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EXHIBIT 10.1
401 ELLIOTT WEST
AMENDED AND RESTATED
OFFICE LEASE AGREEMENT
Between
401 Elliott West LLC
and
F5 Networks, Inc.
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This Amended and Restated Office Lease Agreement reflects the agreements
of the Parties as set forth in that certain Lease dated July 31, 1999 for
premises located at 401 Elliott West, Seattle, Washington, as amended by Lease
Amendment I dated October 26, 1999, and as further amended by Lease Amendment II
dated April 3, 2000.
1. BASIC LEASE TERMS
Section 1 represents a summary of the basic terms of this Office Space
Lease for 401 Elliott West.
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a. DATE OF LEASE: July 31, 1999
b. TENANT: F5 Networks, Inc.
ADDRESS OF LEASED PREMISES: 401 Elliott Avenue West
Seattle, WA 98119
ADDRESS FOR BILLING AND NOTICES: Prior to Commencement Date:
200 First Avenue West, Suite 500
Seattle, WA 98119
Phone: (206) 505 0800
Fax: (206) 505 0897
Attn: Joann Reiter, General Counsel
Same as above except the address shall be the same
as Premises after commencement of the
Lease.
c. LANDLORD: 401 Elliott West L.L.C.
ADDRESS FOR NOTICES: c/o Koehler McFadyen & Company
1601 Fifth Avenue, Suite 2210
Seattle, WA 98101
Phone: (206) 682 2680
Fax: (206) 467 5975
Attn: Steve Koehler
or such other place as
Landlord may from time to time
designate by notice to Tenant
d. PREMISES AREA: 84,765 rentable square feet,
Floors 1 through 4 of Building Two
110,111 rentable square feet,
Floors 1 through 4 of Building Three
e. BUILDING AREA OF BUILDING TWO: 85,446 rentable square feet
TENANT'S PERCENTAGE OF 99.20%
BUILDING TWO:
BUILDING AREA OF BUILDING THREE: 110,111 rentable square feet
TENANT'S PERCENTAGE OF 100%
BUILDING THREE:
f. PROJECT AREA: 299,643 rentable square feet
TENANT'S PERCENTAGE OF PROJECT: 65.04%
g. TERM OF LEASE: This Lease shall commence on July 25, 2000 as it
relates to all of Building Two, September 1, 2000 as it
relates to the first floor of Building Three, and
October 1, 2000 as it relates to floors 2 through 4 of
Building Three, or such earlier or later dates as may be
provided in Section 3 (the "Commencement Dates")
and shall terminate on the last day of the one hundred
and forty-fourth (144th) full calendar month after the
Commencement Date for the Premises in Building
Two. Landlord shall use reasonable efforts to obtain
early occupancy of the first floor of Building Three
under a certificate of occupancy, or temporary
certificate of occupancy, so that Tenant can occupy
the first floor of Building Three as close as possible to
the Commencement Date of Building Two.
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h. BASE MONTHLY RENT: $167,764.06 Building Two
$214,818.75 Building Two + Floor 1, Building Three
$394,074.89 Building Two and Building Three
i. PARKING: Initial Monthly Charge of $100.00 per month for each
Parking Permit.
Number of parking permits allocated to Tenant: 370
spaces.
j. RENT ADJUSTMENT(S): MONTHS BASE MONTHLY RENT
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61 - 72 $413,176.92
73 - 84 $423,691.84
85 - 96 $434,206.76
97 - 108 $444,721.68
109 - 144 $455,236.58
k. ADDITIONAL RENT - ESTIMATED INITIAL
TENANT'S SHARE OF EXPENSES: $ 47,680.31 Building Two
$ 61,053.75 Building Two + Floor 1, Building
Three
$109,617.75 Building Two and Building Three
l. SECURITY DEPOSIT: $6,000,000 in the form of a Letter of Credit as further
described in Section 6 and Exhibit H.
m. NON-REFUNDABLE CLEANING FEE N/A
n. PREPAID RENT N/A
o. TENANT'S USE OF PREMISES: General Purpose R&D Office with, Shipping/Light
Manufacturing Facility & Storage Space on the First
Floor of Building Three
p. BROKERS: Douglas Hanafin, Washington Partners, Inc.
TO BE PAID BY: Landlord
q. GUARANTOR(S): N/A
r. ADDITIONAL TERMS: Sections 29 to 42
s. EXHIBIT(S): Exhibit A - The Premises
Exhibit B - Tenant's Buildings and the Project
Exhibit C - Building Shell and Core Outline Specifications
Exhibit D - Signage Criteria
Exhibit E - Janitorial Specifications
Exhibit F - Tenant Work Letter
Exhibit G - [intentionally omitted]
Exhibit H - Form of Letter of Credit
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2. PREMISES/COMMON AREAS/PROJECT.
a. PREMISES. Landlord leases to Tenant the premises described in
Section 1 and in Exhibit A (the "Premises"), located in the
buildings described on Exhibit B. The buildings are part of a
larger, multi-building development shown on Exhibit B (the
"Project"). As used herein, Buildings Two and Three may be
referred to as "Tenant's Buildings", and all buildings in the
Project are referred to collectively as the "Buildings"). Upon
completion of the Tenant Improvements to the Premises, Landlord
shall cause the rentable square footage of the Premises to be
measured by Landlord's architect using the BOMA American
National Standard Institute Publication, ANSI Z65.1-1996
standards (the "Rentable Square Footage"), which measurement
shall govern with respect to the Premises Area of Section 1(d).
Tenant shall have the right to have a Washington-licensed
surveyor approved by Landlord and jointly responsible to
Landlord and Tenant verify the Premises Net Rentable Area
determined by Landlord's Architect, if it does so within twenty
(20) days after receipt of the notice from Landlord's Architect.
If based on such verification Tenant disagrees with the Net
Rentable Area determined by Landlord's Architect it shall advise
Landlord and its Architect of the deviation within ten (10) days
thereafter or be deemed to have accepted Landlord's Architect's
determination. If Tenant gives a timely notification of
disagreement, then the parties shall jointly select a
Washington-licensed surveyor to review the calculations of
Landlord's architect and the Tenant selected surveyor and make
the determination of Premises Net Rentable Area, which
determination shall be final and binding on the parties.
Landlord shall cause each building within the Project to be
similarly measured for the purposes of Sections 1(e) and 1(f)
upon completion of the interior improvements of such
building(s). Each building shall be deemed added to the Project
for the purposes of such computation upon the completion of the
Building Shell and Core improvements, as defined in Exhibit C,
to such building and the computations of Section 1, if delayed
pending final measurement of Rentable Square Footage, shall be
deemed retroactive to such date.
b. COMMON AREAS. As used in this Lease, "Common Areas" shall mean
all portions of the Project not leased or demised for lease to
specific tenants. During the Lease Term, Tenant and its
licensees, invitees, customers and employees shall have the
non-exclusive right to use the public portions of the Common
Areas, including all parking areas, landscaped areas, entrances,
lobbies, elevators, stairs, corridors, and public restrooms in
common with Landlord, other Project tenants and their respective
licensees, invitees, customers and employees. Landlord shall be
entitled to create limited Common Areas within specified
Buildings for exclusive use of the tenants within such
Buildings. Landlord shall at all times have exclusive control
and management of the Common Areas and no diminution thereof
shall be deemed a constructive or actual eviction or entitle
Tenant to compensation or a reduction or abatement of rent.
Landlord in its discretion may increase, decrease or change the
number, locations and dimensions of any Common Areas and other
improvements shown on Exhibit B, and/or designate such areas
limited Common Areas assigned to particular buildings within the
Project.
c. PROJECT. Landlord reserves the right in its sole discretion to
modify or alter the configuration or number of buildings in the
Project, so long as such modification or alteration does not
materially modify or alter Tenant's Premises and provided only
that upon such modification or alteration, the Project Area as
set forth in Section 1(e) shall be adjusted to reflect such
modification or alteration using the BOMA American National
Standard Institute Publication, ANSI Z65.1-1996.
3. TERM. For the purposes of calculating Commencement Date and effects of
construction delay under this Section 3, all of Building Two is referred
to as "Phase I", Floor 1 of Building Three is referred to as "Phase II";
and Floors 2, 3 and 4 of Building Three are referred to as "Phase III".
The Commencement Dates listed in Section 1 of this Lease for Phases I,
II and III represent an estimate of the actual Commencement Dates. The
actual Commencement Dates for each such Phase shall be the first to
occur of the following events: (i) the date Tenant has substantially
commenced the use and occupancy of that Phase or any portion thereof for
purposes other than completion of the Tenant Work (as defined in Exhibit
F), or (ii) one hundred twenty (120) days (the "Tenant Work Period")
after the Delivery Date for that Phase as defined in Exhibit F. The
scheduled Delivery Date for all of Building Two is March 25, 2000 and
for all of Building Three is May 31, 2000. As used herein, "Unexcused
Delay" means the failure to meet an applicable deadline when caused by
delays other than Tenant Delay or Force Majeure. "Day(s) of Unexcused
Delay" means the number of days of delay past the applicable deadline
caused by Unexcused Delay (excluding the effect of Tenant Delay or Force
Majeure).
The Tenant Work Period shall be extended by the amount of any Unexcused
Delay. If on September 25, 2000 with respect to all of Building Two, and
December 1, 2000 with respect to all of Building Three, as a result of
Unexcused Delay either (w) the Tenant Work is not yet substantially
complete or (x) Tenant cannot occupy the Premises because the condition
of the Building Shell and Core prevents issuance of such building permit
sign offs as are necessary for beneficial occupancy of the Premises,
then in addition to any extension of the Tenant Work Period as specified
above, Tenant shall receive a credit against Base Rent that first
becomes due under this Lease for the affected building, in an amount
equal to one (1) day of Base Rent for each such Day of Unexcused Delay.
If, on November 25, 2000 with respect to all of Building Two, and
February 1, 2001, with respect to all of Building Three, as a result of
Unexcused Delay either (y) the Tenant Work is not yet substantially
complete or (z) Tenant cannot occupy the Premises because the condition
of the Building Shell and Core prevents issuance of such building permit
sign offs as are necessary for beneficial occupancy of the Premises, and
Landlord does not substantially complete the Building Shell and Core so
that (subject to the completion of the Tenant Work), building permit
sign offs can be issued allowing Tenant to use and occupy the Premises
for its intended purposes within thirty (30) days after written notice
from Tenant of Tenant's intention to terminate this Lease as provided in
this sentence, then
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Tenant may terminate this Lease with respect to the affected building by
written notice given to Landlord at any time after the end of such
thirty (30) day period and prior to the date the Building Shell and Core
for such building is substantially complete. If the Commencement Date
for either building is later than the estimated Commencement Date
specified in Section 1 above, then, except as otherwise provided in this
Section 3, this Lease shall not be void or voidable and Landlord shall
not be liable to Tenant for such delay. Following the Commencement Date
for each building, Landlord shall confirm such date to Tenant in
writing. Any dispute between Landlord and Tenant with respect to the
terms and application of this Section 3 and Exhibits C and F attached
shall be subject to binding arbitration in accordance with Section 39 of
this Lease. All provisions of this Lease, other than those relating to
the commencement of the Lease Term, the payment of Base Rent and
Additional Rent, shall become effective on the date Tenant or its
contractor or employees are first present on the Premises for
construction, installation, move-in or other purposes.
4. RENT
a. BASE MONTHLY RENT. Tenant shall pay Landlord monthly base rent
in the initial amount in Section 1 which shall be payable
monthly in advance on the first day of each and every calendar
month of the Term of the Lease ("Base Monthly Rent") provided,
however, the first month's Base Monthly Rent and Tenant's Share
of Expenses, including any adjustments for Rent Abatement as
described in Section 30 below, is due and payable, with respect
to Building Two, upon the earlier occurrence of (a) February 1,
2000 or (b) the Commencement Date of Building Two and with
respect to Building Three, upon the earlier occurrence of (x)
seven (7) business days after mutual execution of this Amended
and Restated Lease or (y) the Commencement Date of Building
Three.
For purposes of Section 467 of the Internal Revenue Code, the
parties to this Lease hereby agree to allocate the stated Rents,
provided herein, to the periods which correspond to the actual
Rent payments as provided under the terms and conditions of this
agreement.
b. RENT ADJUSTMENT.
1) Base Monthly Rent shall be increased periodically to the
amounts and at the times set forth in Section 1(j), and
the months referenced therein shall be lease months
calculated in reference to the Commencement Date of
Phase I (Building Two).
c. EXPENSES. The purpose of this Section 4(c) is to ensure that
Tenant bears its proportionate share of all actual Expenses
related to the use, maintenance, ownership, repair or
replacement, and insurance of the Tenant's Buildings and
associated Common Areas. Accordingly, beginning on the
Commencement Dates per Section 1(g.) above, Tenant shall each
month pay to Landlord one-twelfth (1/12) of Tenant's Share of
Expenses related to Tenant's Buildings and Associated Common
Areas. As used in this Lease, "Tenant's Share" shall mean the
Premises Area, as defined in Section 1(d), divided by the total
Building Area then under lease to Tenant, as defined in Section
1(e), and "Tenant's Share of Expenses" shall mean total Expenses
for Tenant's Buildings and associated Common Areas, multiplied
by Tenant's Share, provided that Landlord may specially allocate
individual expenses where and in the manner necessary, in
Landlord's discretion, to appropriately reflect the consumption
of the expense or service. For example where some but not all
premises in a building have HVAC, Landlord may reallocate
Building Expenses for HVAC to all premises utilizing HVAC to be
apportioned on a per square foot basis, or could allocate to
each premises utilizing HVAC the cost of maintaining that
space's individual unit. In the event the average occupancy
level of a building or the Project for any year is less than
ninety five percent (95%), the actual Expenses for the building
or the Project for such year shall be proportionately adjusted
to reflect those costs which Landlord estimates would have been
incurred, had the building or Project, as applicable, been
ninety five percent (95%) occupied during such year, such that
Tenant's Share of Expenses more accurately reflects Tenant's
actual usage. Tenant's Buildings are part of a larger,
multi-building project described on Exhibit B hereto. In the
event any Expenses are billed on a multi-building basis,
Tenant's Share of such Expenses shall be charged based on the
ratio of the Premises Area, as defined in Section 1(d) divided
by the Project Area, defined in Section 1(f). The intent of the
parties is to make rental payable by Tenant and other tenants in
the Project absolutely net to Landlord assuming at least 95%
occupancy, except for items expressly excluded in Section
4(c)(1)(f).
1) EXPENSES DEFINED. The term "Expenses" shall mean all
costs and expenses of the ownership, operation,
maintenance, repair or replacement, and insurance of the
Project (allocated on a building-by-building basis, to
the extent so provided above), including without
limitation, the following costs:
(a) All supplies, materials, labor, equipment, and
utilities used in or related to the operation
and maintenance of the Project,
(b) All maintenance, management, janitorial, legal,
accounting, insurance, and service agreement
costs related to the Project. If the Building is
managed by an affiliate of Landlord, building
management fees in excess of management fees
charged by independent property managers for
comparable buildings in the Building's
geographic market area shall be excluded from
defined expenses.
(c) All maintenance, replacement and repair costs
relating to the areas within or around the
Project, including, without limitation, air
conditioning systems, sidewalks, landscaping,
service areas, driveways, parking Areas
(including resurfacing and restriping parking
areas), walkways, building exteriors (including
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painting), signs and directories, repairing and
replacing roofs, walls, etc. These costs may be
included either based on actual expenditures or
the use of an accounting reserve based on past
cost experience for the Project.
(d) Amortization (along with reasonable financing
charges) of capital betterments made to the
Project which may be required by any government
authority or which will improve the operating
efficiency of the Project (provided, however,
that the amount of such amortization for
improvements not mandated by government
authority shall not exceed in any year the
amount of costs reasonably determined by
Landlord in its sole discretion to have been
saved by the expenditure either through the
reduction or minimization of increases which
would have otherwise occurred).
(e) Real Property Taxes including all taxes,
assessments (general and special) and other
impositions or charges which may be taxed,
charged, levied, assessed or imposed upon all or
any portion of or in relation to the Project or
any portion thereof, any leasehold estate in the
Premises or measured by Rent from the Premises,
including any increase caused by the transfer,
sale or encumbrance of the Project or any
portion thereof. "Real Property Taxes" shall
also include any form of assessment, levy,
penalty, charge or tax (other than estate,
inheritance, net income, or franchise taxes)
imposed by any authority having a direct or
indirect power to tax or charge, including,
without limitation, any city, county, state
federal or any improvement or other district,
whether such tax is (1) determined by the value
of the Project or the Rent or other sums payable
under this Lease; (2) upon or with respect to
any legal or equitable interest of Landlord in
the Project or any part thereof; (3) upon this
transaction or any document to which Tenant is a
party creating a transfer in any interest in the
Project, (4) in lieu of or as a direct
substitute in whole or in part of or in addition
to any real property taxes on the Project, (5)
based on any parking spaces or parking
facilities provided in the Project, or (6) in
consideration for services, such as police
protection, fire protection, street, sidewalk
and roadway maintenance, refuse removal or other
services that may be provided by any
governmental or quasi-governmental agency from
time to time which were formerly provided
without charge or with less charge to property
owners or occupants.
(f) Landlord agrees that Expenses as defined in
Section 4(c) shall not include the following:
(i) the cost of any special services rendered to
individual tenants for which a separate charge
is billed; (ii) costs of capital betterments
except as provided in subsection 4(c)(1)(d)
above; (iii) Legal fees, brokerage commissions,
advertising costs, or other related expenses
incurred by Landlord in an effort to generate
rental income; (iv) Repairs, alterations,
additions, improvements or replacements made to
rectify or correct any defect in the original
design, materials or workmanship of Building or
common areas (but not including repairs,
alterations, additions, improvements or
replacements made as a result of ordinary wear
and tear); (v) Damage and repairs attributable
to fire or other casualty for which Landlord is
reimbursed from insurance proceeds; (vi) (a)
Executive Salaries or (b) Salaries of service
personnel for performance of services except to
the extent incurred directly in connection with
the management, operation, repair or maintenance
of the Building; (viii) Landlord's general
overhead expenses not related to the Building,
provided that Landlord shall be allowed to
include the value of any rent-free or
rent-reduced occupancy in the Building if such
is given to the managing entity in lieu of a
higher management fee; (ix) Legal fees,
accountants' fees and other expenses incurred in
connection with disputes with tenants or other
occupants of the Building or associated with the
enforcement of the terms of any leases with
other tenants or otherwise incurred for any
reason other than for the general benefit of all
tenants in the Building; (x) Costs (including
permit, license and inspection fees) incurred in
renovating or otherwise improving, decorating,
painting or altering (a) vacant space (excluding
common areas) in the Building, or (b) space for
tenants or other occupants in the Building, or
(c) costs incurred in supplying any improvement
item specifically for, or specific services to,
other tenants in the Building; (xi) Principal
and/or interest payments called for under any
debt secured by a mortgage or deed of trust on
the Building; (e) Landlord shall not attempt to
collect in excess of one hundred percent (100%)
of Operating Expenses and shall not recover any
item of cost more than once; (xiii) Any bad debt
loss, rent loss, or reserves for bad debts or
rent loss; (xiv) All items and services for
which Tenant or any other tenant in the Building
otherwise reimburses Landlord; (xv) Electric
power costs for which any tenant directly
contracts with the local public service company;
(xvi) Costs arising from Landlord's political or
charitable contributions; (xvii) Costs, other
than those incurred in ordinary maintenance, for
the purchase and installation of sculpture,
paintings or other objects of art; (xviii) Tax
penalties incurred as a result of Landlord's
negligence, inability or unwillingness to make
payments when due; (xix) Costs incurred due to a
violation by Landlord or any other tenant of the
Building of the terms and conditions of any
lease; (xx) Costs and expenses incurred in
complying with hazardous waste and environmental
laws where the lack of compliance is caused by
hazardous waste brought into the Project by
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Landlord, its employees, agents or contractors
or other tenants; (xxi) Costs or expenses which
would be capitalized under generally accepted
accounting principals, and which relate to the
initial completion of the Premises, load bearing
walls and other structural elements of the
Building or the Project, or during the initial
Lease Term related to the replacement of the
heating and air conditioning and other Building
and Project systems; and (xxii) direct costs of
managing the Garage paid to third party garage
operators such as management fees, attendants,
cashiers and maintenance of ticket dispensing
equipment.
2) ANNUAL ESTIMATE OF EXPENSES, TENANT'S SHARE. When Tenant
takes possession of the Premises, Landlord shall
estimate Tenant's share of Expenses for the remainder of
the calendar year, and at the commencement of each
calendar year thereafter, Landlord shall estimate
Tenant's Share of Expenses for the coming year by
multiplying the appropriate estimated annual Building or
Project Expenses by Tenant's Share.
3) MONTHLY PAYMENT OF EXPENSES. Tenant shall pay to
Landlord, monthly in advance, as Additional Rent,
one-twelfth (1/12) of the Annual Estimate of Tenant's
Share of Expenses beginning on the date Tenant takes
possession of the Premises. As soon as practical
following each calendar year, Landlord shall prepare an
accounting of actual Expenses incurred during the prior
calendar year and such accounting shall reflect Tenant's
Share of Expenses. If the Additional Rent paid by Tenant
under this Section 4(c)(3) during the preceding calendar
year was less than the actual amount of Tenant's Share
of Expenses, Landlord shall so notify Tenant and Tenant
shall pay such amount to Landlord within 30 days of
receipt of such notice. Such amount shall be deemed to
have accrued during the prior calendar year and shall be
due and payable from Tenant even though the term of this
Lease has expired or this Lease has been terminated
prior to Tenant's receipt of this notice. Tenant shall
have thirty (30) days from receipt of such notice to
contest the amount due, failure to so notify Landlord
shall represent final determination of Tenant's Share of
Expenses. If Tenant's payments were greater than the
actual amount, then such overpayment shall be credited
by Landlord to Tenant's Share of Expenses due under this
Section 4(c)(3). If such overpayment is determined after
termination of this Lease, then such overpayment shall
be paid by Landlord to Tenant within thirty (30) days
after the annual expense statement is completed with
deduction of any remaining sums owed by Tenant to
Landlord.
4) RENT WITHOUT OFFSET AND LATE CHARGE. As used herein,
"Rent" shall mean all monetary sums due from Tenant to
Landlord. All Base Monthly Rent shall be paid by Tenant
to Landlord without prior notice or demand in advance on
the first day of every calendar month, at the address
shown in Section 1, or such other place as Landlord may
designate in writing from time to time. Whether or not
so designated, all other sums due from Tenant under this
Lease shall constitute Additional Rent, payable without
prior notice or demand when specified in this Lease, but
if not specified, then within thirty (30) days of
demand, during which time the parties will work to
resolve any good faith disagreements on the amount due.
All Rent shall be paid without any deduction or offset
whatsoever except as otherwise specifically provided
herein. All Rent shall be paid in lawful currency of the
United States of America. Proration of Rent due for any
partial month shall be calculated by dividing the number
of days in the month for which Rent is due by the actual
number of days in that month and multiplying by the
applicable monthly rate. Tenant acknowledges that late
payment by Tenant to Landlord of any Rent, Additional
Rent or other sums due under this Lease will cause
Landlord to incur costs not contemplated by this Lease,
the exact amount of such cost being extremely difficult
and impracticable to ascertain. Such costs include,
without limitation, processing and accounting charges
and late charges that may be imposed on Landlord by the
terms of any encumbrance or note secured by the
Premises. Therefore, if any Rent or other sum due from
Tenant is not received within five (5) business days of
the date due, Tenant shall pay to Landlord an additional
sum equal to 5% of such overdue payment. Landlord and
Tenant hereby agree that such late charge represents a
fair and reasonable estimate of the costs that Landlord
will incur by reason of any such late payment and that
the late charge is in addition to any and all remedies
available to the Landlord and that the assessment and/or
collection of the late charge shall not be deemed a
waiver of any other default. Additionally, all such
delinquent Rent or other sums, plus this late charge,
which are more than thirty (30) days past due, shall
bear interest at the rate of 15 percent per annum. If
the interest rate specified in this Lease is higher than
the rate permitted by law, the interest rate is hereby
decreased to the maximum legal interest rate permitted
by law. Any payments of any kind returned for
insufficient funds will be subject to an additional
handling charge of $25.00, and thereafter, Landlord may
require Tenant to pay all future payments of Rent or
other sums due by money order or cashier's check.
5) REVIEW AND AUDIT RIGHT. Tenant shall have the right (no
more frequently than once per calendar year) to review
Landlord's books and records pertaining to Expenses for
the prior year. Tenant may cause an audit of Landlord's
books and records which will be conducted by an
independent certified public accountant designated by
Tenant. If any such audit discloses Tenant overpaid its
share of Expenses for any calendar year, Landlord shall
pay Tenant the amount of the overpayment within thirty
(30) days after the results of the audit have been
disclosed to both parties. If any such audit discloses
that Tenant underpaid its share of Expenses during any
calendar year, Tenant shall pay
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Landlord the amount of the underpayment within thirty
(30) days after the results of the audit have been
disclosed to both parties. All costs and expenses of the
audit shall be paid by Tenant; however, if the audit
shows Landlord overstated Tenant's share of expenses for
the subject calendar year by more than five percent (5%)
of the amount actually payable by Tenant, Landlord shall
reimburse Tenant for the reasonable costs and expenses
of the audit within thirty (30) days of receipt of
Tenant's notice of the amount due. Any review or audit
of Landlord's books and records pertaining to Expenses
shall occur at the office of the Building manager or at
such other location in the Seattle Metropolitan Area as
Landlord or its Building manager may designate and shall
occur during the normal business hours of the Building
manager, unless otherwise agreed by Landlord and Tenant.
The results of the audit and any information obtained by
Tenant from the audit or Tenant's review of Landlord's
books and records shall be kept confidential and not
disclosed to any other person or entity, including any
other tenant of the Buildings or the Project, except as
required by court order or applicable law.
5. PREPAID RENT. Tenant shall, in addition to the payment of the first
month's Rent as set forth in Section 4(a), pay to Landlord the prepaid
Rent set forth in Section 1(n), and if Tenant is not in default of any
provisions of this Lease, such prepaid Rent shall be applied toward Base
Monthly Rent for the months set forth in Section 1(n). Landlord's
obligations with respect to the prepaid Rent are those of a debtor and
not of a trustee, and Landlord can commingle the prepaid Rent with
Landlord's general funds. Landlord shall not be required to pay Tenant
interest on the prepaid Rent. Landlord shall be entitled to immediately
endorse and cash Tenant's prepaid Rent; however, such endorsement and
cashing shall not constitute Landlord's acceptance of this Lease. In the
event Landlord does not accept this Lease, Landlord shall return said
prepaid Rent.
6. DEPOSIT. Upon execution of this Lease, Tenant shall deposit a security
deposit as set forth in Section 1(l) with Landlord in the form of an
irrevocable, unconditional letter of credit from an acceptable financial
institution. The form of the Letter of Credit and the terms under which
it shall be extinguished is provided in Exhibit H, Form of Letter of
Credit. If Tenant is in default, Landlord can use the Letter of Credit
or any portion of it to cure the default or to compensate Landlord for
any damages sustained by Landlord resulting from Tenant's default. Upon
demand, Tenant shall immediately restore the Letter of Credit to its
full amount. In no event will Tenant have the right to apply any part of
the security deposit to any Rent or other sums due under this Lease. If
Tenant is not in default at the expiration or termination of this Lease,
Landlord shall return the Letter of Credit to Tenant. Landlord shall not
be required to pay Tenant interest on the security deposit.
7. USE OF PREMISES AND PROJECT FACILITIES. Tenant shall use the Premises
solely for the purposes set forth in Section 1 and for no other purpose
without obtaining the prior written consent of Landlord, which consent
shall not be unreasonably withheld, delayed or conditioned. Tenant
acknowledges that neither Landlord nor any agent of Landlord has made
any representation or warranty with respect to the Premises or with
respect to the suitability of the Premises or the Project for the
conduct of Tenant's business, nor has Landlord agreed to undertake any
modification, alteration or improvement to the Premises or the Project,
except as provided in writing in this Lease. Tenant acknowledges that
Landlord may from time to time, at its sole discretion, make such
modifications, alterations, deletions or improvements to the Project as
Landlord may deem necessary or desirable, without compensation or notice
to Tenant as long as such modifications, alterations, deletions or
improvements do not materially alter Tenant's use of its Premises.
Tenant shall promptly comply with all laws, ordinances, orders and
regulations affecting the Premises and the Project, including, without
limitation, any rules and regulations that may be attached to this Lease
and to any reasonable modifications to these rules and regulations as
Landlord may adopt from time to time. Tenant acknowledges that, except
for Landlord's obligations pursuant to Section 13, Tenant is solely
responsible for ensuring that the Premises comply with any and all
governmental regulations applicable to Tenant's conduct of business on
the Premises, and that Tenant is solely responsible for any alterations
or improvements that may be required by such regulations, now existing
or hereafter adopted. Tenant shall not do or permit anything to be done
in or about the Premises or bring or keep anything in the Premises that
will in any way increase the premiums paid by Landlord on its insurance
related to the Project or which will in any way increase the premiums
for fire or casualty insurance carried by other tenants in the Project.
Tenant will not perform any act or carry on any practices that may
injure the Premises or the Project; that may be a nuisance or menace to
other tenants in the Project; or that shall in any way interfere with
the quiet enjoyment of such other tenants. Tenant shall not use the
Premises for sleeping, washing clothes, cooking or the preparation,
manufacture or mixing of anything that might emit any objectionable
odor, noises, vibrations or lights onto such other tenants. If sound
insulation is required to muffle noise produced by Tenant on the
Premises, Tenant at its own cost shall provide all necessary insulation.
Tenant shall not do anything on the premises which will overload any
existing parking or service to the Premises. Pets and/or animals of any
type shall not be kept on the Premises.
8. HAZARDOUS SUBSTANCES; DISRUPTIVE ACTIVITIES
a. HAZARDOUS SUBSTANCES.
(1) Presence and Use of Hazardous Substances. Tenant shall
not, without Landlord's prior written consent, keep on
or around the Premises, Common Areas or Building, for
use, disposal, treatment, generation, storage or sale,
any substances designated as, or containing components
designated as hazardous, dangerous, toxic or harmful,
and/or is subject to regulation, statute or ordinance
(collectively referred to as "Hazardous Substances").
Notwithstanding the preceding sentence, Tenant may keep,
use, store and dispose of, in, on and from the Premises,
materials and supplies otherwise constituting
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Hazardous Substances which are customarily used for the
purposes set forth in Section 1, provided such materials
and supplies are used, handled and disposed of in
accordance with all applicable governmental rules,
regulations, laws and requirements, and in accordance
with prudent business practices. With respect to any
such Hazardous Substance, Tenant shall:
(i) Comply promptly, timely, and completely with all
governmental requirements for reporting,
keeping, and submitting manifests, and obtaining
and keeping current identification numbers;
(ii) Submit to Landlord true and correct copies of
all reports, manifests, and identification
numbers at the same time as they are required to
be and/or are submitted to the appropriate
governmental authorities;
(iii) Within five (5) days of Landlord's request,
submit written reports to Landlord regarding
Tenant's use, storage, treatment,
transportation, generation, disposal or sale of
Hazardous Substances and provide evidence
satisfactory to Landlord of Tenant's compliance
with the applicable government regulations;
(iv) Allow Landlord or Landlord's agent or
representative to come on the Premises at
reasonable times, with at least twenty four (24)
hours prior notice to Tenant (except in an
emergency, when no notice is required), to check
Tenant's compliance with all applicable
governmental regulations regarding Hazardous
Substances;
(v) Comply with minimum levels, standards or other
performance standards or requirements which may
be set forth or established for certain
Hazardous Substances (if minimum standards or
levels are applicable to Hazardous Substances
present on the Premises, such levels or
standards shall be established by an on-site
inspection by the appropriate governmental
authorities and shall be set forth in an
addendum to this Lease); and
(vi) Comply with all applicable governmental rules,
regulations and requirements regarding the
proper and lawful use, sale, transportation,
generation, treatment, and disposal of Hazardous
Substances.
(2) If Tenant violates any provisions of this section, then
any and all costs incurred by Landlord and associated
with Landlord's monitoring of Tenant's compliance with
this Section 8, including Landlord's attorneys' fees and
costs, shall be Additional Rent and shall be due and
payable to Landlord immediately upon demand by Landlord.
b. CLEANUP COSTS, DEFAULT AND INDEMNIFICATION.
(1) Tenant shall be fully and completely liable to Landlord
for any and all cleanup costs, and any and all other
charges, fees, penalties (civil and criminal) imposed by
any governmental authority with respect to Tenant's use,
disposal, transportation, generation and/or sale of
Hazardous Substances, in or about the Premises, Common
Areas, or Building.
(2) Tenant shall indemnify, defend and save Landlord and
Landlord's lender, if any, harmless from any and all of
the costs, fees, penalties and charges assessed against
or imposed upon Landlord (as well as Landlord's and
Landlord's lender's attorneys' fees and costs) as a
result of Tenant's use, disposal, transportation,
generation and/or sale of Hazardous Substances.
(3) Upon Tenant's default under this Section 8, in addition
to the rights and remedies set forth elsewhere in this
Lease, Landlord shall be entitled to the following
rights and remedies:
(i) At Landlord's option, to terminate this Lease
immediately; and/or
(ii) To recover any and all damages associated with
the default, including, but not limited to
cleanup costs and charges, civil and criminal
penalties and fees, loss of business and sales
by Landlord and other tenants of the Buildings,
any and all damages and claims asserted by third
parties and Landlord's attorneys' fees and
costs.
c. DISPOSAL OF WASTE
(1) REFUSE DISPOSAL. Tenant shall not keep any trash,
garbage, waste or other refuse on the Premises except in
sanitary containers and shall regularly and frequently
remove same from the Premises. Tenant shall keep all
incinerators, containers or other equipment used for
storage or disposal of such materials in a clean and
sanitary condition.
(2) SEWAGE DISPOSAL. Tenant shall properly dispose of all
sanitary sewage and shall not use the sewage disposal
system (a) for the disposal of anything except sanitary
sewage or (b) in excess of the lesser amount (i)
reasonably contemplated by the uses permitted under this
Lease or (ii) permitted by any governmental entity.
Tenant shall keep the sewage
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disposal system free of all obstructions and in good
operating condition.
(3) DISPOSAL OF OTHER WASTE. Tenant shall properly dispose
of all other waste or other matter delivered to, stored
upon, located upon or within, used on, or removed from,
the Premises in such a manner that it does not, and will
not, adversely affect the (a) health or safety of
persons, wherever located, whether on the Premises or
elsewhere (b) condition, use or enjoyment of the
Premises or any other real or personal property,
wherever located, whether on the Premises or anywhere
else, or (c) Premises or any of the improvements thereto
or thereon including buildings, foundations, pipes,
utility lines, landscaping or parking areas.
d. DISRUPTIVE ACTIVITIES. Tenant shall not:
(1) Produce, or permit to be produced, any intense glare,
light or heat except within an enclosed or screened area
and then only in such manner that the glare, light or
heat shall not, outside the Premises, be materially
different from the light or heat from other sources
outside the Premises;
(2) Create, or permit to be created, any sound pressure
level which will interfere with the quiet enjoyment of
any real property outside the Premises, or which will
create a nuisance or violate any governmental law, rule,
regulation or requirement;
(3) Create, or permit to be created, any ground vibration
that is materially discernible outside the Premises;
(4) Transmit, receive or permit to be transmitted or
received, any electromagnetic, microwave or other
radiation which is harmful or hazardous to any person or
property in, or about the Project; or
(5) Create, or permit to be created, any noxious odor that
is disruptive to the business operations of any other
tenant in the Project.
9. SIGNAGE. All signing shall comply with rules and regulations set forth
by Landlord as may be modified from time to time. Tenant shall place no
window covering (e.g., shades, blinds, curtains, drapes, screens, or
tinting materials) other than those installed per Exhibit C, stickers,
signs, lettering, banners or advertising or display material on or near
exterior windows or doors if such materials are visible from the
exterior of the Premises, without Landlord's prior written consent.
Similarly, Tenant may not install any alarm boxes, foil protection tape
or other security equipment on the Premises without Landlord's prior
written consent. Any material violating this provision may be destroyed
by Landlord without compensation to Tenant. Allowed tenant signage is
provided for in Section 39, Tenant Signage, and Exhibit D, Signage
Criteria.
10. PERSONAL PROPERTY TAXES. Tenant shall pay before delinquency all taxes,
assessments, license fees and public charges levied, assessed or imposed
upon its business operations as well as upon all trade fixtures,
leasehold improvements, merchandise and other personal property in or
about the Premises.
11. BUILDING PARKING GARAGE.
a. GRANT OF NON-EXCLUSIVE RIGHT. Landlord grants to Tenant and
Tenant's customers, suppliers, employees and invitees, a
non-exclusive license to use up to 1.9 parking spaces per 1,000
rentable square feet of the Premises. The estimated number of
parking spaces is set forth in Section 1(i). This number shall
be phased in based on rentable square footage under lease
according to the phased Commencement Dates of Buildings Two and
Three as provided in Sections 1 and 3. Landlord reserves the
right at any time to grant similar non-exclusive use to other
tenants, to promulgate rules and regulations relating to the use
of such parking areas, including reasonable restrictions on
parking by tenants and employees, to designate specific spaces
for the use of any tenant, to make changes in the parking layout
from time to time, and to establish reasonable time limits on
parking.
b. LOCATION AND DESIGNATION. There shall exist within the Project a
garage and surface parking area (collectively the "Garage").
Landlord shall issue to Tenant parking stickers, tags, or access
cards (collectively referred to herein as a "Parking Permit") in
a number equal to the number of allocated parking spaces
specified in Section 11 (a) above. Each Parking Permit will
authorize parking in the Garage for one (1) car, twenty-four
(24) hours a day, seven days a week subject to modification as
provided in this Section 11. Landlord may designate, subject to
change from time to time, certain areas within the Garage within
which each car may be parked, and Tenant shall observe such
designations. Tenant shall observe all reasonable rules and
regulations promulgated by Landlord from time to time concerning
the use of the Garage and shall supply such additional
information relating to persons authorized to use the Garage as
may be reasonably requested by Landlord from time to time,
including automobile license numbers related to each Parking
Permit. All such rules and regulations will apply fairly and
equally to all tenants.
c. OPERATIONS. Landlord may maintain, at it's sole discretion,
within the Garage or surface parking area, an area designated
"visitor parking" which may be made accessible on an exclusive
basis to visitors, clients and other invitees of Building
tenants, including Tenant, on an hourly charge basis. Upon the
Commencement of this Lease, the Garage shall be open to the
general public during the hours of 7:00 a.m. through 7:00 p.m.,
Monday through Friday, excluding Building
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holidays. Landlord shall provide an access system to the
enclosed portion of the Garage for use by Tenant during the
periods the Garage is not open to the general public. Hours
during which the general public will have access to the Garage
shall be determined at Landlord's sole discretion and may be
adjusted from time to time.
d. CHARGES. The initial monthly charge for the Parking Permits to
be provided Tenant by Landlord shall be the amount set forth in
Section 1(i) of the Lease. Such rate shall be in effect upon the
Commencement Date of the Lease, subject to adjustment during
each year of the Lease term based upon comparable parking rates
for similar buildings in the Lower Queen Anne area (reflecting
any applicable federal, state and local taxes and levies),
however, in no event shall the rate set forth in Section 1(i) be
increased for Tenant's allocated Parking Permits during the
initial twelve (12) months of the Lease term and the rate during
the second twelve (12) months of the lease term shall not be
increased more than 5% above the rate set forth in Section 1(i).
Landlord shall maintain a parking validation system for use by
tenant customers, clients and invitees. Tenant's monthly parking
charge for all Parking Permits and the charges for all validated
parking, if any, shall be billed to Tenant and shall be due as
Additional Rent within ten (10) days after such billing. All
hourly parking shall be priced comparably to the hourly parking
rates charged by similar office buildings located in the area
(reflecting any applicable federal, state and local taxes and
levies).
e. HOV. Parking stalls required by the City of Seattle for Vanpool,
carpool and other high occupancy vehicle or transportation
management programs established under a required transportation
management plan for the Buildings will be allocated to each
tenant based upon the proportionate share of Parking Permits
assigned that tenant for the Buildings, and any such HOV Parking
Permits shall be counted against Tenant's total Permit
allocation pursuant to Section 11(a).
12. UTILITIES/SERVICES
a. UTILITIES/SERVICES. Landlord shall cause public utilities to
furnish electricity, gas, water and sewer utilized in operating
all normal facilities serving the Premises; and to furnish
Tenant during Tenant's occupancy of the Premises:
(1) Hot and cold water at those points of supply provided
for general use of Tenant in the Building; central
heating and air conditioning in season and at such
temperatures and in such amounts as are reasonably
considered by Landlord to be standard for comparable
buildings in the Lower Queen Anne area. Tenant shall set
operating hours for the Building, subject to the
reasonable approval of Landlord. For purposes of this
Lease in determining the estimated amount in Section
1(k), normal business hours for the Building, Common
Areas and the Garage of the Project are estimated to be
7:00 AM to 6:00 PM Monday through Friday and 7:00 AM to
1:00 PM Saturdays, excluding holidays. Routine
maintenance, painting and electric lighting service for
all public areas and special service areas of the
Building shall be provided as reasonably requested by
Tenant. During other than normal business hours for the
Building such services shall be provided upon request of
Tenant, and if reasonably available, Tenant shall bear
the entire cost thereof as Additional Rent. Tenant shall
have access to the Premises twenty four (24) hours per
day, seven (7) days per week, including holidays and
weekends, subject to Building security systems and
procedures.
(2) Janitorial service on a five (5) day week basis in
accordance with the janitorial specifications attached
hereto as Exhibit E (which standards shall be subject to
reasonable modification by Landlord from time to time to
reflect changes in the industry). If Tenant requires
janitorial service in excess of such established
standards, and Landlord provides such service, Tenant
shall pay any additional cost attributable thereto as
Additional Rent.
(3) Electrical facilities to provide sufficient capacity to
serve the electrical power needs of Landlord's equipment
servicing the Building and including up to 3.0 watts per
square foot of Tenant's Premises for convenience outlet
loads and Tenant's miscellaneous equipment loads. In the
event Tenant requires electrical service (e.g. the
supply of power in a specific voltage or amperage
configuration) other than what is provided by the
Building to serve Tenant's equipment, and should the
installation of such equipment require additional air
conditioning capacity above that provided by the
Building's standard system, then the cost of the
installation and operation of the additional electrical
service and air conditioning equipment, if any, shall be
paid by Tenant.
In the event Tenant desires any of the aforementioned services
in amounts in excess of those required to be provided by
Landlord pursuant to the terms of Section 12(a) above, Tenant
shall pay Landlord as Additional Rent hereunder the cost of
providing such additional quantities.
b. INTERRUPTION. Failure by Landlord to any extent to furnish any
service, or any cessation thereof, shall not render Landlord
liable in any respect for damages to either person or property,
nor be construed as an eviction of Tenant, nor work an abatement
of rent, nor relieve Tenant from fulfillment of any covenant or
agreement hereof. Notwithstanding the foregoing, however, if an
interruption of services for causes within Landlord's reasonable
control materially impairs Tenant's ability to effectively use
the Premises and if such interruption continues for more than
three (3) consecutive days or ten (10) days out of twenty (20)
day period, Tenant shall thereafter be entitled to abate rent as
to that portion of the Premises which cannot be used, until the
service is restored. Should any of the equipment or machinery
utilized in supplying the services described herein break
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down, or for any cause cease to function properly, Landlord
shall use reasonable diligence to repair same promptly, but
Tenant shall have no right to terminate this Lease, and shall
have no claim for rebate or abatement of rent or damages, on
account of any interruption in service occasioned thereby or
resulting therefrom. If any interruption of services resulting
from causes within the reasonable control of Landlord continues
for thirty (30) consecutive days or more, Tenant may terminate
this Lease by written notice given to Landlord at any time prior
to the date on which the services are restored or the
interference ceases to the extent Tenant can reasonably use and
occupy the Premises for its intended purposes. With respect to
an interruption of services which results from causes outside
the reasonable control of Landlord, if such interruption of
services continues for more than thirty (30) consecutive days,
unless the interruption is caused by Tenant, or by repairs or
alterations requested by Tenant or necessary because of acts or
omissions of Tenant (or its agents or employees), the Base Rent
and Additional Rent shall equitably abate in proportion to the
extent of the interference with Tenant's use of the Premises,
commencing on the last day of such thirty (30) day period until
the services are restored or the interference ceases to the
extent Tenant can again reasonably use and occupy the Premises
for its intended purposes, and if such interruption of services
continues for more than one hundred eighty (180) consecutive
days, Tenant may terminate this Lease by written notice given to
Landlord at any time prior to the date on which the services are
restored or the interference ceases to the extent Tenant can
again reasonably use and occupy the Premises for its intended
purposes.
13. MAINTENANCE. Landlord shall maintain, in good condition, the structural
parts of the Premises, which shall include only the foundations, bearing
and exterior walls (excluding glass), subflooring and roof (excluding
skylights), the unexposed electrical, plumbing and sewerage systems,
including those portions of the systems lying outside the Premises,
gutters and downspouts on the Building and the heating, ventilating and
air conditioning system servicing the Premises; provided, however, the
cost of all such maintenance shall be considered "Expenses" for purposes
of Section 4(c). Except as provided above, Tenant shall maintain and
repair the Premises in good condition, including, without limitation,
maintaining and repairing all walls, storefronts, floors, ceilings,
interior and exterior doors, exterior and interior windows and fixtures
and interior plumbing as well as damage caused by Tenant, its agents,
employees or invitees. Upon expiration or termination of this Lease,
Tenant shall surrender the Premises to Landlord in the same condition as
existed at the commencement of the term, except for reasonable wear and
tear or damage caused by fire or other casualty for which Landlord has
received all funds necessary for restoration of the Premises from
insurance proceeds.
14. ALTERATIONS. Tenant shall not make any alterations to the Premises other
than Tenant's initial Tenant Improvements per Exhibit F, or to the
Project, including any changes to the existing landscaping, without
Landlord's prior written consent, which shall not be unreasonably
withheld, delayed or conditioned for alterations not affecting
structural elements or materially altering Building systems. If Landlord
gives its consent to such alterations, Landlord may post notices in
accordance with the laws of the state in which the premises are located.
Any alterations made shall remain on and be surrendered with the
Premises upon expiration or termination of this Lease, except that
Landlord may, on or before expiration of the term, elect to require
Tenant to remove any alterations which Tenant may have made to the
Premises. At the time Tenant submits plans for alterations to Landlord
for Landlord's approval, Tenant may request that Landlord elect whether
such alterations shall be removed at the termination of this Lease, and
if so requested, Landlord shall make such election simultaneous with its
approval of the alterations. If Landlord elects to require removal of
the alterations, then at its own cost Tenant shall restore the Premises
to the condition designated by Landlord in its election, before the last
day of the term or within 30 days after notice of its election is given,
whichever is later.
Should Landlord consent in writing to Tenant's alteration of the
Premises, Tenant shall contract with a contractor reasonably approved by
Landlord for the construction of such alterations, shall secure all
appropriate governmental approvals and permits, and shall complete such
alterations with due diligence in compliance with plans and
specifications reasonably approved by Landlord. All work performed shall
be done in workmanlike manner and with material (when not specifically
described in the plans and specifications) of the quality and appearance
customary in the trade for first-class construction of the type in which
the Premises are located. All such construction shall be performed in a
manner which will not interfere with the quiet enjoyment of other
tenants of the Project. Tenant shall pay all costs for such construction
and shall keep the Premises and the Project free and clear of all
mechanics' liens which may result from construction by Tenant. If
requested by Landlord, Tenant shall post a bond or other security
reasonably satisfactory to Landlord to protect against liens. Tenant
will pay directly or reimburse Landlord for any reasonable cost incurred
by Landlord in reviewing plans and/or monitoring construction.
15. RELEASE AND INDEMNITY.
a. INDEMNITY. Tenant shall indemnify, defend (using legal counsel
reasonably acceptable to Landlord) and save Landlord and its
property manager harmless from all claims, suits, losses,
damages, fines, penalties, liabilities and expenses (including
Landlord's personnel and overhead costs and attorneys fees and
other costs incurred in connection with claims, regardless of
whether such claims involve litigation, but excluding
consequential damages such as lost profits) resulting from any
actual or alleged injury (including death) of any person or from
any actual or alleged loss of or damage to, any property to the
extent caused by (i) Tenant's occupation, use or improvement of
the Premises, or that of its employees, agents or contractors,
or (ii) any act or omission of Tenant or any subtenant,
licensee, assignee or concessionaire of Tenant, or of any
officer, agent, employee, guest or invitee of Tenant, or of any
such entity in or about the Premises. Tenant agrees that the
foregoing indemnity specifically covers actions brought by its
own employees. This
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indemnity with respect to acts or omissions during the term of
this Lease shall survive termination or expiration of this
Lease. The foregoing indemnity is specifically and expressly
intended to, constitute a waiver of Tenant's immunity under
Washington's Industrial Insurance Act, RCW Title 51, to the
extent necessary to provide Landlord with a full and complete
indemnity from claims made by Tenant and its employees, to the
extent provided herein. Tenant shall promptly notify Landlord of
casualties or accidents occurring in or about the Premises.
LANDLORD AND TENANT ACKNOWLEDGE THAT THE INDEMNIFICATION
PROVISIONS OF SECTION 8.b AND THIS SECTION 15 WERE SPECIFICALLY
NEGOTIATED AND AGREED UPON BY THEM.
b. LANDLORD INDEMNITY. Except as otherwise provided in this Section
15 or Section 16, Landlord shall indemnify, defend (using legal
counsel reasonably acceptable to Tenant) and save Tenant
harmless from all claims, suits, losses, fines, penalties,
liabilities and expenses (including Tenant's personnel and
overhead costs and attorneys' fees and other costs incurred in
connection with claims, regardless of whether such claims
involve litigation, but excluding consequential damages such as
lost profits) resulting from any actual or alleged injury
(including death) of any person or from any actual or alleged
loss of or damage to, any property to the extent caused by the
intentional misconduct or negligence of Landlord or of any
employee or agent of Landlord in the Common Areas. Landlord
agrees that the foregoing indemnity specifically covers actions
brought by its own employees. This indemnity with respect to
actions or omissions during the term of this Lease shall survive
termination or expiration of this Lease. The foregoing indemnity
is specifically and expressly intended to constitute a waiver of
Landlord's immunity under Washington's Industrial Insurance Act,
RCW Title 51, to the extent necessary to provide Tenant with a
full and complete indemnity from claims made by Landlord and its
employees to the extent of their negligence. LANDLORD AND TENANT
ACKNOWLEDGE THAT THE INDEMNIFICATION PROVISIONS OF SECTION 15
WERE SPECIFICALLY NEGOTIATED AND AGREED UPON BY THEM.
c. RELEASE. Tenant hereby fully and completely waives and releases
all claims against Landlord for any losses or other damages
sustained by Tenant or any person claiming through Tenant
resulting from any accident or occurrence in or upon the
Premises, including but not limited to: any defect in or failure
of Project equipment; any failure to make repairs; any defect,
failure, surge in, or interruption of Project facilities or
services; any defect in or failure of Common Areas; broken
glass; water leakage; the collapse of any Building component; or
any act, omission or negligence of co-tenants, licensees or any
other persons or occupants of the Building, provided only that
the release contained in this Section 15.b shall not apply to
claims for actual damage to persons or property (excluding
consequential damages such as lost profits) resulting directly
from Landlord's breach of its express obligations under this
Lease which Landlord has not cured within a reasonable time
after receipt of written notice of such breach from Tenant or
any of Landlord's negligent or willfull misconduct.
d. LIMITATION ON INDEMNITY. In compliance with RCW 4.24.115 as in
effect on the date of this Lease, all provisions of this Lease
pursuant to which Landlord or Tenant (the "Indemnitor") agrees
to indemnify the other (the "Indemnitee") against liability for
damages arising out of bodily injury to Persons or damage to
property relative to the construction, alteration, repair,
addition to, subtraction from, improvement to, or maintenance
of, any building, road, or other structure, project,
development, or improvement attached to real estate, including
the Premises, (i) shall not apply to damages caused by or
resulting from the sole negligence of the Indemnitee, its agents
or employees, and (ii) to the extent caused by or resulting from
the concurrent negligence of (a) the Indemnitee or the
Indemnitee's agents or employees, and (b) the Indemnitor or the
Indemnitor's agents or employees, shall apply only to the extent
of the Indemnitor's negligence; PROVIDED, HOWEVER, the
limitations on indemnity set forth in this Section shall
automatically and without further act by either Landlord or
Tenant be deemed amended so as to remove any of the restrictions
contained in this Section no longer required by then applicable
law.
e. DEFINITIONS. As used in any Section establishing indemnity or
release of Landlord, "Landlord" shall include Landlord, its
partners, officers, agents, employees and contractors, and
"Tenant" shall include Tenant and any person or entity claiming
through Tenant.
16. INSURANCE. Tenant, at its cost, shall maintain commercial general
liability and property damage insurance and products liability insurance
with a single combined liability limit of $2,000,000, insuring against
all liability of Tenant and its representatives, employees, invitees,
and agents arising out of or in connection with Tenant's use or
occupancy of the Premises. Landlord may, from time to time, require
modifications of the insurance coverages hereunder to reflect insurance
coverages commonly provided in similar projects in the area. Commercial
general liability insurance, products liability insurance and property
damage insurance shall insure performance by Tenant of the indemnity
provisions of Section 15. Landlord and its management contractor shall
be named as additional insured and the policy shall contain
cross-liability endorsements. On all its personal property, at its cost,
Tenant shall maintain a policy of standard fire and extended coverage
insurance with vandalism and malicious mischief endorsements and "all
risk" coverage on all Tenant's improvements and alterations, including
without limitation, all items of Tenant responsibility described in
Section 13 in or about the Premises, to the extent of at least 90% of
their full replacement value. The proceeds from any such policy shall be
used by Tenant for the replacement of personal property and the
restoration of Tenant's improvements or alterations. All insurance
required to be provided by Tenant under this Lease: (a) shall be issued
by Insurance companies authorized to do business in the state in which
the Premises are located with a financial rating of at least an A IX
status as rated in the most recent edition of Best's Insurance Reports;
(b) shall be issued as a primary policy; shall be on an occurrence
basis; and (d)
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shall contain an endorsement requiring at least 30 days prior written
notice of cancellation to Landlord and Landlord's lender, before
cancellation or change in coverage, scope or amount of any policy.
Tenant shall deliver a certificate or copy of such policy together with
evidence of payment of all current premiums to Landlord within 30 days
of execution of this Lease. If Tenant fails at any time to maintain the
insurance required by this Lease, and fails to cure such default within
five (5) business days of written notice from Landlord then, in addition
to all other remedies available under this Lease and applicable law,
Landlord may purchase such insurance on Tenant's behalf and the cost of
such insurance shall be Additional Rent due within ten (10) days of
written invoice from Landlord to Tenant.
Landlord and Tenant release and relieve the other, and waive their
entire right of recovery for loss or damage to property located within
or constituting a part or all of the Building or the Project to the
extent that the loss or damage is covered by (a) the injured party's
insurance, or (b) the insurance the injured party is required to carry
under this Article 16, whichever is greater. This waiver applies whether
or not the loss is due to the negligent acts or omissions of Landlord or
Tenant, or their respective officers, directors, employees, agents,
contractors, or invitees. Each of Landlord and Tenant shall have their
respective property insurers endorse the applicable insurance policies
to reflect the foregoing waiver of claims, provided however, that the
endorsement shall not be required if the applicable policy of insurance
permits the named insured to waive rights of subrogation on a blanket
basis, in which case the blanket waiver shall be acceptable.
17. DESTRUCTION. If during the term, more than 25% of the Premises or more
than 10% of either of Tenant's Buildings are destroyed from any cause,
or rendered inaccessible or unusable from any cause, Landlord may, in
its sole discretion, terminate this Lease as to the affected Building(s)
by delivery of notice to Tenant within 30 days of such event without
compensation to Tenant. If in Landlord's estimation, the Premises cannot
be restored within 120 days following such destruction, the Landlord
shall notify Tenant and Tenant may terminate this Lease by delivery of
notice to Landlord within 30 days of receipt of Landlord's notice. If
neither Landlord nor Tenant terminates this Lease as provided above,
then Landlord shall commence to restore the Premises in compliance with
then existing laws and shall complete such restoration with due
diligence. In such event, this Lease shall remain in full force and
effect, but there shall be an abatement of Base Monthly Rent and
Tenant's Share of Expenses between the date of destruction and the date
of completion of restoration, based on the extent to which destruction
interferes with Tenant's use of the Premises.
18. CONDEMNATION.
a. TAKING. If all of the Premises are taken by Eminent Domain, this
Lease shall terminate as of the date Tenant is required to
vacate the Premises and all Base and Additional Rent shall be
paid to that date. The term "Eminent Domain" shall include the
taking or damaging of property by, through or under any
governmental or statutory authority, and any purchase or
acquisition in lieu thereof, whether the damaging or taking is
by government or any other person. If, in the reasonable
judgment of Landlord, a taking of any part of the Premises by
Eminent Domain renders the remainder thereof unusable for the
business of Tenant (or the cost of restoration of the Premises
is not commercially reasonable), the Lease may, at the option of
either party, be terminated by written notice given to the other
party not more than thirty (30) days after Landlord gives Tenant
written notice of the taking, and such termination shall be
effective as of the date when Tenant is required to vacate the
portion of the Premises so taken. If this Lease is so
terminated, all Base and Additional Rent shall be paid to the
date of termination. Whenever any portion of the Premises is
taken by Eminent Domain and this Lease is not terminated,
Landlord shall at its expense proceed with all reasonable
dispatch to restore, to the extent of available proceeds issued
from the taking governmental authority and to the extent it is
reasonably prudent to do so, the remainder of the Premises to
the condition they were in immediately prior to such taking, and
Tenant shall at its expense proceed with all reasonable dispatch
to restore its personal property and all improvements made by it
to the Premises to the same condition they were in immediately
prior to such taking. The Base and Additional Rent payable
hereunder shall be reduced from the date Tenant is required to
partially vacate the Premises in the same proportion that the
Rentable Area taken bears to the total Rentable Area of the
Premises prior to taking.
b. AWARD. Landlord reserves all right to the entire damage award or
payment for any taking by Eminent Domain, and Tenant waives all
claim whatsoever against Landlord for damages for termination of
its leasehold interest in the Premises or for interference with
its business. Tenant hereby grants and assigns to Landlord any
right Tenant may now have or hereafter acquire to such damages
and agrees to execute and deliver such further instruments of
assignment as Landlord may from time to time request. Tenant
shall, however, have the right to claim from the condemning
authority and keep all compensation that may be recoverable by
Tenant on account of any loss incurred by Tenant in moving
Tenant's merchandise, furniture, trade fixtures and equipment,
provided, however, that Tenant may claim and keep such damages
only if they are awarded separately in the eminent domain
proceeding and not out of or as part of Landlord's damages.
19. ASSIGNMENT OR SUBLEASE. Tenant shall not assign or encumber its interest
in this Lease or the Premises or sublease all or any part of the
Premises or allow any other person or entity (except Tenant's authorized
representatives, employees, invitees, or guests) to occupy or use all or
any part of the Premises without first obtaining Landlord's consent,
which shall not be unreasonably withheld, delayed or conditioned. In
determining whether to consent to a proposed assignment or subletting,
Landlord may consider any commercially reasonable basis for approving or
disapproving the proposed subletting or assignment, including without
limitation any of the following: (i) whether the clientele, personnel or
foot traffic which will be generated by the business of the proposed
assignee or sublessee is consistent in
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Landlord's reasonable opinion with the businesses of other tenants of
the Building or the Project, (ii) whether the proposed assignee has a
net worth and financial strength and credit record reasonably
satisfactory to Landlord, and (iii) whether the use of the Premises by
the proposed assignee or sublessee will violate or create any potential
violation of any laws or a breach or violation of any other lease or
agreement by which Landlord is bound. No assignment or sublease shall
release Tenant from the obligation to perform all obligations under this
Lease unless otherwise agreed in writing by Landlord. Any assignment,
encumbrance or sublease without Landlord's written consent shall be
voidable and at Landlord's election, shall constitute a default. If
Tenant is a partnership, a withdrawal or change, voluntary, involuntary
or by operation of law of any partner, or the dissolution of the
partnership, shall be deemed a voluntary assignment. If Tenant consists
of more than one person, a purported assignment, voluntary or
involuntary or by operation of law from one person to the other shall be
deemed a voluntary assignment. If Tenant is a corporation, any
dissolution, merger, consolidation or other reorganization of Tenant, or
sale or other transfer of a controlling percentage of the capital stock
of Tenant, or the sale of at least 25% of the value of the assets of
Tenant shall be deemed a voluntary assignment. The phrase "controlling
percentage" means ownership of and right to vote stock possessing at
least 25% of the total combined voting power of all classes of Tenant's
capital stock issued, outstanding and entitled to vote for election of
directors. The two proceeding sentences shall not apply to corporations
the stock of which is traded through an exchange or over the counter.
One half (1/2) of any rent received by Tenant from its subtenants or
assignees in excess of the Rent payable by Tenant to Landlord under this
Lease and of any sums to be paid by an assignee to Tenant in which is
attributable to the leasehold interest, prepayment of rent or "buying
down" rent (less the costs and expenses incurred by Tenant in connection
with any such sublease or assignment) shall be paid to Landlord. If at
the time of the proposed assignment or subletting, the Project is more
than 15% vacant, then Tenant shall not charge less on the proposed
assignment or subletting than 95% of the rents being charged by Landlord
for similar spaces in the Project. For purposes of this Section 19, the
term "similar spaces in the Project" shall mean similar as to (i)
location of the floors(s) within the Project, (ii) views, (iii) types of
tenant improvements and (iv) use. If Tenant requests Landlord to consent
to a proposed assignment or subletting, Tenant shall pay to Landlord,
whether or not consent is ultimately given, $100 or Landlord's
reasonable out of pocket attorney's fees incurred in connection with
such request, whichever is greater.
Notwithstanding any other provision of this Section 19, Tenant may
sublet all or part of the Premises to its parent corporation, if any;
any subsidiary corporation of Tenant or its parent corporation; or any
corporation or other entity owned or controlled by Tenant, its parent
corporation of any subsidiary of Tenant (each an "Affiliate").
Furthermore, Tenant may assign this Lease to any Affiliates, or to any
entity resulting from a merger or consolidation with Tenant, provided
the assignee's financial condition (i.e., net worth and liquidity) is
comparable to that of Tenant immediately preceding the date of the
assignment.
No interest of Tenant in this Lease shall be assignable by involuntary
assignment through operation of law (including without limitation the
transfer of this Lease by testacy or intestacy). Each of the following
acts shall be considered an involuntary assignment: (a) if Tenant is or
becomes bankrupt or insolvent, makes an assignment for the benefit of
creditors, or institutes proceedings under the Bankruptcy Act in which
Tenant is the bankrupt party; or if Tenant is a partnership or consists
of more than one person or entity, if any partner of the partnership or
other person or entity is or becomes bankrupt or insolvent, or makes an
assignment for the benefit of creditors; or (b) if a writ of attachment
or execution is levied on this Lease; or (c) if in any proceeding or
action to which Tenant is a party, a receiver is appointed with
authority to take possession of the Premises. An involuntary assignment
shall constitute a default by Tenant and Landlord shall have the right
to elect to terminate this Lease, in which case this Lease shall not be
treated as an asset of Tenant.
20. TENANT DEFAULT.
a. EVENTS OF DEFAULT. The occurrence of any of the following shall
constitute a default by Tenant: (i) a failure to pay Rent,
Additional Rent or other charge when due, provided that Landlord
shall not exercise any of its rights under this Section 20(a)(i)
until Landlord has given Tenant notice of such default and a
cure period of five (5) business days from receipt of such
notice, and Tenant has failed to pay such Rent, Additional Rent
or other charge within such cure period provided that, with
respect to sums due other than Rent and Additional Rent; (ii)
abandonment and vacation of the Premises (failure to occupy and
operate the Premises for ten consecutive days while in monetary
default under this Lease shall be conclusively deemed an
abandonment and vacation); (iii) failure to perform any other
material provision of this Lease, provided that Landlord shall
not exercise any of its rights under this Section 20(a)(iii)
until Landlord has given Tenant notice of such default and a
cure period of thirty (30) days from receipt of such notice, and
Tenant has failed to cure such default within such cure period,
provided further that if more than thirty (30) days are required
to complete such performance, the cure period shall not be
deemed to have run so long as Tenant commences to cure such
default within the thirty (30) day period and thereafter
diligently pursues its completion; or (iv) the making by Tenant
of any general assignment or general arrangement for the benefit
of creditors or the filing by or against Tenant of a petition in
bankruptcy, including reorganization or arrangement, unless in
the case of a petition filed against Tenant and the same is
dismissed within thirty (30) days, or the appointment of a
trustee or receiver to take possession of substantially all of
Tenant's assets located at the Premises or of Tenant's interest
in this Lease. The notices required by this Section 20 are
intended to satisfy any and all notice requirements imposed by
law on Landlord and are not in addition to any such requirement.
b. LANDLORD'S REMEDIES. Landlord shall have the following remedies
if Tenant is in default. (These remedies are not exclusive; they
are cumulative and in addition to any remedies now or later
allowed by law): Landlord may terminate Tenant's right to
possession of the Premises at any time.
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No act by Landlord other than giving notice to Tenant shall
terminate this Lease. Acts of maintenance, efforts to relet the
Premises, or the appointment of a receiver on Landlord's
initiative to protect Landlord's interest under this Lease shall
not constitute a termination of Tenant's right to possession.
Upon termination of Tenant's right to possession, Landlord has
the right to recover from Tenant: (1) the worth of the unpaid
Rent that had been earned at the time of termination of Tenant's
right to possession; (2) the worth of the amount of the unpaid
Rent that would have been earned after the date of termination
of Tenant's right to possession; (3) any other amount, including
but not limited to, expenses incurred to relet the Premises,
court, attorney and collection costs, necessary to compensate
Landlord for all detriment caused by Tenant's default. "The
Worth," as used for Item (1) in this Paragraph 21 is to be
computed by allowing interest at the rate of 15 percent per
annum. If the interest rate specified in this Lease is higher
than the rate permitted by law, the interest rate is hereby
decreased to the maximum legal interest rate permitted by law.
"The Worth" as used for Item (2) in this Paragraph 21 is to be
computed by discounting the amount at the discount rate of the
Federal Reserve Bank of San Francisco at the time of termination
of Tenant's right of possession.
21. LANDLORD DEFAULT. Landlord shall not be in default unless Landlord fails
to perform its obligations within thirty (30) days after notice by
Tenant, specifying wherein Landlord has failed to perform; provided,
that if the nature of Landlord's obligation is such that more than
thirty (30) days are required for performance, Landlord shall not be in
default if Landlord commences performance within thirty (30) days of
Tenant's notice and thereafter diligently completes performance within a
reasonable time. Tenant's rights under this Lease shall be limited to
actions for damages and/or specific performance, and no default by
Landlord shall entitle Tenant to withhold or offset rent, terminate this
Lease or to engage in self-help remedies, provided only as follows: If
Landlord is in default under this Lease, and such default materially
adversely affects Tenant's ability to do business from the Premises, and
Landlord fails to cure such default within a commercially reasonable
time for emergencies and otherwise within thirty (30) days after written
notice from Tenant (provided that if such default cannot be cured with
30 days, then if Landlord fails to commence to cure with 30 days and
diligently pursue such cure to completion), then Tenant shall, upon two
(2) business days prior written notice to Landlord of Tenant's intent to
cure the default, be entitled to cure the default and the reasonable
cost of cure shall be reimbursed by Landlord to Tenant with thirty (30)
days of invoice therefor. If Landlord fails to make such reimbursement,
then any issues relating to such default and cure shall, at either
party's election, be resolved by a single-arbitrator before the American
Arbitration Association ("AAA") under the Arbitration Rules of the AAA
modified as follows: (i) the total time from date of demand for
arbitration to final award shall not exceed 25 days; (ii) the arbitrator
shall be chosen by the AAA without submittal of lists and subject to
challenge only for good cause shown; (iii) all notices may be by
telephone or other electronic communication with later confirmation in
writing; (iv) the time, date, and place of the hearing shall be set by
the arbitrator in his or her sole discretion, provided that there be at
least 3 days prior notice of the hearing; (v) there shall be no
post-hearing briefs; (vi) there shall be no discovery except by order of
the arbitrator; and (vii) the arbitrator shall issue his or her award
within 7 days after the close of the hearing. The arbitration shall be
held in the county in which the Premises is located. The decision of the
arbitrator shall be final and binding on the parties and judgment on the
award rendered by the arbitrator may be entered in any court of
competent jurisdiction. The fees and expenses of the arbitrator shall be
paid half by Landlord and half by Tenant unless the arbitrator decides
otherwise in its discretion. The parties shall each hold harmless and
indemnify the arbitrator from any claims arising in connection with the
arbitration.
22. ENTRY ON PREMISES. Landlord and its authorized representatives shall
have the right to enter the Premises at all reasonable times, with
reasonable notice given to Tenant except in the case of an emergency,
for any of the following purposes: (a) to determine whether the Premises
are in good condition and whether Tenant is complying with its
obligations under this Lease; (b) to do any necessary maintenance and to
make any restoration to the Premises or the Project that Landlord has
the right or obligation to perform; (c) to post "for sale" signs at any
time during the term, to post "for rent" or "for lease" signs during the
last 90 days of the term, or during any period while Tenant is in
default; (d) to show the Premises to prospective brokers, agents,
buyers, tenants or persons interested in leasing or purchasing the
Premises, at any time during the term; or (e) to repair, maintain or
improve the Project and to erect scaffolding and protective barricades
around and about the Premises but not so as to prevent entry to the
Premises and to do any other act or thing necessary for the safety or
preservation of the Premises or the Project. Landlord shall not be
liable in any manner for any inconvenience, disturbance, loss of
business, nuisance or other damage arising out of Landlord's entry onto
the Premises as provided in this Section 22. Tenant shall not be
entitled to an abatement or reduction of Rent if Landlord exercises any
rights reserved in this Section 22. Landlord shall conduct his
activities on the Premises as provided herein in a commercially
reasonable manner so as to limit inconvenience, annoyance or disturbance
to Tenant to the maximum extent practicable and to execute
confidentiality agreements relating to entering areas Tenant keeps
secure for intellectual property reasons. For each of these purposes,
Landlord shall at all times have and retain a key with which to unlock
all the doors in, upon and about the Premises, excluding Tenant's vaults
and safes. Tenant shall not alter any lock or install a new or
additional lock or bolt on any door of the Premises without prior
written consent of Landlord. If Landlord gives its consent, Tenant shall
furnish Landlord with a key for any such lock.
23. SUBORDINATION. Without the necessity of any additional document being
executed by Tenant for the purpose of effecting a subordination, and at
the election of Landlord or any mortgagee or any beneficiary of a Deed
of Trust with a lien on the Project or any ground lessor with respect to
the Project, this Lease shall be subject and subordinate at all times to
(a) all ground leases or underlying leases which may now exist or
hereafter be executed affecting the Project, and (b) the lien of any
mortgage or deed of trust which may now exist or hereafter be executed
in any amount for which the Project, ground leases or underlying leases,
or Landlord's interest or estate in any of said items is specified as
security. This subordination shall be self operative, provided that so
long as Tenant is not in default hereunder beyond the applicable Section
20 cure
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period, Tenant shall have continued enjoyment of the Premises free from
any disturbance or interruption by reason of any foreclosure of Lender's
deed of trust or mortgage. In the event that any ground lease or
underlying lease terminates for any reason or any mortgage or Deed of
Trust is foreclosed or a conveyance in lieu of foreclosure is made for
any reason, Tenant shall, notwithstanding any subordination, attorn to
and become the Tenant of the successor in interest to Landlord, at the
option of such successor in interest. Tenant covenants and agrees to
execute and deliver, upon demand by Landlord and in the form requested
by Landlord any additional documents evidencing the priority or
subordination of this Lease with respect to any such ground lease or
underlying leases or the lien of any such mortgage or Deed of Trust,
subject to the non-disturbance provisions contained herein. If Tenant
fails to deliver such subordination document as required herein, then
Tenant hereby irrevocably appoints Landlord as attorney-in-fact of
Tenant to execute, deliver and record any such document in the name and
on behalf of Tenant.
Tenant, within ten days from notice from Landlord, shall execute and
deliver to Landlord, in recordable form, certificates stating that this
Lease is not in default, is unmodified and in full force and effect, or
in full force and effect as modified, and stating the modifications.
This certificate should also state the amount of current monthly Rent,
the dates to which Rent has been paid in advance, and the amount of any
security deposit and prepaid Rent. Failure to deliver this certificate
to Landlord within ten days shall be conclusive upon Tenant that this
Lease is in full force and effect and has not been modified except as
may be represented by Landlord.
24. NOTICE. Any notice, demand or request required hereunder shall be given
in writing to the party's facsimile number or address set forth in
Section 1 hereof by any of the following means: (a) personal service;
(b) electronic communication, whether by telex, telegram or facsimile;
(c) overnight courier; or (d) registered or certified, first class mail,
return receipt requested. Such addresses may be changed by notice to the
other parties given in the same manner as above provided. Any notice,
demand or request sent pursuant to either subsection (a) or (b) hereof
shall be deemed received upon such personal service or upon dispatch by
electronic means with electronic confirmation of receipt. Any notice,
demand or request sent pursuant to subsection (c) hereof shall be deemed
received on the business day immediately following deposit with the
overnight courier and, if sent pursuant to subsection (d), shall be
deemed received forty-eight (48) hours following deposit in the U.S.
mail.
25. WAIVER. No delay or omission in the exercise of any right or remedy by
Landlord shall impair such right or remedy or be construed as a waiver.
No act or conduct of Landlord, including without limitation, acceptance
of the keys to the Premises, shall constitute an acceptance of the
surrender of the Premises by Tenant before the expiration of the term.
Only written notice from Landlord to Tenant shall constitute acceptance
of the surrender of the Premises and accomplish termination of the
Lease. Landlord's consent to or approval of any act by Tenant requiring
Landlord's consent or approval shall not be deemed to waive or render
unnecessary Landlord's consent to or approval of any subsequent act by
Tenant. Any waiver by Landlord of any default must be in writing and
shall not be a waiver of any other default concerning the same or any
other provision of the Lease. TENANT SPECIFICALLY ACKNOWLEDGES AND
AGREES THAT, WHERE TENANT HAS RECEIVED A NOTICE TO CURE DEFAULT (WHETHER
RENT OR NON-RENT), NO ACCEPTANCE BY LANDLORD OF RENT SHALL BE DEEMED A
WAIVER OF SUCH NOTICE, AND, INCLUDING BUT WITHOUT LIMITATION, NO
ACCEPTANCE BY LANDLORD OF PARTIAL RENT SHALL BE DEEMED TO WAIVE OR CURE
ANY RENT DEFAULT. LANDLORD MAY, IN ITS DISCRETION, AFTER RECEIPT OF
PARTIAL PAYMENT OF RENT, REFUND SAME AND CONTINUE ANY PENDING ACTION TO
COLLECT THE FULL AMOUNT DUE, OR MAY MODIFY ITS DEMAND TO THE UNPAID
PORTION. IN EITHER EVENT THE DEFAULT SHALL BE DEEMED UNCURED UNTIL THE
FULL AMOUNT IS PAID IN GOOD FUNDS.
26. SURRENDER OF PREMISES; HOLDING OVER. Upon expiration of the term, Tenant
shall surrender to Landlord the Premises and all Tenant improvements and
alterations in good condition, except for ordinary wear and tear and
alterations Tenant has the right or is obligated to remove under the
provisions of Section 14 herein. Tenant shall remove all personal
property including, without limitation, all data and phone wires and
other improvements which Landlord has required Tenant to remove pursuant
to Section 14 or Exhibit F of this Lease. Landlord can elect to retain
or dispose of in any manner Tenant's personal property not removed from
the Premises by Tenant prior to the expiration of the term. Tenant
waives all claims against Landlord for any damage to Tenant resulting
from Landlord's retention or disposition of Tenant's personal property.
Tenant shall be liable to Landlord for Landlord's cost for storage,
removal or disposal of Tenant's personal property.
If Tenant, with Landlord's consent, remains in possession of the
Premises after expiration or termination of the term, or after the date
in any notice given by Landlord to Tenant terminating this Lease, such
possession by Tenant shall be deemed to be a month-to-month tenancy
terminable as provided under Washington law, by either party. All
provisions of this Lease, except those pertaining to term and Rent,
shall apply to the month-to-month tenancy. During any holdover term,
Tenant shall pay Base Monthly Rent in an amount equal to 150% of Base
Monthly Rent for the last full calendar month during the regular term
plus 100% of Tenant's share of Expenses pursuant to Section 4(c)(3).
27. LIMITATION OF LANDLORD'S LIABILITY. In consideration of the benefits
accruing hereunder, Tenant agrees that, in the event of any actual or
alleged failure, breach or default of this Lease by Landlord, Landlord's
liability under this Lease shall be limited to, and Tenant shall look
only to Landlord's interest in the Project and the rents and proceeds
thereof.
28. MISCELLANEOUS PROVISIONS.
a. TIME OF ESSENCE. Time is of the essence of each provision of
this Lease.
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b. AUTHORITY. If Tenant is a corporation, Tenant will deliver to
Landlord, contemporaneously with this Lease, an authorizing
resolution by Tenant's Board of Directors, authorizing the
person(s) executing this Lease to do so, or other evidence of
such person(s) authority as is reasonably satisfactory to
Landlord.
c. SUCCESSORS. This Lease shall be binding on and inure to the
benefit of the parties and their successors, except as provided
in Section 19 herein.
d. LANDLORD'S CONSENT. Except as otherwise specifically provided
herein, any consent required by Landlord under this Lease must
be granted in writing and may be withheld by Landlord in its
sole and absolute discretion unless otherwise provided herein.
e. COMMISSIONS. Each party represents that it has not had dealings
with any real estate broker, finder or other person with respect
to this Lease in any manner, except for the broker identified in
Section 1(p), who shall be compensated by the party identified
in Section 1(p). Landlord and Tenant recognize that it is
possible that they may hereafter make additional agreements
regarding further extension or renewal of this Lease or a new
lease or leases for all or one or more parts of the Premises or
other space in the Project for a term or terms commencing after
the Commencement Date of this Lease. Landlord and Tenant
recognize that it is also possible that they may hereafter
modify this Lease to add additional space or to substitute space
as part of the Premises. If any such additional agreements, new
leases or modifications to this Lease are made (except for the
space leased in Buildings Two and Three per the terms of this
Amended and Restated Lease), unless otherwise agreed in writing
by Landlord, Landlord shall not have any obligation to pay any
compensation to any real estate broker or to any other third
person engaged by Tenant to render services to Tenant in
connection with negotiating such matters, regardless of whether
under the circumstances such person is or is not regarded by the
law as an agent of Landlord.
f. OTHER CHARGES. If either party commences any litigation against
the other party or files an appeal of a decision arising out of
or in connection with the Lease, the prevailing party shall be
entitled to recover from the other party reasonable attorney's
fees and costs of suit. If Landlord employs a collection agency
to recover delinquent charges, Tenant agrees to pay all
collection agency and attorneys' fees charged to Landlord in
addition to Rent, late charges, interest and other sums payable
under this Lease. Tenant shall pay a charge of $75 to Landlord
for preparation of a demand for delinquent Rent.
g. FORCE MAJEURE. Neither party shall be deemed in default hereof
nor liable for damages arising from its failure to perform its
duties or obligations hereunder if such is due to causes beyond
its reasonable control, including, but not limited to, acts of
God, acts of civil or military authorities, fires, floods,
windstorms, earthquakes, strikes or labor disturbances, civil
commotion, delays in transportation, governmental delays or war,
provided nothing in this subparagraph shall limit or otherwise
modify or waive Tenant's obligation to pay Base Rent and
Additional Rent as and when due pursuant to the terms of this
Lease, or Landlord's obligation to timely make any payments
which Landlord is required to make to Tenant pursuant to this
Lease.
h. RULES AND REGULATIONS. Tenant shall faithfully observe and
comply with such commercially reasonable, non-discriminatory
"Rules and Regulations" as Landlord may from time to time adopt
by written notice. Landlord shall not be responsible to Tenant
for the violation or non-performance by any other tenant or
occupant of the buildings or Project of said tenant or
occupant's lease or of any of said Rules and Regulations.
i. LANDLORD'S SUCCESSORS. In the event of a sale or conveyance by
Landlord of the Project, the same shall operate to release
Landlord from any liability under this Lease from and after the
date of the sale or conveyance, and in such event Landlord's
successor in interest shall be solely responsible for all
obligations of Landlord under this Lease.
j. INTERPRETATION. This Lease shall be construed and interpreted in
accordance with the laws of the state in which the Premises are
located. This Lease constitutes the entire agreement between the
parties with respect to the Premises and the Project, except for
such guarantees or modifications as may be executed in writing
by the parties from time to time. When required by the context
of this Lease, the singular shall include the plural, and the
masculine shall include the feminine and/or neuter. "Party"
shall mean Landlord or Tenant. If more than one person or entity
constitutes Landlord or Tenant, the obligations imposed upon
that party shall be joint and several. The enforceability,
invalidity or illegality of any provision shall not render the
other provisions unenforceable, invalid or illegal.
k. CLEAN AIR ACT. Tenant acknowledges that Landlord has not made
any portion of the Premises or Tenant's Buildings accessible for
smoking in compliance with WAC 296-62-12000. If Tenant wishes to
make any portion of the Premises accessible for smoking, Tenant
shall make all improvements necessary to comply with all
applicable governmental rules and regulations. Tenant
acknowledges that the indemnity contained in Section 15 of the
Lease includes, but is not limited to claims based on the
presence of tobacco smoke as a result of the activities of
Tenant, its employees, agents, or guests.
29. OPTION TO EXTEND. So long as Tenant is not in material default under the
terms of the Lease, Tenant shall have the right to extend the term of
the Lease for two (2) additional terms of five (5) years each (the
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"Extension Terms"). Tenant agrees to notify Landlord in writing of
Tenant's intent to renew not more than twenty-four (24) and not less
than eighteen (18) months prior to the termination of the then current
lease term. The rental rate during the Extension Terms shall be equal to
the then Fair Market Rental Rate (adjusted for lease concessions) for
comparable space located in Lower Queen Anne, Seattle, Washington.
Within thirty (30) days following Tenant's notice to Landlord of
Tenant's desire to extend the Lease, Landlord shall notify Tenant of the
proposed Extended Term Base Rent, which shall be equal to the then Fair
Market Rental Rate of the Premises. Fair Market Rental Rate shall be
defined as the annual Base Rent (projected in reference to the date of
the commencement of the payment of annual rental to which it applies)
which Tenant would expect to pay and Landlord would expect to receive
under leases of space of comparable size and quality to the Premises and
as provided for in and on terms and conditions comparable to, this Lease
covering premises similar to the Premises. Tenant shall have thirty (30)
days following receipt of Landlord's notice of the proposed Extended
Term Base Rent, in which to accept such determination; or to agree with
Landlord on a stipulated Fair Market Rental Rate.
If Tenant notifies Landlord, within the aforesaid thirty (30) day
period, that Tenant disputes the Prevailing Market Rate quoted by
Landlord, the parties shall, during the following thirty (30) days,
negotiate in good faith to determine the Annual Base Rent for the
renewal Term. If within said thirty-day period the parties are unable to
agree on the Annual Base Rent, then within ten (10) days thereafter,
each party shall select a qualified appraiser experienced in appraising
commercial rental properties in the vicinity of Tenant's Buildings, who
shall submit appraisals for the Premises within thirty (30) days of
their appointment. If the difference between the appraisals is five
percent (5%) or less, the Prevailing Market Rate shall be determined to
be the average of the two appraisals. If the difference is greater than
five percent (5%), then the two appraisers shall select a third
qualified appraiser who shall submit an appraisal within the thirty (30)
days following the submission of the first appraisals. The Prevailing
Market Rate shall then be the average of the two (2) closest appraisals.
The fees of each appraiser shall be paid by the party appointing the
appraiser and the fees of the third appraiser, if any, shall be shared
equally by the parties.
The option shall be void if, at the time of exercise of such option,
Tenant is not in possession of the Premises or is in default under this
Lease or if Tenant fails to deliver the requisite notice thereof within
the time period specified above. The option granted herein shall not be
severed from this Lease, separately sold, assigned, or transferred.
30. RENT ABATEMENT. Notwithstanding anything to the contrary contained
herein, Tenant shall not be liable for the payment of Annual Base Rent
or Tenant's Share of Operating Costs for that 28,741 square feet of
rentable area of the Premises identified as Floor 3 of Building Three
(Rental Abatement Space), for the period commencing with the
Commencement Date applicable to such floor and ending on the earlier of
(a) the commencement of month thirteen (13) after said Commencement Date
or (b) the date that Tenant takes beneficial occupancy of the Rental
Abatement Space. Should Tenant occupy less than the full floor prior to
the commencement of month thirteen (13), then the Annual Base Rent and
Tenant's Share of Operating Costs set forth for the Rental Abatement
Space shall be charged only for that portion of the Rental Abatement
Space being occupied. Tenant covenants and agrees to notify Landlord
immediately at such time as Tenant occupies the Rental Abatement Space.
As used herein, "occupancy" means any use of the floor by Tenant for
other than installation of furniture, fixtures and equipment;
"occupancy" shall include use of the floor for storage or any other
business use. Upon commencement of the thirteenth (13th) month after the
lease Commencement Date for the Rental Abatement Space, the full rent as
provided for in this Amended and Restated Lease, shall be due and
payable no matter how much of the Rental Abatement Space is occupied.
Tenant shall be permitted to sublease the Rental Abatement Space per the
terms and conditions of Section 19, Assignment or Sublease, and such a
sublease shall not constitute occupancy of the Rental Abatement Space as
used within this Section 30. If the Rental Abatement Space is subleased,
the rental abatement with respect to the subleased area shall provide
only for abatement of Annual Base Rent and Tenant shall be responsible
for Tenant's Share of Operating Costs.
It is anticipated that Tenant will complete its tenant improvements per
the terms of Section 31, Tenant Improvement Allowance, and Exhibit F,
Tenant Work Letter, for its entire Premises in a continuous fashion.
However, Tenant may elect to delay the improvements to the Rental
Abatement Space. If Tenant does delay said improvements, Tenant shall
provide Landlord six (6) months prior written notice of the desired
occupancy date in order to allow for the completion of tenant
improvements of the Rental Abatement Space.
31. TENANT IMPROVEMENT ALLOWANCE. Landlord shall provide Tenant with an
allowance (the "Tenant Improvement Allowance") of up to Thirty Dollars
($30.00) per Rentable Square Foot of the Premises. The Tenant
Improvement Allowance may be used only for actual out-of-pocket costs of
labor and materials (including Washington State Sales Tax), and for all
professional design services necessary for the design and permitting of
the Tenant Work, provided by qualified third party contractors approved
by Landlord for construction of the Tenant Work, which approval will not
be unreasonably withheld, delayed or conditioned. The Tenant Work and
method of payment is set forth in Exhibit F hereto.
32. ARCHITECTURAL AND ENGINEERING SERVICES. Landlord shall provide Tenant
with an allowance for schematic space plans performed by an approved
space planner up to a maximum amount of $.12 per rentable square foot of
the Premises. This design allowance shall be paid by Landlord within
twenty (20) days after invoice by Tenant with reasonable documentation
showing costs actually incurred.
33. [Intentionally Deleted]
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34. RIGHT OF FIRST OFFER. So long as Tenant is not in material default under
the terms of the lease, then during the term of this Lease and any
extensions thereof, Tenant shall have a Right of First Offer (ROFO) to
lease additional space as follows:
This ROFO shall be subject to expansion and extension rights of other
tenants of the Project existing as of March 30, 2000, and to the right
of any tenant to renew its lease for its then-existing premises. Except
as provided in the preceding sentence, this ROFO shall apply (i) to any
space coming vacant in the Project, and, (ii) if Landlord, in its sole
discretion develops any additional buildings in the Project, to any
space in such new buildings (collectively "ROFO Space").
At such time as Landlord intends to offer ROFO Space for lease, Landlord
shall so notify Tenant, which notice shall include the description of
the ROFO Space, and the terms (rate, term, etc.) on which Landlord
intends to offer the ROFO Space. Tenant shall have ten (10) business
days from receipt of such notice to notify Landlord that Tenant agrees
to enter into a lease for the ROFO Space on the terms stated in
Landlord's notice or to enter into a lease for the ROFO Space on such
other terms as may be mutually agreeable to Landlord and Tenant in their
sole discretion. Unless otherwise agreed between Landlord and Tenant,
Tenant's lease must be of the entire ROFO Space being offered. If Tenant
does not enter into a lease for the ROFO Space as provided above, this
Right of First Offer shall immediately and without further action by
Landlord terminate as to the ROFO Space being offered. This Right of
First Offer shall be personal to Tenant and shall not be exercisable by
any assignee or sublessee, except an assignee/successor to Tenant's
business by merger or acquisition. Tenant shall be free during any
ongoing period in which the ROFO Space remains unleased to request that
Landlord re-open discussions with Tenant, which Landlord shall do,
subject to any ongoing discussions that Landlord may then or thereafter
engage in with other prospective tenants.
35. RIGHT TO TERMINATE AS TO BUILDING TWO. So long as Tenant is not in
material default under the terms of this Lease, Tenant shall have a one
time right (the "Early Termination Right") to terminate the Lease as to
Building Two effective on July 31, 2007 (the "Early Termination Date")
subject to the conditions contained in this Section. In order to
exercise its Early Termination Right, Tenant shall provide Landlord with
written notice ("the Notice") by July 31, 2006 (at least twelve (12)
months' notice). If Tenant exercises its Early Termination Right, Tenant
shall, within thirty (30) days of delivery of the Notice to Landlord,
pay to Landlord Landlord's unamortized costs (based upon a twelve (12)
year amortization period and an interest rate of eight percent (8%) per
annum) including, but not limited to, the Tenant Improvement Allowance,
Schematic Space Plan Allowance and real estate commissions in connection
with the initial lease of Building Two to Tenant (the "Unamortized
Costs"). If Tenant exercises its Early Termination Right, it shall be
obligated to perform all obligations under the Lease and pay all amounts
due under the Lease through the Early Termination Date, provided only
that if during the period between the Notice and the Early Termination
Date, Landlord enters into a lease with a third party for all or a
portion of Building 2 and Landlord and Tenant agree on an earlier
termination of the Lease with respect to such space such that the third
party lease can commence prior to the Early Termination Date, then the
Early Termination Date with respect to such space shall be accelerated
to the date agreed between Landlord and Tenant, and Tenant's obligations
for the period between such accelerated Early Termination Date and the
originally-scheduled Early Termination Date with respect to such space
shall be the amounts that would have been due from Tenant during such
period reduced by the amount of base monthly rent and additional rent
actually paid to Landlord by the third party tenant net of Landlord's
amortization (over the term of the new lease) of Landlord's costs of
obtaining the new lease, including but not limited to new tenant
improvements, commission, and space planning. On the Early Termination
Date (or Dates, if there is additional acceleration due to releasing as
provided above) the Lease shall terminate with respect to the affected
spaces (and ultimately all of Building Two) as by expiration of its
term, and those terms of the Lease dependent on the leasing of Building
Two (e.g. Base Monthly Rent, Tenant's Share of Expenses, Parking) shall
be adjusted to reflect the deletion from the Lease of the applicable
rentable Square Footage of Building Two.
Tenant may exercise its Early Termination Right under any of the
following conditions:
a. CONTRACTION OF THE PREMISES. If Tenant wishes to occupy a
smaller premises within Building Two, Tenant shall submit a
written request to Landlord, within thirty (30) days of the
Notice, to have the size of the Premises within Building Two
reduced to the size specified by Tenant. Landlord will notify
Tenant of its decision whether to grant Tenant's request within
sixty (60) days of receipt of such request. If Landlord elects
to reduce the size of the Premises, Tenant will be required to
pay Landlord's Unamortized Costs, as described above, within
thirty (30) days of Landlord's notice that it will allow the
size of the Premises within Building Two to be reduced, provided
that the amount of such Unamortized Costs shall be prorated
based on the size of the reduced Premises within Building Two.
If Landlord declines Tenant's request so to reduce the Premises,
then Tenant may exercise its Early Termination Right as
described above.
b. CESSATION OF BUSINESS. Tenant or any successor entity ceases
having its main administrative offices in the Seattle-Bellevue
Metropolitan area.
Tenant and Landlord agree that this Early Termination Right is not to be
used to facilitate the move of Tenant from 401 Elliott West to another
building in the Seattle-Bellevue Metropolitan area prior to the end of
the initial Lease term except as stated in this Section.
36. EARLY POSSESSION. Tenant shall have the non-exclusive right to possess
the Premises thirty (30) days prior to the Commencement Date for each
applicable Phase for the purpose of the installation of Tenant's
furniture, fixtures and equipment. Tenant shall not be charged base
monthly rent or operating expense charges for such Phase during said
Early Possession period. Tenant shall coordinate its move-in activities
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with the contractor's working on the site so as not to impede the final
completion of the Shell & Core Improvements, including punch list type
activities. Tenant shall be responsible for the removal and disposal of
Tenant's furniture and fixture vendor's cartons and trash.
37. TENANT SIGNAGE. Tenant shall have the right, at Tenant's expense, to
install dominant building signage on Tenant's Buildings as long as it
leases in excess of fifty percent (50%) of the rentable area of each of
Tenant's Buildings. Tenant's signage shall be subject to all
governmental codes and Landlord's prior written approval, which approval
will not be unreasonably withheld, delayed or conditioned for signage
consistent with the Landlord's architectural principles for the Project.
Landlord shall have the right to withhold its approval of any sign(s)
which in its reasonable judgment are not harmonious with the design
standard of the Buildings. A signage exhibit, providing more detail to
size and location, is further detailed in Exhibit D. Tenant shall have
the following signage opportunities:
a. Install one sign on the Building Two marquee above the entry on
the south side of the Building.
b. Install two exclusive, back lighted, pin-mounted signs on the
top parapet of each of Tenant's Buildings; one sign per wall, on
the South, West or East elevations (i.e. 2 of those three
walls).
c. Install identity graphics on the exterior walls of the Building
Two garage elevator lobby.
38. FIBER OPTICS. Tenant shall have the right to install satellite dishes,
fiber optics and related equipment for Tenants sole use at Tenant's sole
cost, expense and liability, subject to Landlord's approval of the
location and method of installation, which shall not be unreasonably
withheld or delayed for installations that do not interfere with other
electronic installations on the Buildings. Tenant's rights pursuant to
this Section shall include the right to make reasonable replacements,
upgrades and additions subject to the terms of this Section.
39. USE OF THE ROOF FOR BUSINESS PURPOSES. Tenant shall have the right to
enter on the roof of Tenant's Buildings from time to time, in accordance
with the provisions of this Section and with the prior approval of
Landlord, for the purpose of installing and maintaining, at Tenant's
sole cost and expense, equipment in connection with Tenant's use of the
Premises (the "Tenant's Equipment") at locations, designated by
Landlord. Tenant shall submit drawings, specifications, and installation
data for Tenant's Equipment to Landlord for its approval prior to
installation.
Installation of Tenant's Equipment shall be accomplished under the
direct supervision of Landlord and in accordance with reasonable rules
and regulations prescribed by Landlord. Tenant's Equipment shall be
grounded in accordance with Underwriters Laboratories, Inc.
requirements.
Tenant shall make no penetration of Tenant's Buildings' roof during
installation or removal of Tenant's Equipment without the prior written
consent of Landlord. Tenant shall be responsible for the cost of
repairing all damages to Landlord's property caused by the installation,
operation, repair, or removal of Tenant's Equipment, except to the
extent caused by Landlord, its contractors, or employees. Furthermore,
in the event Landlord determines that either of Tenant's Buildings roof
must be repaired or resealed as a direct or indirect result of the
installation, maintenance, repair, or removal of Tenant's Equipment,
except to the extent caused by Landlord, its contractors, or employees,
all such repairing and/or resealing shall be performed by Landlord's
designated contractor at Tenant's sole cost and expense.
Upon termination of this Lease, Tenant, at its sole cost, shall remove
Tenant's Equipment from the roof of Tenant's Buildings, subject to the
provisions of this Section. Removal of Tenant's Equipment shall be done
in a manner satisfactory to Landlord.
If access to Tenant's Buildings roof is required by Tenant at times
other than normal business hours, Landlord reserves the right to charge
Tenant any actual costs incurred by Landlord for overtime wages to
Landlord's employees or contractors.
Tenant shall obtain and maintain all necessary FCC licenses, if any, and
all other governmental approvals, licenses, and permits required to
operate Tenant's Equipment, which operation shall not interfere with the
quiet enjoyment of the tenants within Tenant's Buildings.
Tenant agrees that Landlord hereafter shall have the right to install
and to grant others the right to install transmitting equipment,
satellite dishes, antennae, and similar equipment on the roof of
Tenant's Buildings, so long as neither the installation nor operation of
such equipment interferes with the operation of Tenant's Equipment.
Tenant agrees that transmissions from Tenant's Equipment shall not cause
interference with transmissions of other persons currently operating
communications equipment in the Business Community. Upon written
notification from Landlord of such interference, Tenant shall
immediately stop operation of Tenant's Equipment and not resume
operation until such interference is cured. Any future agreement
granting another tenant of Tenant's Buildings or any other person the
right to make rooftop installations shall contain a covenant by such
other tenant or person that its installation and operation of rooftop
equipment will not interfere with the operation of Tenant's Equipment,
and that if such interference occurs, such other tenant or other user
shall cease installation or operation of its equipment until such
interference is cured.
40. [INTENTIONALLY DELETED].
41. TENANT PARKING. Notwithstanding the provisions of Section 11.a
designating parking as non-exclusive,
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four (4) parking spaces located under the footprint of Building Two and
five (5) parking spaces located under the footprint of Building Three,
all reasonably close to the respective Building's elevator may be
reserved by Tenant to be designated as F5 Network spaces and shall be
counted against the parking stalls allocated to Tenant pursuant to
Section 11.a.
42. EMERGENCY POWER GENERATOR. The Premises shall include an electrical
generator pad located by Landlord at the exterior of Building Three west
of the loading dock area (the "Generator Pad"). The Generator Pad shall
be constructed by Tenant in accordance with plans approved in advance by
Landlord, which approval will not be unreasonably withheld, delayed or
conditioned, and which plans shall include fencing and such curbing as
is necessary to contain any fuel spill. Tenant may install on the
Generator Pad a backup generator and fuel tank (collectively the
"Generator"), the make, model and design of which shall be subject to
Landlord's prior approval, which approval will not be unreasonably
withheld, delayed or conditioned. The design and operation of the
Generator and Generator Pad shall be such as to avoid material
interference with other tenants (whether due to vibration, noise, fumes,
or otherwise) resulting from operation of the Generator. The Generator
shall be used only for periodic testing and in the event Tenant's
primary electrical service is interrupted for any reason. All testing
shall take place at times reasonably selected to minimize interference
with other tenants. The Generator shall be used only for backup power,
and may not be used as a primary power source, nor may it be used by any
occupant of any other premises. The Generator Pad and the Generator
shall be subject to all terms and conditions of this Lease, including
but not limited to Sections 8, 15, and 16, provided only that the square
footage of the Generator Pad shall not be utilized in calculating the
Premises Rentable Area for the purpose of calculating Base Rent or
allocating Expenses between the Premises and any larger parcel. Upon
expiration or earlier termination of this Lease, Tenant shall remove all
improvements and equipment from the Generator Pad and shall restore same
to a clean, paved condition, and shall provide such studies or other
information as is necessary to demonstrate to Landlord's reasonable
satisfaction that there has been no environmental contamination on the
Generator Pad as a result of the storage and operation of the generator
and fuel tank thereon.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the day
and year first above written.
Landlord: 401 ELLIOTT WEST L.L.C.
By: CHERLIN L.L.C.,
Its: Manager and Member
By: /s/ RICHARD L. CARSON
------------------------------
Richard L. Carson
Its: Managing Member
By: KMC-ONE, L.L.C.
Its: Member
By: /s/ STEPHEN K. KOEHLER
------------------------------
Stephen K. Koehler, President, Koehler McFadyen & Company
Its: Managing Member
Tenant: F5 NETWORKS, INC.
By: /s/ ROBERT J. CHAMBERLAIN
------------------------------
Its: VP FINANCE - CFO
-----------------------------
By:
------------------------------
Its:
-----------------------------
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STATE OF WASHINGTON )
)ss.
COUNTY OF KING )
I certify that I know or have satisfactory evidence that RICHARD L.
CARSON and STEPHEN K. KOEHLER are the persons who appeared before me, and said
persons acknowledged that they signed this instrument, on oath stated that they
were authorized to execute the instrument and acknowledged it as the Managing
Member on behalf of CHERLIN LLC and KMC-ONE LLC and Member of 401 ELLIOTT WEST
LLC to be the free and voluntary act of such party for the uses and purposes
mentioned in the instrument.
Dated: 6-01-01
/s/ POLLY P. HUTCHINSON
---------------------------------------
(Signature)
Polly P. Hutchinson
---------------------------------------
(Print Name)
Notary Public, in and for the State
of Washington, residing at Carnation
My Commission Expires 6-01-01
STATE OF WASHINGTON )
)ss.
COUNTY OF KING )
I certify that I know or have satisfactory evidence that ROBERT J.
CHAMBERLAIN is the person who appeared before me, and said persons acknowledged
that they signed this instrument, on oath stated that they were authorized to
execute the instrument and acknowledged it as the CFO and V.P. FINANCE of F5
NETWORKS, INC. to be the free and voluntary act of such party for the uses and
purposes mentioned in the instrument.
Dated: 04/03/00
/s/ BRIAN R. DIXON
---------------------------------------
(Signature)
Brian R. Dixon
---------------------------------------
(Print Name)
Notary Public, in and for the State
of Washington, residing at Seattle, WA.
My Commission Expires 07-01-00
23
