this Lease, nor shall said consent be deemed to be a consent to any subsequent
similar or dissimilar Transfer. Any such Transfer, without such consent shall be
void and shall constitute, at the option of Landlord, a material default
hereunder. The acceptance of rent by Landlord from any other person or entity
shall not be deemed to be a waiver by Landlord of any provision of this Lease or
to be a consent to any Transfer thereof.
(e) For purposes of this Article 14, sales, transfers or assignments, in
any single transaction, of a controlling interest in the stock of Tenant shall
constitute a Transfer hereunder.
(f) The voluntary or other surrender of this Lease or of the Premises by
Tenant or a mutual cancellation of this Lease shall not work a merger, and at
the option of Landlord any existing subleases may be terminated or be deemed
assigned to Landlord in which event the tenants under such subleases shall
become tenants of Landlord.
(g) Tenant shall reimburse Landlord for all costs incurred by Landlord in
connection with its review and consideration of any proposed Transfer, including
without limitation, reasonable attorney's fees and costs and credit report
costs.
Notwithstanding anything in this Lease to the contrary, Landlord hereby consents
to an assignment of this Lease, or a sublease of all or part of the Premises, to
the parent of Tenant or to a wholly-owned subsidiary of Tenant or of such
parent, or to any corporation into or with which Tenant may be merged or
consolidated, or to any joint venture or partnership Tenant may enter into in
connection with the business to be operated on the Premises; provided that, in
the case of a merger or consolidation, the net worth of the resulting
corporation is at least equal to the greater of (a) the net worth of Tenant on
the date hereof or (b) the net worth of Tenant immediately prior to such merger
or consolidation; provided, further, any such assignment of lease shall contain
an assumption of all of the terms, covenants and conditions of this Lease to be
performed, and any subtenant shall agree to perform all applicable provisions of
this Lease to be performed by Tenant. Xxxxxx agrees that no such assignment or
subletting shall be effective unless and until Xxxxxx gives Landlord written
notice thereof, together with a true copy of the assignment or of the sublease.
14.02 Assignment by Landlord. Landlord may assign, encumber or dispose of
all or any part of its interest in the Building, Premises or this Lease without
affecting this Lease or Tenant's obligations. Xxxxxx agrees to accept and
attorney to such transferee, provided that any transferee(s) shall accept in
writing all Landlord's responsibilities and obligations under this Lease.
15. INSURANCE AND INDEMNIFICATION
15.01 Liability Insurance. Tenant shall at Tenant's expense obtain and keep in
force during the term of this Lease
a policy of commercial/general liability insurance for bodily injury and
property damage liability arising out of Tenant's (or Tenant's agents, invitees,
employees or servants) use and occupancy of the Building, the Premises and all
areas appurtenant thereto. The insurance shall be in amounts reasonable under
the circumstances and shall have limits of at least five hundred thousand
dollars ($500,000) for property damage and for death or injury to one person,
and at least five million dollars ($5,000,000) for any one occurrence. The
policy shall insure risks covered by standard liability policies. The limits of
insurance shall not limit the liability of Tenant. If Xxxxxx fails to procure
and maintain this insurance, Landlord may, but is not required to, procure and
maintain it at Tenant's expense.
15.02 Property Insurance. Landlord shall procure and maintain at all times
during the term of the Lease a policy of insurance covering loss or damage to
the Premises in the amount of the full replacement value thereof (exclusive of
Tenant's trade fixtures, and equipment and business personal property, but
inclusive of the value of all Tenant Improvements that become a part of the
Building) providing protection against all perils included within the
classification of fire, extended coverage, vandalism, malicious mischief,
special extended perils (all risk), sprinkler leakage, and loss of rental
income, including, if required by a lender, coverage against such other hazards
that are then commonly insured against for similar properties. Such insurance
shall provide for payment of loss thereunder to Landlord and/or the holder of
any mortgages or deeds of trust or real estate contracts on the Premises or the
Building. The cost of such insurance shall be paid by Tenant as part of its
Proportionate Share of Operating Expenses.
15.03 Insurance Policies. Insurance required by this Article shall be in
companies duly qualified in Washington and reasonably acceptable to Landlord.
Tenant shall deliver to Landlord copies of any policies of insurance or binder
certificates Tenant obtains showing amount of coverage and loss payable clauses
satisfactory to Landlord. No policy shall be cancellable or subject to any
modification except after ten (10) days' prior written notice to Landlord.
Tenant shall furnish Landlord with evidence of policy renewals at least ten (10)
days prior to the expiration of each policy if available, or Landlord may order
the insurance at Tenant's expense. Tenant shall not do or permit anything which
invalidates the insurance policies referred to in this Article. Tenant shall
upon Xxxxxxxx's demand reimburse Landlord for any additional premiums paid by
Landlord attributable to any act or omission of Tenant causing an increase in
the cost of insurance.
15.04 Waiver of Subrogation. Tenant and Landlord each waive all rights of.
recovery against the other, or against the employees, agents and representatives
of the other, for loss or damage to the waiving party or its property or the
property of others under its control to the extent that the loss or damage is
insured against under any insurance policy in force at the time of the loss or
damage.
15.05 Indemnity. Tenant shall indemnify and hold Landlord harmless from all
claims for loss, damage or injury
including all costs, reasonable attorneys' fees, expenses and liabilities
incurred in the defense of any claim or action) to any person or property
arising out of Tenant's use and occupancy of the Premises or at the Premises or
arising from the conduct of Tenant's business or related activities except to
the extent caused by the negligence or willful misconduct of Landlord or its
agents, employees or contractors. Tenant shall further indemnify and hold
Landlord harmless from all claims for loss or damage arising from any negligence
of Tenant, or any of its agents, contractors or employees (including all costs,
reasonable attorneys' fees, expenses and liabilities incurred in the defense of
any claim or action).
Landlord shall defend and indemnify Tenant and save it harmless from and against
any and all liability, damages, costs and expenses, including but not limited to
reasonable attorneys' fees, arising from any act, omission or negligence of
Landlord, or the officers, contractors, licensees, agents, servants, employees,
guests or invitees of Landlord, in or about the Premises or the Building or
appurtenances thereto.
15.06 Exemption of Landlord from Liability. Unless caused by the
negligence or willful misconduct of Landlord, Landlord's agents or employees, or
contractors, Landlord is not liable for injury to Tenant's business or any loss
of income or for injury or damage to the person or property of Tenant, or
Tenant's principals, employees, invitees or any other person in or about the
Premises, where the damage or injury is caused by or results from fire, steam,
electricity, gas, water or rain, or from defects of pipes, sprinklers, wires,
appliance, plumbing, air--conditioning, lighting fixtures, or failure of
utilities. Landlord is not liable for any damages arising from any act or
neglect of any other tenant of the Building.
16. PERSONAL PROPERTY TAXES
Tenant shall pay prior to delinquency all taxes assessed against and levied upon
Xxxxxx's trade fixtures, furnishings, equipment, and all other personal property
at the Premises. When possible, Tenant shall cause its fixtures, furnishings,
equipment and all other personal property to be assessed and billed separately
from the real property. If any of Tenant's personal property is assessed with
the Premises or Building as real property, Tenant shall pay Landlord the taxes
attributable to Tenant's property within ten (10) days after receipt of a
written statement setting forth those taxes.
17. DAMAGE OR DESTRUCTION OF PREMISES
17.01 Partial Damage--Insured. If the Premises are partially damaged by a
casualty covered by the insurance policy that Landlord is required to maintain
under this Lease, Landlord shall at its expense repair the damage, but not
Tenant's fixtures, equipment or tenant improvements unless they are part of the
Premises, provided Landlord shall receive all insurance proceeds covering such
loss. Landlord shall make all repairs as soon as reasonably possible after
receipt of insurance proceeds, but in all events within six months of damage,
and this Lease shall continue in full force.
Partial damage is herein described as any damage (other than total destruction
of the Premises) which can be repaired within six (6) months.
17.02 Partial Damage--Uninsured. If the Premises are partially damaged,
except by a negligent or willful act of Tenant (in which event Tenant shall make
the repairs, at its expense) by a casualty not covered by the insurance policy
that Landlord is required to maintain under this Lease, Landlord may at its
option either (i) repair the damage as soon as reasonably possible at Landlord's
expense, and this Lease shall continue in full force, or (ii) give written
notice to Tenant with thirty (30) days after the date of the damage of the
intention to cancel and terminate this Lease as of the date of the occurrence of
damage. Tenant may, within ten (10) days after receipt of Landlord's notice,
give written notice to Landlord of Tenant's intention to repair the damage at
Tenant's expense, without reimbursement from Landlord. This Lease will then
continue in full force and Tenant shall make repairs as soon as reasonably
possible. If Tenant does not give its notice after Landlord elects termination,
this Lease shall be canceled and terminated as of the date of the occurrence of
damage.
17.03 Damage Near End of Term. If the Premises are partially destroyed or
damaged during the last six months of the term of this Lease, Landlord or Tenant
may at its option cancel and terminate this Lease as of the date of occurrence
of damage by giving written notice to the other of that election within thirty
(30) days after the date of occurrence of damage.
17.04 Total Destruction. If the Premises are totally destroyed from any
cause whether or not covered by insurance (including any total destruction
required' by any authorized public authority), this Lease shall automatically
terminate as of the date of total destruction.
17.05 Abatement of Rent: Xxxxxx's Remedies. The Base Rent payable under
Articles 6 and 8 for the period from the date of the casualty until repairs are
completed shall be abated in proportion to the degree of impairment of Tenant's
use of the Premises. Except for abatement of rent, Tenant shall have no claim
against Landlord for any damage suffered for any partial damage, destruction, or
repair of the Premises unless caused by the negligence or willful misconduct of
Landlord or Landlord's agents, employees or contractors. If Landlord does not
commence repairs within forty--five (45) days after its obligation to repair
accrues under this Article, Tenant may at its option cancel this Lease by giving
Landlord written notice at any time prior to the commencement of repairs. This
Lease will terminate as of the date of that notice.
18. CONDEMNATION
If the Premises or any portion thereof are taken under the power of eminent
domain, or sold under the threat of its exercise (a "condemnation"), this Lease
shall terminate as to the part taken as of the date the condemning authority
takes title or possession, whichever is earlier. If more than ten percent (10%)
of the floor area of the Premises, or more than twenty-
five percent (25%) of the land area of the property which is not occupied by any
improvements, is taken by condemnation, or if by condemnation a material change
in the character of the Premises prevents their continued use in substantially
the same manner as before the condemnation, Tenant may, at its option, terminate
this Lease as of the date the condemning authority takes possession. Tenant must
exercise its option in writing within ten (10) days after the condemning
authority takes possession. If Tenant does not terminate this Lease, it shall
remain in full force as to the remaining Premises, except that the Base Rent,
and Tenant's Proportionate Share, shall be reduced in the proportion that the
floor area taken bears to the total original floor area of the Premises. Any
award for taking all or any part of the Premises by condemnation, or any payment
made under threat of condemnation, is the property of Landlord, whether the
award is made as compensation for diminution in value of the leasehold, for the
taking of the fee, or as severance damages. Tenant is entitled to any award for
loss of or damage to its trade fixtures, removable personal property, and for
the cost of the unamortized portion of Tenant's improvements. If this Lease is
not terminated after condemnation, Landlord shall, to the extent of severance
damages received by it, repair any damage to the Premises caused by the
condemnation, except to the extent that Xxxxxx was reimbursed therefor by the
condemning authority. Nothing in this Lease shall prevent Tenant from pursuing
its own damage claim against the condemning authority.
19. DEFAULTS: REMEDIES
19.01 Defaults. Each of the following is a material default and breach of
this Lease by Tenant:
(a) Vacating or abandoning the Premises for more than thirty (30)
consecutive days;
(b) Failure to make any required rent or other payment as and when due if
such failure continues for a period of five (5) business days after
written notice thereof from Landlord;
(c) Failure to comply with any of the covenants or provisions of this
Lease, other than those described in subparagraph (b), if the failure
continues for a period of thirty (30) days after written notice from
the Landlord. If the nature of Tenant's default reasonably requires
more than thirty (30) days for its cure, Tenant will not be in default
if it commences to cure with the thirty (30) day period and thereafter
diligently pursues its completion.
(d) Xxxxxx's making any general assignment or arrangement for the benefit
of creditors; the filing by or against Tenant of a petition to have it
adjudged a bankrupt or a petition for reorganization or arrangement
under any bankruptcy law (unless, any petition filed against Xxxxxx is
dismissed within sixty (60) days); the appointment of a trustee or
receiver to take possession of substantially all of Tenant's assets at
the Premises or its interest in this Lease, if possession is not
restored to Tenant within sixty
(60) days; or the attachment, execution or other judicial seizure of
substantially all of Tenant's assets at the Premises or its interest
in this Lease, if that seizure is not discharged within sixty (60)
days.
(e) Discovery by Landlord that any financial statement given to Landlord
by Xxxxxx, or by any assignee, subtenant, successor in interest of
Tenant, or any guarantor of its obligations was materially false at
the time given.
19.02 Remedies. If any material default or breach by Tenant occurs,
Landlord may at any time thereafter without notice or demand do any or all
of the following:
(a) Terminate Xxxxxx's right to possession of the Premises by any lawful
means, and this Lease shall terminate; Landlord may reenter and take
possession of and remove all persons or property, and Tenant shall
immediately surrender possession of the Premises to Landlord. Landlord
may recover from Tenant all damages incurred by Landlord for Xxxxxx's
default including, but not limited to, the cost of recovering
possession of the Premises; expenses of reletting, including necessary
and reasonable renovation and alteration of the Premises.
Landlord may also recover reasonable attorney's fees and any real
estate commissions actually paid in connection with any reletting of
the Premises; the worth at the time of award by a court of competent
jurisdiction of the amount by' which the unpaid rent for the balance
of the term after the time of the award exceeds the amount of rent
loss for the same period that Tenant proves could be reasonably
avoided; and any leasing commission applicable to the unexpired term
of this Lease (calculated by amortizing the commission over the
initial term of this Lease).
(b) Maintain Tenant's right to possession, and this Lease shall continue
in force whether or not Tenant has abandoned the Premises. Landlord
shall be entitled to enforce all of its rights and remedies under this
Lease, including the right to recover rent as it becomes due.
(c) Pursue any other remedy available to Landlord under the law.
These remedies are not exclusive.
19.03 Default by Landlord. Landlord is not in default unless it fails to
perform obligations required of it within a reasonable time, and not later than
thirty (30) days after delivery of written notice by Tenant to Landlord and to
the holder of any first mortgage or deed of trust covering the Premises whose
name and address has been furnished to Tenant in writing, specifying Landlord's
failure to perform its obligations. If Landlord's obligation reasonably requires
more than
thirty (30) days for performance or cure, Landlord is not in default if it
commences performance or cure within the thirty (30) day period and thereafter
diligently pursues its completion.
19.04 Late Charges. Late payment by Tenant of rent and other sums due will
cause Landlord to incur costs not contemplated by this Lease, the exact amount
of which will be extremely difficult to ascertain. The costs include, but are
not limited to, processing and accounting charges, and late charges which may be
imposed on Landlord by the terms of any mortgage or trust deed covering the
Premises. Accordingly, if any installment of rent or any other sums due from
Tenant are not received by Landlord or its designee within ten (10) working days
after the amount is due, Tenant shall pay to Landlord a late charge equal to
five percent (5%) of the overdue amount. The parties agree that this late charge
represents a fair and reasonable estimate of the costs Landlord will incur by
reason of late payment by Xxxxxx. Acceptance of a late charge by Xxxxxxxx is not
a waiver of Tenant's default, nor a waiver of greater charges which may be
incurred by Landlord.
20. ESTOPPEL CERTIFICATES
Tenant shall at any time upon ten (10) days' prior written notice from Landlord
execute, acknowledge and deliver to Landlord a statement in writing (i) stating
the Commencement Date and certifying that this Lease is unmodified and in full
force (or, stating the nature of any modification and certifying that this
Lease, as modified is in full force) and stating the date to which the rent and
other charges are paid in advance, if any, and (ii) acknowledging that there are
not, to Xxxxxx's knowledge, any uncured defaults on the part of Landlord (or
specifying any defaults claimed). This statement may be conclusively relied upon
by any prospective purchaser or encumbrancer of the Premises.
Tenant's failure to deliver this statement within ten (10) days shall be
conclusive upon Tenant (i) that this Lease is in full force as represented by
Landlord, (ii) that there are no uncured defaults in Landlord's performance, and
(iii) that not more than one month's rent has been paid in advance. Any such
failure may also be considered by Landlord as a material default by Tenant under
this Lease.
If Landlord desires to finance or refinance the Building or part of it, Xxxxxx
agrees to provide reasonable financial information to any lender in order to
facilitate financing or refinancing. These financial statements shall be
remitted directly to the lender and shall be kept confidential by the lender.
21. BROKER
Landlord and Tenant each warrant to the other that it has had no dealings with
any real estate broker or agent in connection with the negotiation of this
Lease, except CB Commercial Real Estate, Inc., which represented Landlord, and
Xxxxxxx Partners, which represented Tenant, and that it knows of no other real
estate broker or agent who is or might be entitled to a commission in connection
with this Lease. If Landlord or Tenant has
dealt with any other person or real estate agent with respect to leasing or
renting space in the Building, such party shall be solely responsible for the
payment of any fee due said person or firm, and Landlord and Tenant shall each
indemnify and hold the other harmless from and against any liability in respect
thereof. Landlord acknowledges that it shall pay to CB Commercial Real Estate
Inc., as listing broker, a total of six and one--half percent (6.5%) of the
gross lease consideration (base rent only) for years one through five and three
and one--quarter percent (3.25%) of the gross lease consideration (base rent
only) for year 6, and CB Commercial Real Estate, Inc. shall be solely
responsible for and liable to compensate Xxxxxxx Partners (as co--broker) a
total of four percent (4%) of the gross lease consideration (base rent only) for
years one through five and two percent (2%) of the gross lease consideration
(base rent only) for year six. Such payment shall be made one-half on the date
the Lease is fully executed by both Landlord and Tenant and the Master Use
Permit permitting Tenant's use of the Premises has been issued, and one--half on
the date Tenant has occupied the Premises for its business use and has commenced
paying rent.
22. SUBORDINATION
This Lease, at Landlord's option, shall be subordinate to any ground lease,
mortgage, deed of trust, any other hypothecation for security or encumbrance
upon the real property of which the Premises are a part and to any and all
advances made on that security and to all renewals, modifications,
consolidations, replacements and extensions thereof. Despite any subordination,
Xxxxxx's right to quiet possession of the Premises shall not be disturbed and
none of Tenant's other rights under this Lease shall be diminished if Tenant is
not in default under this Lease. If any mortgagee, trustee, or ground lessor
prefers to have this Lease prior to the lien of its mortgage, deed or trust or
ground lease, and gives written notice to Tenant, this Lease shall be prior to
that mortgage, deed of trust, or ground lease, whether this Lease is dated prior
to or subsequent to the date of the mortgage, deed of trust or ground lease or
its recording date.
Tenant will execute any documents required to effectuate subordination or make
this Lease prior to any mortgage, deed of trust or ground lease within ten (10)
days after written request. Notwithstanding the foregoing, Tenant shall not be
required to subordinate this Lease to any mortgage or deed of trust unless the
mortgagee or beneficiary agrees with Xxxxxx, pursuant to a nondisturbance
agreement, that upon a foreclosure (or deed in lieu thereof), and as long as
Tenant is not in default hereunder, such mortgagee or beneficiary will recognize
this Lease and all of Xxxxxx's rights hereunder and will not disturb or
interfere with Xxxxxx's occupancy. Xxxxxxxx represents that, as of the date of
execution of this Lease, there is no mortgage or deed of trust encumbering the
Building or the Premises.
23. GENERAL PROVISIONS
23.01 Severability. The invalidity of any provision of this Lease as
determined by a court of competent jurisdiction will not affect the validity of
any other provision.
23.02 Time of Essence. Time is of the essence of this Lease.
23.03 Incorporation of Prior Agreements; Amendments. This Lease contains
all agreements of the parties with respect to all matters mentioned in it. No
prior agreement or understanding concerning those matters is effective. This
Lease may be modified only in writing, signed by the parties in interest at the
time of the modification.
23.04 Notices. Any notice given under this Lease shall be in writing and
may be given by personal delivery, facsimile transmission, or by certified mail,
postage prepaid, addressed to Tenant or to Landlord at their addresses in
Article 1. Either party may by notice under this Article change its address for
notice purposes. Notices personally delivered or transmitted by facsimile are
considered received upon delivery. Mailed notices are considered received five
(5) days after deposit in the mail. A copy of all notices given to Landlord
shall be concurrently transmitted to Landlord's lender designated in writing by
Landlord.
23.05 Waiver. Waiver by Landlord of the breach of any provision of this
Lease is not a waiver of any subsequent breach by Tenant of the same or any
other provision. Xxxxxxxx's consent to or approval of any act does not make the
Landlord's consent to or approval of any subsequent act unnecessary. Acceptance
of rent by Landlord is not a waiver of any preceding breach of any provision of
this Lease, other than Tenant's failure to pay the rent so accepted.
23.06 Recording. Tenant shall not record this Lease without Landlord's
prior written consent, and unauthorized recordation, at the option of Landlord,
constitutes a noncurable default by Tenant. Landlord and Tenant shall, upon
request of the other party, execute, acknowledge and deliver to Landlord a
"short form" memorandum of this Lease suitable for recording.
23.07 Holding Over. Any holding over after the expiration or other
termination of the term of this Lease with the written consent of Landlord
delivered to Tenant shall be construed to be a tenancy from month to month on
all the terms, covenants and conditions herein specified so far as applicable,
except that the Base Rent shall be an amount equal to one hundred twenty-five
percent (125%) of the Base Rent otherwise payable by Tenant immediately prior to
such holding over; provided, however, if such holding over is without the
written consent of Landlord, the Base Rent shall be an amount equal to Two
Hundred percent (200%) of the Base Rent otherwise payable by Tenant immediately
prior to such holding over. Acceptance by Landlord of Rent after the expiration
or termination of this Lease shall not constitute a consent by Landlord to any
such tenancy from month to month or result in any other tenancy or any renewal
of the term hereof. The provisions of this paragraph are in addition to, and do
not affect, Xxxxxxxx's right to re--entry or other rights provided by this Lease
or by law.
23.08 Covenants and Conditions. Each provision of this Lease performable
by Tenant is both a covenant and a condition.
23.09 Binding Effect. Subject to the provisions restricting assignment or
subletting, this Lease binds and benefits the parties, their personal
representatives, successors and assigns.
23.10 Common Areas/Access/Parking. All elevators, stairways, halls, public
toilet facilities and other areas for the common use of all tenants of the
building shall be open for reasonable use by Tenant and its employees. Tenant
and its employees shall have twenty-four hour access to the Premises. Tenant
shall have the right to lease up to forty--two (42) non-reserved parking spaces
in the Building parking garage. During the initial term of this Lease (years one
through six) such parking spaces shall be provided at Eighty-Five Dollars
($85.00) per month. Thirty (30) days prior to the Commencement Date, Tenant
shall notify Landlord of the initial number of parking spaces Tenant desires to
lease pursuant to this paragraph. After the Commencement Date, additional
parking spaces up to the allotment of 42 will be made available to Tenant (at
the $85.00 per space rate during the initial term) upon thirty (30) days written
request from Tenant. Tenant may reduce the number of spaces it leases upon
thirty (30) days prior written notice to Landlord. Spaces leased by Tenant but
subsequently given up by Tenant may be used by the Landlord and Xxxxxx's right
to lease those spaces in the future is subject to availability and market rates.
For example, if Xxxxxx initially leased 42 spaces and one year later reduces its
spaces rented to 20 spaces, Tenant would only be able to rent additional spaces
beyond 20 if they were not leased to others, and Tenant would have to pay market
rate for those spaces above 20.
If Tenant leases space in the Building in addition to the initial Premises,
Tenant shall be entitled to lease additional parking spaces at the ratio of one
space for each additional Five Hundred Forty-Six (546) rentable square feet
leased. The parking spaces shall be provided at Eighty-Five Dollars ($85.00) per
month per space during the initial term of this Lease. During any extended term
of this Lease the parking spaces shall be leased to Tenant at market value. All
parking rights and uses are subject to this Lease and any reasonable rules and
regulations of Landlord for such parking facilities which may be established or
altered by Landlord at any time or from time to time during the term thereof.
23.11 Corporate Authority. If Tenant is a corporation, each individual
executing this Lease on behalf of that corporation represents and warrants that
he is duly authorized to execute and deliver this Lease on behalf of the
corporation, in accordance with the duly adopted resolution of its Board of
Directors or in accordance with its Bylaws, and that this Lease is binding upon
that corporation in accordance with its terms.
23.12 Sale of Building. If Landlord's rights in the Building are sold,
Landlord will be relieved of all liability under the covenants and conditions in
this Lease arising out of any act, occurrence or omission after consummation of
the sale upon written assumption of the Lease by the purchaser. The purchaser
shall be deemed, without any further agreement by parties or their successors in
interest, to have assumed and agreed to carry out all of the covenants and
obligations of Landlord under this Lease.
23.13 Attorneys' Fees. In any dispute hereunder, or in any action to
enforce or interpret this Lease, the prevailing party is entitled to recover
reasonable attorneys' fees from the losing party.
23.14 Landlord's Access Landlord and its agents have the right to enter
the Premises at reasonable times and after reasonable notice for the purpose of
inspecting them, showing them to prospective purchasers, lenders, or lessees,
and making necessary or desirable alterations, repairs, improvements or
additions to the Premises or to the Building. Landlord may display ordinary "For
Sale" signs at any place or time except in windows of the Premises while Tenant
occupies the Premises. All of these rights may be exercised without rebate of
rent or liability to Tenant.
23.15 Signs and Auctions. Tenant may not place any sign upon the Premises
without Landlord's prior written consent, except signs conforming to the rules
and regulations of the Building, and the Master Use Permit sign required by the
City of Seattle.
23.16 Quiet Possession. Upon paying the rent and observing and performing
all of its covenants and conditions of this Lease, Tenant shall have quiet
possession of the Premises for the entire term subject to all of the provisions
of this Lease.
23.17 Building Rules and Regulations. Tenant will abide by all reasonable
rules and regulations which Landlord may make from time to time for the
management, safety, care, and cleanliness of the Building and grounds, the
parking of vehicles and the preservation of good order as well as for the
convenience of other occupants and tenants of the Building provided Landlord
gives Tenant reasonable prior written notice thereof. Violation of any rules and
regulations is a material breach of this Lease. A copy of current rules and
regulations is attached to this Lease as Exhibit F, which Tenant hereby
approves. Future rules and regulations which Landlord may from time to time make
will be reasonable and will not deprive Tenant from use of the Premises as
contemplated by the Lease.
23.18 Relationship of Parties. For the purpose of this Lease, the
relationship of the parties hereto is strictly that of landlord and tenant.
Xxxxxxxx has no interest in the Tenant's enterprise and this Lease cannot be
construed as a joint venture or partnership. Tenant is not an agent or
representative of the Landlord for any purpose.
23.19 Landlord's Representations. Landlord represents to Tenant that
Landlord is vested with a fee title interest in the Building and the parking
spaces located in the Building and has the power and authority to execute this
Lease; that there are no mechanics or materialmen's liens affecting the Building
or the Premises; and that the Building has a B-2 occupancy classification.
23.20 Annual Financial Statements. Tenant shall within thirty (30) days
of Landlord's request, provide Landlord annual financial statements for Tenant.
Said financial statements are to be prepared in accordance with generally
accepted accounting policies and shall include a. signed copy of the current
year's income tax return.
23.21 Riders. Riders, if any attached area a part of the Lease.
24. SPECIAL PROVISIONS
24.01 Medical and Hazardous Waste and Materials. Tenant shall not dispose
of or otherwise allow the improper or illegal release of any medical waste or
hazardous waste or materials in, on or under the leased Premises, or any
adjacent property, or in any improvements placed on the Leased Premises. Tenant
shall comply at all times with all statutes, regulations and ordinances, and
with all orders, decrees or judgments of governmental authorities or courts
having jurisdiction, relating to the use, collection, treatment, disposal,
storage, control, removal or cleanup of medical waste and hazardous waste or
materials in, on or under the leased Premises or any adjacent property, or
incorporated in any improvements, at Tenant's sole expense.
After notice to Tenant and a reasonable opportunity for Tenant to effect such
compliance, Landlord may, but is not obligated to, enter upon the leased
Premises and take such actions and incur such costs and expenses to effect such
compliance as it reasonably deems advisable to protect its interest in the
leased Premises; provided however, that Landlord shall not be obligated to give
Tenant notice and an opportunity to effect such compliance if (1) such delay
might result in material adverse harm to Landlord or the leased Premises, (2)
Tenant has already had actual knowledge of the situation and a reasonable
opportunity to effect such compliance, or (3) an emergency exists. Whether or
not Tenant has actual knowledge of the release of hazardous waste or materials
on the Premises or any adjacent property as the result of Xxxxxx's use of the
leased Premises, Tenant shall reimburse Landlord for the full amount of all
costs and expenses reasonably incurred by Landlord in connection with such
compliance activities, and such obligation shall continue even after the
termination of this Lease. Tenant shall notify Landlord immediately of any
release of any hazardous waste or materials or improper release of any medical
waste or materials on the leased Premises or in the Building.
Tenant shall indemnify and hold Landlord harmless against any and all losses,
liabilities, suits, obligations, fines, damages, judgments, penalties, claims,
charges, cleanup costs, remedial actions, costs and expenses (including, without
limitation, attorneys' fees and disbursements) which may be imposed on, incurred
or paid by, or asserted against Landlord or the Premises by reason of, or in
connection with (1) any misrepresentation, breach of warranty or other default
by Tenant under this paragraph, or (2) the acts or omissions of Tenant, or any
subtenant or other person for whom Tenant would otherwise be liable, resulting
in the release of any medical waste or hazardous waste or materials or the
violation of any law, rule, regulation or order pertaining to medical waste or
hazardous waste or materials.
Landlord represents and warrants to Tenant that to the best of Landlord's
knowledge Landlord has not received any notification from any governmental
agency indicating that the Premises, the Building or the real property upon
which the Building is located is or may be targeted for a federal or state
superfund
cleanup and, except as described in the next sentence, Landlord has no knowledge
that the Premises, the Building or the real property upon which the Building is
located is contaminated with any hazardous wastes or materials. Landlord hereby
discloses and Tenant acknowledges that certain areas of the basement contained
small amounts of hydraulic fluid and sludge contaminated with elevated
concentrations of TPH and metals, and said fluid and sludge were removed and
disposed of in accordance with applicable regulations. Landlord has obtained and
supplied to Tenant an environmental assessment report on the Building. Landlord
agrees to indemnify and hold Tenant harmless from and against any and all loss,
damage, claims, penalties, liability, suits, costs and expenses (including,
without limitation, reasonable attorneys' fees) and also including, without
limitation, costs of remedial action or cleanup, suffered or incurred by Tenant
arising out of or related to any release or presence of hazardous wastes or
materials on, under or in the Premises, the Building or the real property upon
which the Building is located, unless such release or presence is due to the
acts or omissions of Tenant, its agents and employees. The term "hazardous
wastes or materials" means any substance, waste or material defined as
hazardous, toxic or dangerous by any federal, state or local statute rule,
ordinance requirement or regulation now or hereafter in effect, and shall
specifically include asbestos-- containing materials, PCBs and petroleum or
hydrocarbon products.
24.02. Right of First Opportunity to Lease. At all times during the term
of this Lease and any renewal terms, Tenant shall have the right of first
opportunity to lease any space which becomes available in the Building. Tenant
shall be informed in writing of space coming available when Xxxxxxxx learns of
upcoming vacancies in the Building. In addition, prior to accepting an offer to
lease from a prospective tenant ("Third--Party Offer"), Landlord shall deliver
to Tenant notification of the availability of the space Landlord intends to
lease. Tenant shall have seven (7) business days after Landlord delivers such
notification to deliver written notice to Landlord that Tenant will lease the
space offered.
If Xxxxxx fails to deliver said notice, Xxxxxx's right of first opportunity
shall terminate as to that space until it once again becomes available and
Landlord shall be free to enter into a lease of the space to the third party who
made the Third--Party Offer for a period of six (6) months from the date of the
notice to Tenant. If the Landlord does not consummate a lease with the third
party within said six (6) month period, Xxxxxx's right of first opportunity as
to that space shall revive.
If Tenant delivers notice of acceptance to Landlord within the required seven
(7) day period, Tenant shall, commencing with the first day of the month which
is three months from the date the existing tenant vacates the space, lease the
offered space on the same terms and conditions then in effect under this Lease.
The rental rate shall be the rate paid under this Lease plus the amount of
Operating Costs and Expenses paid on a square footage basis at the time of
commencement of the lease on the offered space. Landlord shall provide Tenant
with a Tenant improvement allowance as provided in paragraph 11.05.
24.03 Limitations in New Leases. During the initial term of this Lease
(years one through six only), any new leases of space in the Building entered
into by Landlord, (including any leases entered into following Tenant's failure
to exercise its right of first opportunity to lease as provided in paragraph
24.02 above), shall be limited to a maximum term of six (6) years and shall give
Landlord the right to terminate such leases effective as of the thirty-seventh
month after the commencement dates of such leases in order to provide Tenant the
opportunity to expand into the space leased to other tenants thirty--six (36)
months after the commencement dates of the leases executed with other tenants.
Landlord shall provide Tenant with nine (9) month's written notice of the
available space, and Tenant shall have twenty (20) days to deliver to Landlord
Xxxxxx's notice of acceptance of the other Tenant's space. If Tenant declines
the space or fails to accept the space, Landlord shall be free to continue the
other tenantts occupancy of the space under the terms of the other tenant's
lease. If Tenant elects to lease the space, Tenant shall, on the first day of
the thirty-seventh month after the term of the third party lease term commenced,
lease the offered space on the same terms and conditions then in effect under
this Lease. The rental rate shall be the rate paid under this Lease plus the
amount of Operating Costs and Expenses paid on a square footage basis at the
time of commencement of the lease on the offered space. Landlord shall provide
Tenant with a Tenant improvement allowance as provided in paragraph 11.05.
24.04 Expansion Space Undertaking. Tenant desires to lease additional
space in the Building currently occupied by a printing company (northeast corner
of ground floor), and restaurant and delicatessen (east side of second floor).
Upon written notice from Tenant that Tenant desires to lease such space,
Xxxxxxxx agrees to in good faith attempt to negotiate an early cancellation of
the leases of such existing tenants. Landlord shall not be obligated to pay any
relocation costs or early termination costs nor take any action negatively
impacting the Building or Landlord's ability to lease or sell the Building in
connection with any negotiated cancellations. Landlord shall inform Xxxxxx of
any demands for early termination compensation or lease concessions required by
any existing tenant and Tenant shall have the right to pay such compensation or
concession. In the event that any cancellation or relocations costs required by
the existing tenants are not approved by Tenant, Landlord's obligation to
attempt to obtain such early cancellations shall terminate. In the event of
vacation by the existing tenant or tenants, Tenant shall have One Hundred Twenty
(120) days after such vacation to complete its tenant improvements, at which
time Tenant's obligation to pay rent shall commence. The terms and conditions,
including rental rate, tenant improvement allowance, and other terms shall be as
provided in paragraph 24.02 above, Right of First Opportunity to Lease.
24.05 Lease Cancellation. After the fourth year of the initial term of
this Lease Tenant shall have the right to cancel the Lease in the event that
Tenant needs to lease expansion space in the Building, and said space is not
available, under the following terms and conditions:
1. Tenant must need expansion space in an amount equal to at least fifteen
percent (15%) of the total space then leased by Tenant; and
2. Tenant has in good faith been unable to accept the terms of any
cancellation negotiated by Landlord pursuant to paragraph 24.04 (Expansion
Space Undertaking), or the Building does not contain the amount of
available expansion space required by Tenant (greater than 15% of its then
current occupancy) whether or not then occupied by other Tenants; and
3. (a) Tenant has delivered to Landlord written notice of Xxxxxx's
cancellation of the Lease, which shall be effective not less than nine (9)
months from the date of delivery of the notice; and (b) no less than six
(6) months prior to the effective date of the cancellation notice, Tenant
delivers to Landlord Xxxxxx's non--refundable first cancellation payment in
the amount of $100,000; and
4. No later than fifteen (15) days prior to the effective date of cancellation
a second cancellation payment equal to the unamortized portion of the funds
paid by Landlord for Tenant improvements to the Premises (which shall be
calculated by amortizing the Tenant improvement allowance over the eleven
(11) year period commencing with the Commencement Date) and real estate
commissions paid by Landlord in connection with the Lease (which commission
amount shall be calculated by amortizing the commissions over the initial
term of this Lease).
In the event that the above conditions are met, Xxxxxx's cancellation of the
Lease shall become `effective on the date specified in Tenant's cancellation
notice, which shall be not less than nine months from the date of delivery to
Landlord of Tenant's cancellation notice. In such event, the provisions of this
Lease pertaining to the condition of the Premises and the ownership of tenant
improvements upon expiration or termination of the Lease shall apply.
24.06 Storage Space Landlord shall provide Tenant Three Hundred (300)
rentable square feet of dead storage area in the parking garage at an annual
rental of $6.00 per square foot of dead storage space. In addition Landlord
shall provide an additional 625 rentable square feet of dead storage in the ramp
area adjacent to and above the Premises at no charge for the first lease year,
then $6.00 per square foot per year thereafter. Said space shall not be used in
calculating Tenant's Proportionate Share percentage. The exact square footage of
such storage space will be determined in accordance with the procedure described
in Article 2 above.
IN WITNESS WHEREOF, the parties have executed this Lease at the place and on the
date specified adjacent to their respective signatures below:
LANDLORD:
METROPOLITAN FEDERAL SAVINGS AND LOAN ASSOCIATION OF SEATTLE
BY /s/ Xxxxxxx X. Xxxxxxx
Its President/CEO
Date November 20, 1992
TENANT:
TARGETED GENETICS CORPORATION
By /s/ X. Xxxxxxx Xxxxxx
Its President and CEO
Date November 19, 1992
STATE OF WASHINGTON )
) ss
COUNTY OF KING )
I certify that I know or have satisfactory evidence that Xxxxxxx X. Xxxxxxx
is the person who appeared before me and said person acknowledged that he signed
this instrument, on oath stated that he was authorized to execute the instrument
and acknowledged it as the Pres/CEO of Metropolitan Federal Savings & Loan
Association of Seattle to be the free and voluntary act of such party for the
uses and purposes mentioned in the instrument.
Dated: November 20, 1992
/s/ Xxxx X. Xxxxxxxx
Notary Public
My appointment expires 5/5/93
I certify that I know or have satisfactory evidence that X. Xxxxxxx Xxxxxx the
person who appeared before me and said person acknowledged that she signed this
instrument, on oath stated that she was authorized to execute the instrument and
acknowledged it as the President and CEO of Targeted
Genetics Corporation to be her free and voluntary act of such party for the uses
and purposes mentioned in the instrument.
Dated November 19, 1992
Xxxxx X Xxxxxxxxxx
Notary Public
My appointment expires 2/9/92
Exhibit A
LEGAL DESCRIPTION OF
OLIVE WAY BUILDING
Lots 1, 2, 3, 4 and 5 Block 50, Second Addition to the Town of Seattle as laid
off by Heirs of Xxxxx X. Xxxx, deceased (commonly known as Heirs of Xxxxx X.
Xxxx'x 2nd Addition to the City of Seattle), according to xxxx recorded in
Volume 1 of Plats, page 121, records of King County, in the City of Seattle,
King County, Washington.
EXHIBIT B
PREMISES DESCRIPTION
PREMISES AREA: 25,300 Rentable Square Feet
LOCATION: First Floor, West Side
EXHIBIT C
TENANT'S PLANS AND SPECIFICATIONS
The plans and specifications prepared by NBBJ Architects filed
with the City of Seattle Department of Construction and Land
Use for a Master Use Permit on November 9, 1992, and signed by
Xxxxx Xxxxx.
EXHIBIT D
XXXXXXXX' S WORK
Landlord agrees, at its sole cost and expense, to construct and/or make the
following improvements to the Building:
Assumptions and Clarifications
Xxxxx Xxxxx Building
August 7, 1992
Revised September 8, 1992
Revised October 20, 1992
The following assumptions and clarifications are based on jobsite meetings with
the Owner, and sketches by NBBJ, pages SK-1 through SK-3.
Description
01000 General Conditions assumes a project duration of 6 weeks,
01002 Building permits and Fees are included in this proposal by an allowance
of $3,000.00.
02110 Demolition includes the following:
a) Remove garage office
b) Remove portion of stairwell landing
c) Remove 25 if of corridor partition
d) Remove corridor/lobby flooring
e) Dumpsters
f) MFSL will reimburse tenants' Contractor if, for economic advantage
perform demolition
03000 Concrete includes the following:
a) Excavating for the elevator pit
b) New concrete walls and floor
c) 6 deep by 16" diameter lined cylinder hole
d) An allowance of 2 man-days to rework entry concrete
03045 Concrete Cutting includes sawcutting first floor arid garage slabs
for the elevator shaft.
05110 Structural Steel is included by an allowance of $2,200.00 to support
first floor slab at elevator shaft opening.
08250 Doors and Frames include 2 ea 3'0" x 7'0" paint grade solid core
doors and frames.
08700 Finish Hardware includes the following;
a) 2 ea latchsets
b) Replace 8 ea aluminium entry door pulls (allowance $75.00
ea)
08750 Window Tinting includes the following:
a) 3M Scotchtint solar control window film on all exterior panes
b) Film to be spliced horizontally 50"" up from sill
c) Film to be chosen from 3M styles PI8AR, RE2ONEARL or RE35NEARL
or LE 50AMARL
08800 Glass and glazing includes the following:
a) All glass panels, including 1/4" single pane of glass in
aluminum frames approximately 1-1/2" in from existing window to
aid in sound control
b) Frames to be vented at top and bottom to help control
condensation
c) Replace 2 ea broken exterior panes
09250 Gypsum Drywall includes the following:
a) Approximately 25 if of new corridor partition
b) New corridor drywall ceiling at relocated partition
c) Elevator shaft wall and pump room
d) Entry lid with cove soffit and furred walls
e) Miscellaneous patch and repair due to demolition
09689 Carpet includes the following:
a) 144 SY over pad in corridor/lobby is included by an installed
allowance of $20.00 per SY
a) An entry mat allowance of $360.00
09900 Painting includes the following:
a) All new corridor, entry soffit and walls, and exposed elevator
shaft drywall surfaces to be finished with one coat PVA primer
and one coat eggshell latex
b) All existing corridor/lobby drywall surfaces to receive two
coats eggshell latex
If for asthetic or functional reasons tenant elects to install a superior window
treatment, landlord agrees to contribute whole amount allocated for above
tinting and glazing to these improvements.
c) All existing and new corridor and elevator machine room
doors to be finished with one coat oil primer and one coat
semi-gloss enamel
d) Pressure wash entire building exterior
e) Paint aluminium storefront entry (solvent clean, prime with
wash primer, paint 2 coats Aliphatic Urethane)
f) Clean facade above entry doors with Xxxxxxx Ultras Klean
#20502.
13480 Acoustical Ceiling includes repairing ceiling in tenant area at
relocated corridor partition.
14200 Elevator includes the following:
a) 1 xx Xxxxx Cimarron 20-H oildraulic passenger elevator.
Elevator is 2,000 lbs. capacity, meeting all A.D.A.
requirements as of this date, at a speed of 100 FPM, and 2
stops with 2 openings in line. Dimensions are 5'8" wide by 4'3"
deep
b) All finishes to be standard hallway doors and frames will have
bake enamel finish, signal fixtures and cab front return and
handrails will be #4 satin finish stainless steel finish, cab
will be standard Dover "DLP-1" 1" model with standard suspended
ceiling, baked enamel finish on cab door and Dover standard
carpet on the floor.
15600 Elevator Relief Venting is included by an allowance of $1,500.00
16100 Electrical includes the following:
a) Permit, including drawing of plans
b) Demolition and general rework
c) Relocate 5 ea conduits and 3 ea panels out of new elevator
shaft locations
d) Wire new elevator, including elevator motor and controls,
pressurization fan, smoke detection and shunt trip for recall,
and mechanical room
e) Lobby relamping by an allowance of $485.00
f) Digital metering for new tenant space - Electrical and Water
g) Elevator pit light fixture and outlet
h) Entry soffit lighting
j) 4 ea lobby wall sconces (material allowance of $250.00 per
fixture)
j) Power and light for exterior signage
16560 Continuous and Final Clean includes an ongoing maintenance of all
affected areas during construction and a general clean prior to tenant
occupancy.
16700 Contengency: A contingency in the amount of $2,500.00 has been included
in this proposal
** No work other than that specifically outlined above has been
included In this proposal.
** No Washington state sales tax has been included in this proposal.
EXHIBIT 3
TENANT CONSTRUCTION AND APPROVALS
1. Shell Provided by Landlord. Landlord agrees, at its sole cost and
expense, to provide Premises in their existing condition. Xxxxxxxx agrees to
construct those improvements described on Exhibit D ("Landlord's Work'").
2. Tenant Improvements. Except for Landlord's Work as provided in
paragraph 1 of this Exhibit E and in Exhibit D, Tenant, at its sole cost and
expense, shall perform all work required to complete the Premises to a finished
condition ready for Tenant to conduct its business at the Premises ("Tenant's
Work'"). The design and construction of all Tenant Work shall be provided at
Tenant's sole cost and expense in accordance with the terms and conditions of
this Exhibit. Landlord shall provide Tenant with the Tenant Improvement
Allowance which will be applied to the cost and expense of the Tenant's Work.
3. Plans and Specifications.
(a) Preliminary Plans. Within fifteen (15) business days (a "`business
day" being a day other than a Saturday, Sunday or public holiday) after the date
that Landlord and Tenant execute this Lease ("Plan Submittal Date"), Tenant
shall deliver to Landlord for its approval two (2) copies of preliminary plans
and specifications prepared by an architect or gualified space planner
("Tenant's Architect") approved in advance by Landlord for Tenant's Work
("Preliminary Plans"). Preliminary Plans shall be signed by Tenant and include:
architectural floor. plans dimensioned with partition layout, identification and
location of plumbing and mechanical systems and any floor or ceiling
penetrations. Within seven (7) days after receipt of the Preliminary Plans,
Landlord shall approve the same or deliver to Tenant, Landlord's specific
objections thereto, together with Xxxxxxxx's proposed solution to each
objection. If Landlord fails to either approve or object to the Preliminary
Plans within the seven (7) day period, Landlord shall be deemed to have approved
the Preliminary Plans. If Landlord objects to the Preliminary Plans within such
seven (7) day period, Tenant shall revise and resubmit the Preliminary Plans for
Landlord's approval within seven (7) days after receiving notice of Landlord's
objection; and this process shall continue until the Preliminary Plans are
approved by Landlord. If the Preliminary Plans are not submitted by the Plan
Submittal Date, or if the Preliminary Plans are not approved by Landlord by the
twenty--fifth (25) business day after the Plan Submittal Date, Tenant may
terminate this Lease by written notice to Landlord, and this Lease shall cease
and terminate on the date specified in the notice.
(b) Plans for Engineering. Within ten (10) business days after
Xxxxxxxx's approval of Preliminary Plans, Xxxxxx's Architect shall submit two
(2) sets of Engineering drawings based upon approved Preliminary Plans and the
following information (collectively referred to as "Engineering Plans"), for
Landlord's engineers to review for compatibility with the Building's systems:
(l) Identification or the location of all electrical and telephone
outlets (with dimensions), dedicated circuits, or power outlets greater than 120
volts.
(2) Reflected ceiling plan indicating all light fixtures and power
requirements, plus HVAC system interior and exterior locations and ductwork
distribution including supply and return air grilles.
(3) Manufacturer's brochures for all fixtures and related
equipment.
(c) Final Plans. Within four (4) weeks after the Engineering Plans
have been approved by Landlord, Tenant shall deliver to Landlord two (2) copies
of final plans and specifications ("Final Plans") prepared by Xxxxxx's Architect
based on the approved Preliminary Plans and Plans for Engineering. Tenant shall
obtain approval of the Final Plans from all appropriate government agencies, and
after they have been approved, a copy shall be initialed and dated by the
Landlord and Tenant.
(d) Quality. All Tenant Improvements described in the Preliminary
Plans and in the Final Plans must be of a quality and appearance which is not
less than the standard for a first class building.
(e) Plan Changes. If Tenant wishes to make any change to the approved
Final Plans, such request shall be made to Landlord in writing, and shall be
accompanied by all plans and specifications necessary to show and explain the
changes from the approved Final Plans. No material change in the approved Final
Plans shall be made without the prior written consent of Landlord which consent
will not be unreasonably withheld.
(f) Effect of Landlord's Approval. Approval of Tenant's Preliminary
Plans, Final Plans and Specifications shall not constitute the assumption of any
responsibility by Landlord for the accuracy or sufficiency of such plans and
specifications and Tenant shall be solely responsible for the content and
correctness of such plans and specifications.
(g) Drawing Standard. All drawings shall be on standard 30" x 42"
sheets at 1/8" scale.
4. Construction of Tenant Improvements. Tenant shall construct or cause
to be constructed the tenant improvements comprising Tenant's Work ("Tenant
Improvements") in accordance with the approved Final Plans and with each of the
following requirements:
(a) Tenant shall submit to Landlord the name of Xxxxxx's proposed
contractor, a copy of the construction contract between Tenant and its
contractor, and a certificate of public liability and property damage insurance
in an amount no less than one million dollars carried by Xxxxxx's contractor
naming Landlord as an additional insured at least five (5) business days before
the date Tenant wishes to commence construction of Tenant Improvements. The
contractor's policy of insurance shall contain an endorsement providing that the
insurance cannot be cancelled or modified unless Landlord has
EXHIBIT F
RULES AND REGULATIONS
1. Signs and Windows
(a) No sign, placard, picture, advertisement, name or notice shall be
inscribed, displayed, or printed or affixed on or to the outside or inside of
the Building without prior written consent of Landlord, and it may remove any
unauthorized sign, placard, picture, advertisement, name or notice without
notice to and at the expense of Tenant.
(b) All approved signs, or lettering shall be printed, painted,
affixed or inscribed at the expense of Tenant by a person approved of by
Landlord.
(c) Tenant shall not place or allow anything to be placed near the
glass of any window, door, partition or wall which may appear unsightly from
outside the Premises. Landlord may, at Xxxxxxxx's expense, furnish and install a
building standard window covering at all exterior windows. Tenant shall not
without prior written consent of Landlord sunscreen any window.
2. Passageways. The sidewalks, halls, passages, exits, entrances,
elevators and stairways shall not be obstructed by any Tenant or used by them
for any purpose other than for ingress and egress from their respective
Premises.
3. Public Facilities. The toilet rooms, 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 shall be thrown therein. The
expense of any stoppage or damage resulting from the violation of this rule
shall be borne by the tenant who, or whose employees or invitees, caused it.
4. Care of the Premises. Tenant shall not overload the floor of the
Premises or in any way deface the Premises or any part thereof.
5. Wiring. Xxxxxxxx will direct electricians as to where and how
telephone and telegraph wires are to be introduced. No boring or cutting of
wires will be allowed without the consent of Landlord. The location of
telephones, all boxes and other office equipment affixed to the Premises is
subject to Landlord's approval.
6. Violations. Landlord reserves the right to exclude or expel from the
Building any person who, in its judgment, is intoxicated or under the influence
of liquor or drugs, or who violates any of the rules and regulations of the
Building.
7. Vending. No vending machines or machines of any kind shall be installed,
--
maintained or operated upon the Premises without the written consent of
Landlord.
8. Building Name. Landlord has the right, exercisable without liability to
tenants, to change the name of the Building. In the event the street address is
changed at the request of Landlord, Landlord shall reimburse Tenant for Tenant"s
reasonable expenses in changing Tenant's stationary, signs and promotional
materials to show the new address.
9. Solicitation. Tenant shall not disturb, solicit, or canvass any
occupant of the Building and shall cooperate to prevent these occurrences.
10. Building Operations. Landlord has the right to control, open and
operate the public portions of the Building, and the public facilities, and
heating and air--conditioning, as well as facilities furnished for the common
use of the tenants, in the manner it deems best for the benefit of the tenants
generally.
11. Premises Locked. All entrance doors in the Premises shall be left
locked when the Premises are not in use, and all doors opening to public
corridors shall be kept closed except for normal ingress and egress from the
Premises.
12. Approval/Consent. If Tenant is required to obtain Xxxxxxxx's consent
or approval under these Rules and Regulations such consent or approval
shall not be unreasonably withheld or delayed.
FIRST AMENDMENT TO OLIVE WAY BUILDING LEASE
Targeted Genetics and Metropolitan Federal
This First Amendment to Olive Way Building Lease is executed by and between
Targeted Genetics, Inc., a Washington corporation ("Tenant") and Metropolitan
Federal Savings and Loan Association of Seattle, a federally chartered savings
and loan association ("Landlord") and is effective upon its execution by
Landlord and Tenant.
REPRESENTATIONS
A. Landlord and Tenant are parties to that Olive Way Building Lease for
the lease of portions of the Olive Way Building located at 0000 Xxxxx Xxx,
Xxxxxxx, Xxxxxxxxxx and dated November 20, 1992 (hereinafter referred to as the
"Lease").
X. Xxxxxxxx and Xxxxxx have agreed to certain modifications and
clarifications to the Lease and wish to memorialize their understandings in this
First Amendment to Olive Way Lease.
AGREEMENT
Based upon the above representations and for and in consideration of the mutual
promises contained herein, the parties agree as follows:
1. Confirmation of Rentable Square Footage. Landlord and Xxxxxx hereby
agree that pursuant to paragraph 2 of the Lease, the total rentable square
footage occupied by Tenant in the premises was 25,008 at the commencement of the
Lease term. Landlord and Tenant agree that as a result of the expansion space
outlined below, the total rentable square footage leased by Tenant in the
premises as of November 1, 1994 is 28,901 and Tenant's Proportional Share shall
be increased accordingly.
2. Confirmation of Rentable Storage Space. Landlord and Tenant agree that
pursuant to Paragraph 24.06 of the Lease, the Tenant occupies 625 rentable
square feet of dead storage space in the ramp area above the leased Premises at
a rental rate of $6.00 per square foot. Rental of the 625 square feet of the
storage space entitles Tenant to unlimited use of the balance of the storage
space located in the ramp area above the leased Premises at no additional rent.
The parties hereby also confirm that Tenant occupies a total of 812 rentable
square feet of storage space in the parking garage area at a rental rate of
$6.00 per square foot.
3. Expansion Space - Exhibit "A". Effective November 1, 1994, Xxxxxx
agrees to lease 2,202 rentable square feet of additional space located in the
southeast corner of the Olive Way Building. The location of this additional
space is shown on the drawing attached hereto as
Exhibit "A" and incorporated herein by this reference. Said additional space
shall be added to the Premises for all purposes under the Lease as of November
1, 1994.
Rent for this expansion space shall be as provided in Paragraph 6 of the Lease,
with the Base Rent for this space currently being $11.25 pursuant to Paragraph
6.01. Rent for this expansion space commenced November 1, 1994.
Tenant shall accept the additional space as is in its present condition with no
Landlord's Work required. Pursuant to Paragraph 11.05 of the Lease, Landlord
shall pay to Tenant, an Expansion Space Tenant Improvement Allowance of
$29,176.50 upon the execution of this First Amendment to Lease. Said amount was
determined by the following formula: 25 cents per square foot X 2202 square feet
X 53 months remaining in the lease term = $29,176.50.
4. Expansion Space - Exhibit "B". Effective November 1, 1994, Xxxxxx
agrees to lease 1,691 rentable square feet of additional space located in the
east side plaza level of the Olive Way Building. The location of this additional
space is shown on the drawing attached hereto as Exhibit "B" and incorporated
herein by this reference. Said additional space shall be added to the Premises
for all purposes under the Lease (except the payment of rent and utilities) as
of November 1, 1994.
Rent for this expansion space shall be as provided in Paragraph 6 of the Lease,
with the Base Rent for this space being $12.75 as of May 1, 1995 pursuant to
Paragraph 6.01. Utility charges for this space shall commence on January 1, 1995
and rent for this expansion space shall not commence until May 1,1995.
Landlord shall have the right until January 1, 1995 to remove any existing
fixtures and equipment located in the space.
Tenant shall accept the additional space as is in its present condition with no
Landlord's Work required. Pursuant to Paragraph 11.05 of the Lease, Landlord
shall pay to Tenant, the Expansion Space Tenant Improvement Allowance upon
Xxxxxx's occupancy of the space.
5. Expansion Space - Exhibit "C". Effective July 1, 1995, Xxxxxx agrees
to lease 1,483 rentable square feet of additional space located in the northeast
corner of the ground floor of the Olive Way Building. The location of this
additional space is shown on the drawing attached hereto as Exhibit "C" and
incorporated herein by this reference. Said additional space shall be added to
the Premises for all purposes under the Lease as of July 1, 1994. The effective
date is approximately 120 days from the date the space will become available to
Tenant for construction of tenant's improvements. The availability date and the
subsequent effective date may be delayed by Landlord up to sixty (60) days in
the event Landlord is unable to obtain the space on time.
Rent for this expansion space shall be as provided in Paragraph 6 of the Lease,
with the Base Rent for this space being $12.75 as of July 1, 1995 pursuant to
Paragraph 6.01
Tenant shall accept the additional space as is in its present condition with no
Landlord's Work required. Pursuant to Paragraph 11.05 of the Lease, Landlord
shall pay to Tenant, the Expansion Space Tenant Improvement Allowance upon
Xxxxxx's occupancy of the space.
6. No Further Modifications. All terms and conditions of the Lease remain in
full force and effect except as modified by this First Amendment to Olive Way
Building Lease.
The parties have executed this First Amendment to Olive Way Building Lease on
the dates shown by their respective signatures below:
LANDLORD:
Metropolitan Federal Savings and Loan Association of Seattle
By: /s/ Xxxx X. Xxxxxxxx, Date Signed: 12/8/94
Xxxx X. Xxxxxxxx, Vice-President
TENANT:
Targeted Genetics, Inc.
By:_/s/ X. Xxxxxxx Xxxxxx Date Signed 12/10/94
X. Xxxxxxx Xxxxxx, President & CEO
STATE OF WASHINGTON)
) ss.
COUNTY OF KING )
I certify that I know or have satisfactory evidence that Xxxx X. Xxxxxxxx is
the person who appeared before me and said person acknowledged that he signed
this instrument, on oath stated that he was authorized to execute the
instrument and acknowledged it as the Vice-President of Metropolitan Federal
Savings and Loan Association of Seattle to be the free and voluntary act of
such party for the uses and purposes mentioned in the instrument.
DATED:12/8/94
Xxxxx X. Xxxxxxxx
Notary Public
My appointment expires: 7/20/94
STATE OF WASHINGTON)
) ss.
COUNTY OF KING )
I certify that I know or have satisfactory evidence that X. Xxxxxxx Xxxxxx is
the person who appeared before me and said person acknowledged that she signed
this instrument, on oath stated that she was authorized to execute the
instrument and acknowledged it as the President and CEO of Targeted Genetics,
Inc. to be the free and voluntary act of such party for the uses and purposes
mentioned in the instrument.
DATED:12/10/94
Xxx X. Xxxx
Notary Public
My appointment expires: 10/29/97
EXHIBIT A
(DRAWING OF FIRST FLOOR)
EXHIBIT B
(DRAWING OF FIRST FLOOR)
EXHIBIT C
(DRAWING OF GARAGE FLOORPLAN)
SECOND AMENDMENT TO LEASE AGREEMENT
(Targeted Genetics)
This Second Amendment to Lease Agreement (the "Amendment") is entered into as of
6/12/96 between Ironwood Apartments, Inc., successor in interest to Metropolitan
Federal Saving and Loan Association of Seattle, as Landlord, and Targeted
Genetics, Inc., a Washington corporation, as Tenant, whose address for purposes
hereof is 0000 Xxxxx Xxx, Xxxxxxx, Xxxxxxxxxx 00000.
REPRESENTATIONS
X. Xxxxxxxx and Tenant, entered into that certain Olive Way Building
Lease for the lease of portions of the Olive Way Building located at
0000 Xxxxx Xxx, Xxxxxxx, Xxxxxxxxxx and dated November 20, 1992
(hereinafter referred to as the "Lease");
B . Landlord and Xxxxxx entered into that certain First Amendment to Olive
Way Lease dated December 10, 1994 (hereinafter referred to as the
"First Amendment");
X . Xxxxxxxx and Xxxxxx have agreed to certain modifications and
clarifications to the Lease and First Amendment and wish to
memorialize their understanding in this Second Amendment to Olive Way
Lease.
AGREEMENT
NOW, THEREFORE, for the foregoing purposes and in consideration of Ten
Dollars ($10.00) and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Landlord and Tenant hereby agree
as follows:
Expansion Space - Exhibit "A" Effective May 1, 1996, Xxxxxx agrees to
lease 3,090 square feet of additional space located in the northwest
corner of the ground floor of the Olive Way Building. The location of
this additional space is shown on the drawing attached hereto as
Exhibit "A" and incorporated herein by this reference. Said additional
space shall be added to the Premises for all purposes under the Lease
as of May 1, 1996.
Rent for the expansion space shall be as provided in Paragraph 6 of
the Lease, with Base Rent for this space being $13.25 per square foot
as of May 1, 1996 pursuant to Paragraph 6.01 .
Tenant shall accept the additional space as is in its present
condition with no Landlord's Work required . Pursuant to Paragraph
11.05 of the Lease, Landlord shall pay to Tenant, the Expansion Space
Tenant Improvement Allowance upon Xxxxxx's occupancy of the space.
2. Ratification. Except as expressly set forth in this Second
Amendment, the
Lease and each provision thereof, as amended, is hereby ratified and
affirmed in its entirety .
3. No Further Modification. All terms and conditions of the Lease
remain in full force and effect except as modified by this agreement
by this Second Amendment to Olive Way Building Lease. This Second
Amendment shall be construed and interpreted according to the laws of
the State of Washington.
IN WITNESS WHEREOF, this Second Amendment is executed by Landlord and
Xxxxxx as of the date first set forth above .
LANDLORD:
IRONWOOD APARTMENTS, Inc.
By: /s/ Xxxx Xxxxx
Its: President
Date: 6/12/96
TENANT:
TARGETED GENETICS, INC.
By: /s/ Xxxxx X. Xxxxxxx
Its: Vice President, Finance
Date: May 22, 1996
EXHIBIT "A"
(PARKING DIAGRAM)
TENANT NOTARY
PARTNERSHIP
STATE OF )
)ss
COUNTY OF )
On this day personally appeared before me ______________________________
to me known to be the individual(s) described in and who executed the within
and foregoing instruments as _________________________ of and acknowledged that
they signed the same as their free and voluntary act and deed on behalf of said
___________________ for the uses and purposes therein mentioned.
GIVEN under my hand and official seal this ____ day of
________________________, 19__.
_____________________________________Notary
Public in
and for the State of _________________
residing at _________
__________________________________
CORPORATION
STATE OF )
COUNTY OF )
On this 22nd day of May 1996 before me, the undersigned, a Notary Public
in and for the State of Washington, duly commissioned and sworn, personally
appeared Xxxxx X. Xxxxxxx, to me known to be the Vice President, Finance of
Targeted Genetics Corporation, the corporation that executed the foregoing
instrument, and acknowledged the said 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 they were authorized to execute the said instrument and
that the seal affixed is the corporate seal of said corporation.
WITNESS my hand and official seal hereto affixed the day and year first
above written.
/s/ Xxx X. Xxxx, Notary Public in and for the State of Washington, residing at
Seattle Washington
LANDLORD NOTARY
PARNTERSHIP
STATE OF )
)
COUNTY OF )
On this day personally appeared before me _____________________________ to
me known to be the individual(s) described in and who executed the within and
foregoing instruments as ______________________ of and acknowledged that they
signed the same as their free and voluntary act and deed on behalf of said for
the uses and purposes therein mentioned.
GIVEN under my hand and official seal this day
of____________
________ 19
Notary Public in and for the State of
residing at
CORPORATION
STATE OF )
)
COUNTY OF )
7/1
On this 12th day of June 1996, before me the undersigned a Notary Public and for
the State of Washington duly commissioned and sworn, personally Xxxx Xxxxx to me
known to be the President of Ironwood Apartmnets, Inc., the corporation that
executed the foregoing instrument, and acknowledged the said 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 they were authorized to
execute the said instrument and that the seal affixed is the corporate seal of
said corporation.
WITNESS my hand and official seal hereto affixed the day and
year first above written.
/s/ Xxxxxxx X. Xxxxxx
Notary Public in and for the State of Washington residing at Spokane,
Washington.
THIRD AMENDMENT TO LEASE AGREEMENT
This THIRD AMENDMENT TO LEASE AGREEMENT (this "Amendment") is entered into
as of October 1998 by and between Ironwood Apartments, Inc., as successor to
Metropolitan Federal Savings and Loan Association ("Landlord") and Targeted
Genetics Corporation (`Tenant").
Landlord and Tenant are parties to that certain Olive Way Building Lease
dated November 20, 1992, as modified by that certain First Amendment to Olive
Way Building Lease dated December 10, 1994 and that certain Second Amendment to
Lease Agreement executed on June 12, 1996 and May 22, 1996 (as modified, the
"Lease").
Section 4.02 of the Lease grants to Tenant three options to extend the
Lease term for 5 years each. Xxxxxx has exercised the first of these three
options, leaving two remaining. The purpose of this Amendment to modify the
Lease to reflect exercise of that option.
Landlord and Tenant do hereby amend the Lease as follows:
1. EXTENSION. The term of the Lease is hereby extended for an additional 60
months to April 1, 2004. The rent for the extended term is set forth in Section
6.02 of the Lease.
2. NO OTHER AMENDMENTS. Except as modified by this Amendment and by the
Amendments referenced above, the Lease remains in full force and effect and has
not been modified or amended.
DATED:October 30,1998.
LANDLORD:
IRONWOOD APARTMENTS, INC.,
a Washington Corporation
By:/s/ Xxxx Xxxxx
Xxxx Xxxxx, President
TENANT:
TARGETED GENETICS CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
Its Vice President, Finance
STATE OF WASHINGTON )
)ss
COUNTY OF SPOKANE )
I certify that I know or have satisfactory evidence that Xxxx Xxxxx is
the person who appeared before me, and said person acknowledged that he/she
signed this instrument, on oath stated that he/she was authorized to execute the
instrument and acknowledged it as the President of Ironwood Apartments, Inc. to
be the free and voluntary act of such party for the uses and purposes mentioned
in this instrument.
Dated: October 30, 1998
/s/ Xxxxxxx X Xxxxxx
(Signature of Notary Public)
XXXXXXX X XXXXXX
(PRINTED NAME OF NOTARY PUBLIC)
My Appointment Expires 2/27/99
STATE OF WASHINGTON )
)ss
COUNTY OF KING )
I certify that I know or have satisfactory evidence that Xxxxx Xxxxxxx
is the person who appeared before me, and said person acknowledged that he/she
signed this instrument, on oath stated that he/she was authorized to execute the
instrument and acknowledged it as the Vice President of Targeted Genetics to be
the free and voluntary act of such party for the uses and purposes mentioned in
this instrument.
Dated: 11/27/98
/s/ Xxxx Xxxxxxx
(Signature of Notary Public)
XXXX XXXXXXX
(PRINTED NAME OF NOTARY PUBLIC)
My Appointment Expires 12/8/98
