\n1. DEFINITIONS……………………………………………………………….. 4
\n2. AGREEMENT TO LEASE…………………………………………………………. 5
\n3. CONDITION OF PREMISES………………………………………………………. 5
\n 3.1 Existing Condition…………………………………………………… 5
\n 3.2 Lessor’s Work……………………………………………………….. 5
\n 3.3 Lessee’s Work……………………………………………………….. 6
\n4. TERM……………………………………………………………………… 6
\n 4.1 Initial Term………………………………………………………… 6
\n 4.2 Holding Over………………………………………………………… 6
\n5. RENT……………………………………………………………………… 6
\n 5.1 Base Rent…………………………………………………………… 6
\n 5.2 Additional Rent for Operating Expenses…………………………………. 6
\n 5.2.1 Definition of Expenses………………………………………. 6
\n 5.2.2 Arbitration of Expense Disputes………………………………. 7
\n 5.2.3 Payment of Expenses…………………………………………. 8
\n 5.2.4 Adjustment of Lessee’s Share…………………………………. 9
\n 5.2.5 Proration of Expenses……………………………………….. 9
\n 5.2.6 Lessor’s Books and Records…………………………………… 9
\n 5.3 Intentionally Deleted………………………………………………… 9
\n 5.4 Late Charges………………………………………………………… 9
\n 5.5 Security Deposit…………………………………………………….. 9
\n6. TAXES……………………………………………………………………..10
\n 6.1 Real Property Taxes…………………………………………………..10
\n 6.2 Business and License Taxes…………………………………………….10
\n 6.3 Personal Property Taxes……………………………………………….10
\n7. USE OF PREMISES…………………………………………………………….11
\n 7.1 Permitted Uses……………………………………………………….11
\n 7.2 Compliance with Laws………………………………………………….11
\n 7.3 Intentionally Deleted…………………………………………………11
\n 7.4 Intentionally Deleted…………………………………………………11
\n 7.5 Prohibited Uses………………………………………………………11
\n 7.5.1 Interference with Lessee……………………………………..11
\n 7.5.2 Waste………………………………………………………11
\n 7.5.3 Violation of Law…………………………………………….11
\n 7.5.4 Increase in Insurance Premiums………………………………..11
\n 7.5.5 Hazardous Substances…………………………………………11
\n 7.5.6 Signage…………………………………………………….12
\n 7.6 Lessee’s Construction…………………………………………………12
\n 7.7 Lessor’s Reservations…………………………………………………12
\n 7.7.1 Use of Appurtenant Improvements……………………………….12
\n 7.7.2 Lessor’s Alterations and Additions…………………………….12
\n 7.7.3 Lessor’s Excavation………………………………………….12
\n 7.7.4 Entry by Lessor……………………………………………..13
\n 7.7.5 Common Areas and Facilities…………………………………..13
\n8. LESSEE’S ALTERATIONS AND ADDITIONS……………………………………………13
\n9. MAINTENANCE………………………………………………………………..14
\n 9.1 Lessor’s Obligations………………………………………………….14
\n 9.2 Lessee’s Obligations………………………………………………….14
\n10. LIENS……………………………………………………………………..14
\n11. UTILITIES………………………………………………………………….15
\n 11.1 Services Provided…………………………………………………….15
\n 11.2 Interruption of Services………………………………………………15
\n12. LESSEE’S ASSUMPTION OF RISK AND INDEMNITY……………………………………..15
\n 12.1 Lessor Not Liable…………………………………………………….15
\n 12.2 Lessee’s Indemnification………………………………………………15
\n 12.3 Waiver of Subrogation…………………………………………………16
\n 12.4 Liability Insurance…………………………………………………..16
\n13. RECONSTRUCTION OF DAMAGE BY CASUALTY………………………………………….17
\n 13.1 Repair Requirements; Abatement of Rent………………………………….17
\n 13.2 Cancellation of Lease…………………………………………………17
\n 13.3 Repair of Lessee’s Property……………………………………………17
\n14. EMINENT DOMAIN……………………………………………………………..17
\n 14.1 Total Condemnation……………………………………………………17
\n 14.2 Partial Condemnation………………………………………………….17
\n 14.3 Lessor’s Damages……………………………………………………..18
\n 14.4 Lessee’s Damages……………………………………………………..18
\n 14.5 Temporary Taking……………………………………………………..18
\n 14.6 Voluntary Sale……………………………………………………….18
\n15. LESSEE’S DEFAULT……………………………………………………………18
\n16. LESSOR’S REMEDIES UPON DEFAULT……………………………………………….18
\n17. LESSOR’S DEFAULT……………………………………………………………20
\n18. LESSEE’S REMEDIES UPON DEFAULT……………………………………………….20
\n19. ASSIGNMENT AND SUBLETTING……………………………………………………20
\n 19.1 Required Consents…………………………………………………….20
\n 19.2 Lessor’s Options and Approval Standards…………………………………20
\n 19.3 Permitted Transfers…………………………………………………..20
\n 19.4 No Releases………………………………………………………….21
\n 19.5 Conditions to Lessor’s Consent…………………………………………21
\n20. GENERAL PROVISIONS………………………………………………………….22
\n 20.1 Rules and Regulations…………………………………………………22
\n 20.2 Interpretation……………………………………………………….22
\n 20.2.1 Plats and Riders…………………………………………….22
\n 20.2.2 Construction as Covenants…………………………………….22
\n 20.2.3 Section Headings…………………………………………….22
\n 20.2.4 Time of Performance………………………………………….22
\n 20.2.5 Partial Invalidity…………………………………………..22
\n 20.2.6 Rent……………………………………………………….22
\n 20.2.7 United States Funds………………………………………….22
\n 20.2.8 Choice of Law……………………………………………….22
\n 20.3 Legal Relationships…………………………………………………..22
\n 20.3.1 Authority of Parties…………………………………………22
\n 20.3.2 No Partnership………………………………………………22
\n 20.3.3 Joint Obligation…………………………………………….22
\n 20.3.4 Successors and Assigns……………………………………….22
\n 20.4 Remedies and Liability………………………………………………..22
\n 20.4.1 Cumulative Remedies………………………………………….22
\n 20.4.2 Guaranty……………………………………………………23
\n 20.4.3 No Waivers………………………………………………….23
\n 20.4.4 Inability to Perform…………………………………………23
\n 20.4.5 Sale of Premises by Lessor……………………………………23
\n 20.4.6 Limitation on Liability………………………………………23
\n 20.4.7 Attorneys’Fees………………………………………………23
\n 20.5 Lenders’Requirements………………………………………………….23
\n 20.5.1 DNR; Lenders’Required Revisions……………………………….23
\n 20.5.2 Lessee’s Statement…………………………………………..23
\n 20.5.3 Subordination, Attornment…………………………………….23
\n 20.6 Brokers……………………………………………………………..24
\n 20.7 Venue……………………………………………………………….24
\n 20.8 Notices……………………………………………………………..24
\n 20.9 Recordation………………………………………………………….24
\n 20.10 Entire Agreement……………………………………………………..24
\n 20.11 Additional Provisions…………………………………………………24
\n<\/c><\/s><\/table>\n BASIC LEASE TERMS<\/p>\n
Date of Lease: July 20, 1999<\/p>\n
Lessor: Triad Pier 70 LLC, a Washington limited
\n liability company<\/p>\n
Lessor’s Address: 2815 Alaskan Way, Suite 228
\n Seattle, WA 98121<\/p>\n
Lessee: GO2NET INC., a Delaware corporation<\/p>\n
Lessee’s Address: The Premises.<\/p>\n
Guarantor: n\/a.<\/p>\n
Guarantor’s Address: n\/a<\/p>\n
Premises: The Second and Third Floors, Pier 70, 2815
\n Alaskan Way, Seattle, King County,
\n Washington; as depicted on EXHIBIT A<\/p>\n
Approximate Square Feet: Phase I Space: Approximately 57,211 rentable
\n square feet (“RSF”) on the Second and Third
\n Floors as depicted on EXHIBIT A; and Phase II
\n Space: approximately 5,136 RSF on the Third
\n Floor as depicted on EXHIBIT A; all of which
\n shall be subject to final measurement by
\n Lessor pursuant to ANSI\/BOMA Z65.1-1996
\n (Standard Method for Measuring Floor Area in
\n Office Buildings) (“BOMA Standard”).<\/p>\n
The approximately 37,000 RSF of the Phase I
\n Space on the west side of the Building (the
\n “Initial Phase I Space”) (as depicted on
\n EXHIBIT A attached hereto). The approximately
\n 20,200 RSF of the Phase I Space on the east
\n side of the Building is hereinafter referred
\n to as the “Remaining Phase I Space.”<\/p>\n
In addition, delivery of possession of the
\n Phase II Space is contingent on Lessor
\n obtaining all requisite permits and approvals
\n therefor, which Lessor shall use its
\n reasonable best efforts to obtain. Lessor
\n shall provide Lessee updates on the status of
\n the permit and approval process for the Phase
\n II Space not less frequently than on a
\n monthly basis.<\/p>\n
Term: Seven (7) years, (the “Term”), on the Lease
\nbeginning Commencement Date; plus two (2) options to
\n extend the Term by five (5) years each, as
\n more particularly described hereinbelow.<\/p>\n
Occupancy Date: The date on which Lessor notifies Lessee in
\n writing that the Lessor’s Work is
\n “substantially complete” as to the affected
\n space. The term “substantially complete”
\n shall be defined as the date on which Lessee
\n shall have full access to enter the Premises
\n for purposes of initiating its Tenant
\n Improvements.<\/p>\n
Anticipated Occupancy Date: November 1, 1999 as to the Initial Phase I
\n Space; December 1, 1999 as to Remaining Phase
\n I Space; and August 1, 2001 as to the Phase
\n II Space.<\/p>\n
Lease Commencement Date: The date that is ninety (90) days following
\n the actual Occupancy Date as to the Initial
\n Phase I Space.<\/p>\n
If the actual Occupancy Date as to the
\n Initial Phase I Space has not occurred by
\n January 1, 2000 (such date to be extended by
\n one (1) day for each one (1) day of delay
\n caused by Lessee), Lessee may terminate this
\n Lease and receive a full refund of its
\n Security Deposit and any pre-paid Rent.<\/p>\n
If the actual Occupancy Date as to the
\n Remaining Phase I Space has not occurred by
\n January 31, 2000 (such date to be extended by
\n one (1) day for each one (1) day of delay
\n caused by Lessee), Lessee may terminate this
\n Lease and receive a full refund of its
\n Security Deposit and any pre-paid Rent.<\/p>\n
If Lessor does not receive the necessary
\n building permit for the Phase I Space by July
\n 30, 1999, Lessee will have the right to
\n terminate this Lease and receive a full
\n refund of its Security Deposit and any pre-
\n paid Rent.<\/p>\n
Base Rent Commencement Date: The Base Rent Commencement Date shall be
\n the Lease Commencement Date.<\/p>\n
Operating Expense The Operating Expense Commencement Date shall
\nCommencement Date: be the Lease Commencement Date. <\/p>\n
Termination Date: 11:59 p.m. on day before the seventh (7th)
\n anniversary of the Lease Commencement Date.<\/p>\n
Permitted Uses: General office use only.<\/p>\n
Base Rent: (a) From the Commencement Date until the end
\n of the 24th calendar month, Base Rent shall
\n be paid at an annual rate of $19.00 per RSF.<\/p>\n
(b) From the beginning of the 25th calendar
\n month of the initial Term until the end of
\n the 48th calendar month, Base Rent shall be
\n paid at an annual rate of $21.00 per RSF.<\/p>\n
(c) From the beginning of the 49th calendar
\n month of the initial Term until the
\n Termination Date of the Initial Term, Base
\n Rent shall be paid at an annual rate of
\n $23.00 per RSF.<\/p>\n
Base Rent for any Extended Term shall be as
\n determined pursuant to the Additional
\n Provisions set forth at EXHIBIT D.<\/p>\n
Lessee’s Initial Share of The ratio between the total RSF of the
\nExpenses: Premises and the total RSF of the Building
\n (subject to periodic adjustment by Lessor
\n pursuant to Section 5 below).<\/p>\n
Security Deposit: $150,000.00<\/p>\n
Tenant Improvement Allowance: $25.00 per RSF of the Premises; plus $0.15
\n per RSF for space planning costs;<\/p>\n
all as more particularly set forth in
\n EXHIBIT E.<\/p>\n
Parking: As set forth in EXHIBIT D.<\/p>\n
Antenna License: As set forth in EXHIBIT G.<\/p>\n
EXHIBITS Exhibit A Schematic of Premises
\n Exhibit B Legal Description of Property
\n Exhibit C Rules and Regulations
\n Exhibit D Additional Provisions
\n Exhibit E Work Letter Agreement
\n Exhibit F Sign Agreement and Criteria
\n Exhibit G Form of Antenna License<\/p>\n
GENERAL LEASE TERMS<\/p>\n
1. DEFINITIONS. The capitalized terms used in this Lease shall have the
\nmeanings ascribed thereto in the Basic Lease Terms or as otherwise specifically
\ndefined herein. Any reference to “BUILDING” in this Lease shall mean the
\nbuilding in which the Premises are located, including the pier and pier pilings
\non which the building is situated. Any reference to “LAND” in this Lease shall
\nmean the land described in EXHIBIT B upon which the Building is located.<\/p>\n
Lessee acknowledges that this Lease is subject to a ground lease between
\nthe State of Washington acting by and through the Washington State Department of
\nNatural Resources (as lessor) and Triad Pier 70 LLC (as lessee) dated July 1,
\n1987, and recorded July 10, 1987, under Recording No. 8707101227 (the “DNR
\nGround Lease”), as the same may be amended or replaced from time to time. Lessee
\nfurther acknowledges and agrees that: (i) this Lease is subject and subordinate
\nto the DNR Ground Lease and any and all renewals, modifications, replacements
\nand extensions thereof, whether now or hereafter executed; (ii) the Term of this
\nLease may not extend beyond the term of the DNR Ground Lease, and any extension
\nor renewal options in this Lease for any periods beyond the current term of the
\nDNR Ground Lease shall be void and of no effect as to such periods; (iii) this
\nLease and all rights and privileges of Lessee are subject to any consents that
\nmay be required from DNR pursuant to the DNR Ground Lease, and any provision
\nhereof requiring the consent of Lessor shall also be deemed to require the
\nconsent of DNR as and to the extent required under the DNR Ground Lease, which
\nDNR may grant or withhold in its sole discretion; and (iv) Lessee shall not by
\nact or omission cause a default or breach under the DNR Ground Lease or take any
\naction in contravention of the DNR Ground Lease. In addition,<\/p>\n
(a) This Lease shall be consistent with and subject to all the terms and
\nconditions of the DNR Ground Lease;<\/p>\n
(b) If this Lease conflicts with the DNR Ground Lease, the latter shall
\ncontrol;<\/p>\n
(c) The Term of this Lease (including any Extended Term) shall end before
\nthe termination date of the DNR Ground Lease or any renewal term thereof;<\/p>\n
(d) This Lease shall terminate if the DNR Ground Lease terminates, whether
\nupon expiration of the term of the DNR Ground Lease, failure to exercise any
\noption to renew the DNR Ground Lease, cancellation by the State of Washington of
\nthe DNR Ground Lease, surrender of the premises demised by the DNR Ground Lease,
\nor for any other reason; provided that Lessor shall not shorten the term of the
\nDNR Ground Lease without Lessee’s prior written consent;<\/p>\n
(e) By execution hereof, Lessee acknowledges receipt of a copy of the DNR
\nGround Lease;<\/p>\n
(f) Lessee shall not prepay to Lessor more than one (1) month’s rent;<\/p>\n
(g) Lessee acknowledges that there is no privity of contract between the
\nState of Washington and Lessee;<\/p>\n
(h) Lessee shall remove all Lessee improvements and trade fixtures upon
\ntermination of this Lease (provided that, if DNR requires such removal, Lessor
\nshall accomplish same it Lessor’s sole expense); and<\/p>\n
(i) Lessee’s use of the Premises shall conform and be subject to the
\npermitted uses of the DNR Ground Lease.<\/p>\n
Notwithstanding anything to the contrary in the foregoing, Lessor will use
\nreasonable efforts to obtain any renewals, modifications, replacements and\/or
\nextensions of the DNR Ground Lease as may be necessary in order to preserve
\nLessee’s rights under this Lease. However, lessor shall be liable to Lessee for
\nall damages suffered by Lessee if Lessor breaches the DNR Ground Lease. Lessee
\nshall attorn to DNR at DNR’s request upon any termination of the DNR Ground
\nLease.<\/p>\n
Lessor represents that it has not received any notices of default from DNR under
\nthe DNR Ground Lease and is unaware of any existing uncured defaults by DNR
\nthereunder. Lessor agrees to provide Lessee with copies of any notices of
\ndefault received by Lessor from DNR under the DNR Ground Lease. Lessor also
\nagrees to use commercially reasonable efforts to obtain nondisturbance
\nprotection from DNR in favor of Lessee, including the right for Lessee to
\ncontinue as a direct tenant of DNR should the DNR Ground Lease ever be
\nterminated, and the right for Lessee to cure defaults by Lessor as tenant under
\nthe DNR Ground Lease.<\/p>\n
The parties acknowledge that Lessor has commenced renegotiation of the DNR
\nGround Lease. In connection therewith, while such renegotiation is in progress,
\nLessor shall provide Lessee with periodic updates, status reports, and
\ncommunications (e.g., letters of intent and proposals) relating thereto with the
\nintention of keeping Lessee reasonably apprised of the status thereof. The
\nforegoing sentence, however, shall not be interpreted to require Lessor to
\nconclude such renegotiations, or to achieve any particular outcome with respect
\nthereto. Lessee agrees to treat all such information received by it as
\nconfidential, proprietary information and shall not release or divulge any such
\ninformation to any third party without the prior written consent of Lessor. If
\nLessee is requested, pursuant to or required by applicable law or regulation or
\nby legal process, to disclose any such information, Lessee further agrees that
\nit will provide Lessor with prompt notice of any such request to enable Lessor
\nto seek a protective order or other appropriate remedy and\/or waive compliance
\nwith the provisions of this Lease. The parties agree that damages may not be an
\nadequate remedy in the event of a breach or threatened breach of this
\nconfidentiality clause, and Lessor shall accordingly be entitled, without proof
\nof special damages, to seek injunctive or other appropriate equitable relief
\nagainst Lessee in the event of such a breach or threatened breach hereunder.<\/p>\n
2. AGREEMENT TO LEASE. For and in consideration of Lessee’s performance of
\nits covenants herein provided, Lessor does hereby lease to Lessee, and Lessee
\ndoes hereby lease from Lessor, all of the Premises on and subject to the terms,
\ncovenants and conditions herein contained.<\/p>\n
3. CONDITION OF PREMISES.<\/p>\n
3.1 EXISTING CONDITION. Subject to the completion of Lessor’s Work as
\nprovided in Section 3.2 below, and except as otherwise provided herein, the
\nPremises are leased to Lessee in the condition existing on the first day of the
\nTerm hereof without warranty, express or implied, as to the physical condition
\nthereof, and Lessee acknowledges that Lessee has inspected the Premises and
\naccepts the same in such condition, “as-is”, subject to unperformed Lessor’s
\nWork under Exhibit E hereto, and without any representations or warranties by
\nLessor. Lessee understands and acknowledges that Lessor is anticipating
\nundertaking a substantial renovation of the Building, Common Areas and the pier,
\nwhich is expected to commence sometime in 1999 or 2000, depending on a number of
\nfactors yet to be determined. Lessor offers no warranty of when such renovation
\nwill commence or the impact it may have on the Building or Lessee’s business
\neither before or after the renovation; however, once commenced, the proposed
\nrenovation shall be substantially completed on or before May 1, 2000, subject to
\nforce majeure, changes in the general contract conditions, and delays caused by
\nLessee, and with the understanding that build-out of interior tenant spaces is
\nnot considered part of such “renovation.”<\/p>\n
Notwithstanding the foregoing, Lessor represents that, on or before completion
\nof the Lessor’s Work, the Building is or shall be in good condition, both
\nstructurally and mechanically, including electrical, HVAC, water and sewer
\nsystems. Lessor does represent and warrant that the Building will be renovated
\nto a first class condition, suitable for general office purposes.<\/p>\n
3.2 LESSOR’S WORK. Subject to delays for force majeure and reasons
\nbeyond its reasonable control, Lessor shall promptly commence and pursue in good
\nfaith to completion any Lessor’s Work identified in EXHIBIT E attached hereto.
\nAll of the costs and expenses incurred by Lessor in performing Lessor’s work
\n(except due to the negligence or delay of Lessee or its agents, employees or
\ncontractors, or due to change orders requested by Lessee) shall be paid by
\nLessor. Lessor shall use reasonable efforts to complete Lessor’s Work on or
\nbefore the Anticipated Occupancy Date set forth in the Basic Lease Terms above.
\nLessee and Lessor acknowledge that Lessee may perform Lessor’s Work
\nsimultaneously while Lessee is performing Lessee’s Work, provided that Lessee’s
\nWork does not interfere with or otherwise delay the completion of Lessor’s Work.
\nIf Lessor is unable to deliver possession of the Premises to Lessee by the
\nAnticipated Occupancy Date, Lessor shall not be liable for any damage, injury or<\/p>\n
loss arising therefrom, but Lessee shall have the termination rights as set
\nforth in the Basic Lease Terms.<\/p>\n
3.3 LESSEE’S WORK. Subject to delays caused by Lessor or for reasons
\nbeyond Lessee’s control (excluding the inability of Lessee to make any monetary
\npayment), Lessee shall promptly commence and pursue in good faith to completion
\nany Lessee’s Work identified in EXHIBIT E attached hereto. Subject to
\nreimbursement for a portion of the costs of Lessee’s Work pursuant to EXHIBIT E,
\nall of the costs and expenses incurred by Lessee in performing Lessee’s Work
\nshall be paid by Lessee. Lessee’s Work shall be performed in accordance with the
\nprovisions of EXHIBIT E below. Lessee’s Work shall be completed and the Premises
\nready for occupancy no later than one hundred eighty (180) days after the
\nOccupancy Date. Base Rent shall commence being due and payable on a monthly
\nbasis on the Base Rent Commencement Date regardless whether the Lessee’s Work
\nhas been completed by that time.<\/p>\n
4. TERM.<\/p>\n
4.1 INITIAL TERM. The Lease shall be for the Term indicated in the
\nBasic Lease Terms.<\/p>\n
4.2 HOLDING OVER. If Lessee remains in possession of the Premises or
\nany part thereof after the expiration of the Term hereof with the consent of
\nLessor, such occupancy shall be a tenancy from month to month at a base rental
\nequal to one hundred twenty-five percent (125%) of the last monthly Base Rent,
\nplus all other rent payable hereunder, and upon all the terms hereof applicable
\nto a month to month tenancy.<\/p>\n
5. RENT.<\/p>\n
5.1 BASE RENT. Commencing on the Base Rent Commencement Date, Lessee
\nshall pay 1\/12th of the then-applicable annual Base Rent rate in advance on or
\nbefore the first day of each month of this Lease. Said rental shall be paid to
\nLessor in advance without notice, demand, deduction or offset, in lawful money
\nof the United States of America, at Lessor’s address listed in the Basic Lease
\nTerms or such other place as Lessor may from time to time designate to Lessee in
\nwriting.<\/p>\n
5.2 ADDITIONAL RENT FOR OPERATING EXPENSES.<\/p>\n
5.2.1 DEFINITION OF EXPENSES. “EXPENSES” shall mean the total
\nreasonable costs and expenses paid or incurred by Lessor during the Term in
\nconnection with the ownership, management, operation, insurance, maintenance and
\nrepair of the Land and Building and which, in accordance with accepted
\nprinciples of sound accounting and management practice used by Lessor are
\nproperly chargeable to the Land, the portion of the Building upon which Lessee’s
\nShare of Expenses is calculated, and the Common Areas, including, without
\nlimitation (a) the cost of air conditioning, electricity, heating, mechanical,
\nventilation, water and sewer and all other utilities (notwithstanding those
\nHVAC, electricity and water services for which Lessee will be paying separately,
\nand provided that the costs of utilities consumed by any restaurants or other
\nretail users in the Building shall be separately metered or otherwise
\ndetermined, and excluded), the cost of trash removal, security and security
\nsystems, landscaping and plant maintenance, and general upkeep, including
\njanitorial services (provided, that Lessee shall be responsible for providing
\njanitorial service to the Premises at its sole cost), and the cost of supplies
\nand equipment and all maintenance and service contracts in connection therewith,
\n(b) the cost of operation, repairs, maintenance and cleaning, (c) the cost of
\nfire, extended coverage, plate glass, sprinkler, public liability, property
\ndamage, rental interruption and other insurance, (d) wages, salaries and other
\nlabor costs, including taxes, insurance, retirement, medical and other employee
\nbenefits for any person to the extent such costs are directly attributable to
\nsuch person’s duties in connection with the operation, maintenance, and repair
\nof the Building; (e) fees, charges and other costs, including management fees,
\nconsulting fees. legal fees and accounting fees, of all independent contractors
\nengaged by Lessor or reasonably charged by Lessor if Lessor performs management
\nservices in connection with the Land and Building, (f) the cost of any license,
\npermit or inspection fees, and (g) reasonable reserves to cover costs of long-
\nterm programmed maintenance, including, without limitation, HVAC and any
\nelevator system maintenance (subject, however, to the limitations described
\nbelow to the extent any of the foregoing costs must be capitalized under
\ngenerally accepted accounting and management principles), (h) payments of “Rent”
\nas defined in Section 3.14 of the DNR Ground Lease, “Other Expenses” described
\nin Section 4 therein and other additional rent under the DNR Ground Lease, as<\/p>\n
the same may be extended, amended, renewed, replaced, and\/or renegotiated from
\ntime to time; EXCLUDING, however, late charges, penalties or similar fees
\nthereunder not caused by Lessee, and, (i) subject to the reasonable prior
\napproval of Lessee, any other costs and expenses of any other kind reasonably
\nincurred in managing, operating, owning, maintaining and repairing the Land and
\nBuilding.<\/p>\n
The following shall be EXCLUDED from Expenses (unless Lessee’s prior approval
\ntherefor has been obtained): (j) costs of any special services rendered to
\nindividual tenants (including Lessee) for which a special charge is made; (k)
\nother costs billed to and paid by individual tenants (including Lessee); (l)
\ncosts paid by proceeds of insurance; (m) [intentionally deleted]; (n) costs
\nincurred to repair, change, improve, replace or correct defects in the pending
\n1999\/2000 redesign, renovation, and\/or rehabilitation of the Building, Common
\nAreas or Pier; (o) costs for which Lessor is reimbursed; (p) Lessor’s
\nmanagement, administrative, or overhead costs except as otherwise specifically
\npermitted elsewhere herein to be included; (q) property management fees
\nexceeding the LESSER of (1) three percent (3%) of the Base Rents collected for
\nthe Building in such year, or (2) market rates for such management fees; (r)
\nbreach by Lessor of any contractual obligation; (s) professional fees incurred
\nin connection with the enforcement of other leases in the Building, the proposed
\nrenegotiation of the DNR Ground Lease, or relating solely to Lessor’s ownership
\nof the Building (e.g., professional fees to prepare Lessor’s tax returns or to
\nrefinancing debt); (t) promotional or advertising costs; (u) costs of rental
\nconcessions or buyouts for other tenants in the Building; (v) costs of
\nrenovating or otherwise decorating premises leased to other tenants; (w)
\nexpenses incurred in connection with relocating tenants in the Building; (x)
\ncosts due to Lessor’s gross negligence or intentional misconduct; (y) costs due
\nto the cleaning of hazardous materials in existence in the Building, Common
\nAreas or Pier prior to Lessee’s occupancy of the Premises or which was caused by
\nLessor’s negligence; (z) costs incurred due to the violation by Lessor of any
\napplicable law; and (aa) costs required to be capitalized in accordance with
\ngenerally accepted accounting and management practices (except that Expenses
\nshall include the costs of any capital repairs, improvements, betterments,
\nand\/or replacements, including without limitation replacements to piers and
\npilings, provided that such costs shall be amortized over the useful life of the
\nitem, together with interest on the unamortized balance at the prime rate of
\ninterest then being charged by Seattle-First National Bank). As used in this
\nLease, “Lessee’s Share of Expenses” will be determined based on the ratio
\nbetween the total RSF of the Premises and the total RSF of the Building. Lessor
\nand Lessee acknowledge that, but for relatively limited spaces within the
\nBuilding occupied by other tenants, the Building is wholly occupied by Lessee.
\nLessor acknowledges Lessee’s concerns regarding operating costs, including but
\nnot limited to matters such as insurance, security services, janitorial
\ncontracts and roof and HVAC maintenance contracts. Lessor agrees that, if Lessee
\nso elects and appoints a Lessee Facility Coordinator, Lessor shall permit the
\nLessee Facility Coordinator to review (but not disapprove) the annual budget and
\nto meet with the Lessee Facility Coordinator on a quarterly basis regarding
\nOperating Costs and the entry into maintenance and service contracts. Except in
\nan emergency, and with respect to Operating Costs reasonably controllable by
\nLessor (i.e., by way of example only and without limitation, not including taxes
\nor insurance expenses), Lessor shall not enter into any unbudgeted contract for
\nmore than Ten Thousand Dollars ($10,000) without prior consultation with
\n(without, however, the necessity of obtaining the approval of) the Lessee
\nFacility Coordinator. Further, Lessor shall not, without the prior written
\nconsent of Lessee, include as Expenses professional fees from property managers
\nor other consultants which are affiliated or otherwise related to Lessor to the
\nextent such fees exceed three percent (3%) of Base Rents collected from the
\nBuilding in the applicable Lease Year.<\/p>\n
5.2.2 ARBITRATION OF EXPENSE DISPUTES. In the event that Lessee
\ndisputes the reasonableness of any item(s), or the cost thereof, listed in
\nLessor’s Expense Statement, either party may demand binding arbitration pursuant
\nto the provisions set forth below.<\/p>\n
(1) STATUTE OF LIMITATIONS. All statutes of limitations which would
\notherwise be applicable and any limitations upon claims set forth in this
\nSection shall apply to any arbitration proceeding under this Section.<\/p>\n
(2) NOTICE OF DEMAND. Either party may demand arbitration by
\nnotifying the other party in writing in accordance with the notice provisions of
\nthis Lease. The notice shall describe the reasons for such demand, the amount
\ninvolved, if any, and the particular remedy sought, and shall specifically
\nreference the required five (5) day response time specified in subsection (3)<\/p>\n
below. The notice shall also list the name of one arbitrator qualified in
\naccordance with subsection (4).<\/p>\n
(3) RESPONSE. The party that has not demanded arbitration shall
\nrespond to the notice of demand within five (5) calendar days of receipt of such
\nnotice by delivering a written response in accordance with the notice provisions
\nof this Lease. The response shall list the name of a second arbitrator qualified
\nin accordance with Subsection (4). The response shall also describe
\ncounterclaims, if any, the amount involved, and the particular remedy sought. If
\na party fails to respond timely to the notice of demand, the arbitrator selected
\nby the party making such demand under Subsection (2) shall resolve the dispute,
\ncontroversy or claim within seven (7) calendar days of the deadline for
\nresponse.<\/p>\n
(4) QUALIFIED ARBITRATOR. Any arbitrator selected in accordance with
\nSubsections (2) and (3) shall be any natural person not employed by or
\nassociated with or who has an interest in either of the parties or any parent or
\naffiliated partnership, corporation or other enterprise thereof. Such arbitrator
\nshall also be a property management professional, developer, commercial real
\nestate broker with at least ten (10) years experience in the downtown Seattle
\nreal state market, or an attorney or judge with at least ten (10) years
\nexperience in the legal profession. The parties may, if they agree, at any time
\nprior to one (1) day before the arbitration hearing, agree to have a single
\narbitrator hear and decide the case, and who that single arbitrator will be.<\/p>\n
(5) APPOINTMENT OF THIRD ARBITRATOR. If a party responds timely to a
\nnotice of demand for arbitration under Subsection (3), the two arbitrators shall
\nappoint a third arbitrator who shall be qualified in accordance with subsection
\n(4). Such third arbitrator shall be appointed within seven (7) calendar days of
\nreceipt by the party demanding arbitration of notice of response provided for
\nunder Subsection (4). If the two arbitrators fail to timely appoint a third
\narbitrator, the third arbitrator shall be appointed by the parties if they can
\nagree within a period of five (5) calendar days. If the parties cannot timely
\nagree, then either party may request the appointment of such third arbitrator by
\nthe Presiding Judge of the Superior Court of King County, Washington, and both
\nparties hereby agree not to raise any question as to the court’s full power and
\njurisdiction to entertain such application and to make such appointment;
\nprovided that the other party shall not raise any question as to the court’s
\nfull power and jurisdiction to entertain such application and to make such
\nappointment.<\/p>\n
(6) ARBITRATION HEARING; DISCOVERY; VENUE. The arbitration hearing
\nshall commence within ten (10) calendar days of appointment of the third
\narbitrator as described in Subsection (5). The hearing shall in no event last
\nlonger than two (2) calendar days. There shall be no discovery or dispositive
\nmotion practice (such as motions for summary judgment or to dismiss or the like)
\nexcept as may be permitted by the arbitrators; and any such discovery or
\ndispositive motion practice permitted by the arbitrators shall accommodate to
\nthe maximum extent practical the time limits contained herein. The arbitrators
\nshall not be bound by any rules of civil procedure or evidence, but rather shall
\nconsider such writings and oral presentations as reasonable business persons
\nwould use in the conduct of their day to day affairs, and may require the
\nparties to submit some or all of their case by written declaration or such other
\nmanner of presentation as the arbitrators may determine to be appropriate. It is
\nthe intention of the parties to limit live testimony and cross examination to
\nthe extent absolutely necessary to insure a fair hearing to the parties on
\nsignificant and material issues. Venue of any arbitration hearing conducted
\npursuant to this Section shall be in Seattle, Washington. It is also the
\nintention of the parties that any such arbitration shall not interfere with the
\ncontinued use and occupancy of the Premises by Lessee.<\/p>\n
(7) DECISION. The arbitrators’ decision shall be made in no event
\nlater than seven (7) calendar days of the commencement of the arbitration
\nhearing described in Subsection (6). If three (3) arbitrators are appointed, a
\nmajority decision shall prevail. The award shall be final and judgment may be
\nentered in any court having jurisdiction thereof. The arbitrators may award
\nspecific performance of the affected provisions of this Lease. The arbitrators
\nmay also require remedial measures as part of any award. The arbitrators may
\naward attorneys’ fees and costs to the more prevailing party.<\/p>\n
5.2.3 PAYMENT OF EXPENSES. Commencing on the Lease Commencement
\nDate, Lessee shall pay to Lessor without notice, demand, deduction or offset and
\nas additional rent, one-twelfth (1\/12th) of Lessee’s Share of Expenses for each
\nyear of the Term of this Lease on or before the first day of each month of such<\/p>\n
Expense year, in advance, in an amount estimated by Lessor and billed by Lessor
\nto Lessee. With reasonable promptness after the expiration of each calendar year
\nin which Lessee is obligated to pay Expenses, Lessor shall furnish Lessee with a
\nstatement (“LESSOR’S EXPENSE STATEMENT”) setting forth in reasonable detail the
\nExpenses for such year and the Lessee’s Share of Expenses. If Lessee’s Share of
\nthe actual Expenses paid by Lessee for such year is greater than the amount paid
\nby Lessee, Lessee shall pay to Lessor the difference between the amount paid by
\nLessee and Lessee’s Share of actual Expenses within fifteen (15) days after the
\nreceipt of Lessor’s Expense Statement, and if the total amount paid by Lessee
\nfor any such year shall exceed Lessee’s Share of actual Expenses for such year,
\nsuch excess shall be credited against the next installment of the estimated
\nExpenses or other rent due from Lessee to Lessor, or refunded to Lessee if at
\nthe end of the term of this Lease.<\/p>\n
5.2.4 ADJUSTMENT OF LESSEE’S SHARE. Lessor shall have the right
\nto adjust Lessee’s Share of any item comprising Expenses to allocate such
\nExpenses among tenants in the Building in a reasonable and equitable manner
\nbased primarily upon the usage of and benefits afforded to such tenants;
\nprovided that Lessor can provide reasonable evidence justifying any such
\nadjustment; and provided further that such Expenses shall not be so adjusted to
\nincrease Lessee’s share thereof merely because one or more other leased premises
\nat the Building are vacant.<\/p>\n
5.2.5 PRORATION OF EXPENSES. If any part of the first or the last
\nyears of the Lease Term shall include part of a calendar year, Lessee’s
\nobligations under this Section shall be apportioned so the Lessee shall pay only
\nfor such parts of such years as are included in the Lease Term. Lessor may,
\npending the determination of the amount of actual Expenses for the partial year
\nin which the Term ends, furnish Lessee with a statement of estimated actual
\nexcess Expenses and Lessee’s Share thereof for such partial Expense Year. Within
\nfifteen (15) days after receipt of such estimated statement, Lessee shall remit
\nto Lessor, as additional rent, the amount of Lessee’s Share of anticipated
\nExpenses. If there shall be an underpayment of Lessee’s Share of Expenses,
\nLessee shall remit the amount of such underpayment to Lessor within fifteen (15)
\ndays of receipt of such statement, and if there shall have been an overpayment,
\nLessor shall remit the amount of any such overpayment to Lessee within fifteen
\n(15) days of the issuance of such statement.<\/p>\n
5.2.6 LESSOR’S BOOKS AND RECORDS. Lessor shall keep full and
\naccurate books of account covering Expenses. Lessee shall have the right, at
\nLessee’s cost, and within six months after Lessee’s receipt of Lessor’s Expense
\nstatement as described Section 5.2.3, to inspect and audit such books of account
\nannually for the immediately preceding year at a reasonable time on ten (10)
\ndays’ prior written notice to Lessor. Except in the event that Lessor has
\nintentionally or fraudulently misstated actual Expenses for any such year,
\nfailure of Lessee to object to an audit of such books of account within such
\nsix-month period shall constitute Lessee’s waiver of the right to object to,
\nchallenge, audit or contest the collection or allocation of Expenses for such
\nyear. If an audit discloses an overpayment of Expenses, Lessee shall receive a
\ncredit against the next payment of Expenses required, or a refund if at the end
\nof the Lease term.<\/p>\n
5.3 [Intentionally deleted].<\/p>\n
5.4 LATE CHARGES. Lessee acknowledges that late payment of rent or
\nother sums due hereunder will cause Lessor to incur costs not contemplated by
\nthis Lease, the exact amount of which will be extremely difficult to ascertain.
\nSuch costs include, but are not limited to, processing charges and late charges
\nwhich may be imposed upon Lessor by terms of any mortgage or deed of trust
\ncovering the Premises. Accordingly, if any rent shall not be received by Lessor
\nor Lessor’s designee within fifteen (15) days after it is due, Lessee shall pay
\nto Lessor a late charge equal to five percent (5%) of such overdue amount, plus
\nany reasonable attorneys’ fees incurred by Lessor by reason of Lessee’s failure
\nto pay rent or other charges when due hereunder; provided, that if Lessee pays
\nany rent five (5) or more days late on three (3) or more occasions in any
\ntwelve-month period, then the aforementioned 15-day grace period shall, for the
\nremainder of the term hereof, be reduced to five (5) days. Acceptance of such
\nlate charges by Lessor shall not constitute a waiver of Lessee’s default with
\nrespect to such overdue amount or prevent Lessor from exercising any of the
\nother rights and remedies granted hereunder. Acceptance of late rent without
\ncollecting a late charge shall not be a waiver of Lessor’s rights under this
\nSection.<\/p>\n
5.5 SECURITY DEPOSIT. Lessee shall pay the Security Deposit to Lessor<\/p>\n
concurrently with Lessee’s execution and delivery of this Lease. Lessor shall
\nhold the Security Deposit to secure the faithful performance by Lessee of all of
\nthe terms, covenants, and conditions of this Lease to be kept and performed by
\nLessee during the Term hereof. If Lessee defaults with respect to any provision
\nof this Lease beyond any applicable grace or cure periods, Lessor may (but shall
\nnot be required to) use, apply or retain all or any part of this Security
\nDeposit for the payment of rent or any amount which Lessor may spend by reason
\nof Lessee’s default or to compensate Lessor for any other loss or damage which
\nLessor may suffer by reason of Lessee’s default. If any portion of the Security
\nDeposit is so used or applied, Lessee shall, within ten (10) days after written
\ndemand therefor, deposit cash with Lessor in an amount sufficient to restore the
\nSecurity Deposit to its original amount. Lessor shall not be required to keep
\nthe Security Deposit separate from its general funds, and Lessee shall not be
\nentitled to interest on such deposit. If Lessee fully and faithfully performs
\nevery obligation of Lessee under this Lease, the Security Deposit or any balance
\nthereof shall be returned to Lessee (or, at Lessor’s option, to the last
\nassignee of Lessee’s interests hereunder) within 30 days after the expiration of
\nthe Lease Term and after Lessee has vacated the Premises. In the event of
\ntermination of Lessor’s interest in this Lease, Lessor shall transfer the
\nSecurity Deposit to Lessor’s successor-in-interest, whereupon Lessor shall have
\nno further liability for the return of or any accounting for the Security
\nDeposit.<\/p>\n
6. TAXES. Lessee shall and agrees to pay all of the taxes referred to in
\nthis Section.<\/p>\n
6.1 REAL PROPERTY TAXES. Commencing on the Lease Commencement Date,
\nLessee shall pay Real Property Taxes to the extent the same are in the
\nproportion the square footage of the Premises bears to the square footage of the
\nBuilding against which such Real Property Taxes are assessed and are fairly
\nattributable to the Term of this Lease. Lessee shall pay one-twelfth (1\/12th) of
\nits share of Real Property Taxes each month with and in addition to its monthly
\npayment of Lessee’s Share of Expenses. If any such Real Property Taxes have not
\nyet been assessed, such payments shall be based upon Lessor’s estimate thereof
\nand adjusted by Lessor after such assessment is made so as to correspond
\nLessee’s payments to its share of the actual amounts levied. “REAL PROPERTY
\nTAXES” shall mean all real and personal property taxes, leasehold excise tax,
\nassessments and charges levied upon or with respect to the Land and Building,
\nincluding the Common Areas. Real Property Taxes shall include, without
\nlimitation, taxes on tenant improvements which are paid for by Lessor and not
\nreimbursed by tenants; all general real property taxes, charges, and general and
\nspecial assessments for transit, housing, police, fire, roadways, sidewalks,
\nutility service systems and components, and other governmental services or
\npurported benefits to the Land or Building, and service payments in lieu of
\ntaxes; and any other tax, fee or excise, however described, that may be levied
\nor assessed as a substitute for, or as an addition to, in whole or in part, any
\nother Real Property Taxes. Real Property Taxes shall not include any local,
\nstate or federal income, franchise, profit, estate, inheritance, gift, or
\ntransfer taxes of Lessor unless, due to a change in the method of taxation, any
\nsuch tax is levied or assessed against Lessor as a substitute for, in whole or
\nin part, any other tax that would otherwise constitute a Real Property Tax. If
\nat any time during the Lease Term, any governmental authority levies or assesses
\nagainst Lessor any tax, fee or excise on (a) rents payable under any lease of
\nspace or accruing from the use of space in the Building, (b) the business of
\nrenting space in the Building, (c) the act of entering into this Lease or any
\nother lease of space in the Building, or (d) the use or occupancy by tenants of
\nany space in the Building, such tax, fee or excise shall constitute a Real
\nProperty Tax. Real Property Taxes shall also include reasonable legal fees,
\ncosts and disbursements incurred in connection with proceedings to contest,
\ndetermine or reduce Real Property Taxes (provided that Lessor agrees to obtain
\nLessee’s prior written consent prior to contesting or attempting to reduce or
\ndetermine Real Property Taxes).<\/p>\n
6.2 BUSINESS AND LICENSE TAXES. Lessee shall pay all license and
\nexcise fees and occupation taxes covering its business conducted on the
\nPremises. If any governmental authority levies a tax or license fee on rents
\npayable under this Lease or rents accruing from use of the Premises or a tax or
\nlicense fee in any form against Lessor or Lessee because of or measured by or
\nbased upon income derived from the leasing or rental thereof, or a transaction
\nprivilege tax, such tax or license fee shall be paid by Lessee, either directly
\nif required by law, or by reimbursing Lessor for the amount thereof upon demand.<\/p>\n
6.3 PERSONAL PROPERTY TAXES. Lessee shall pay all taxes which are
\nfairly attributable to the Term hereof and which are assessed against all of<\/p>\n
Lessee’s leasehold improvements, equipment, furniture, fixtures and any other
\npersonal property located in the Premises. If any or all of Lessee’s leasehold
\nimprovements, equipment, furniture, fixtures and other personal property shall
\nbe assessed and taxed with the real property, Lessee shall pay to Lessor its
\nshare of such taxes within thirty (30) days after delivery to Lessee by Lessor
\nof a statement in writing setting forth the amount of such taxes applicable to
\nLessee’s property.<\/p>\n
7. USE OF PREMISES.<\/p>\n
7.1 PERMITTED USES. Lessee shall use the Premises solely for the
\nPermitted Use identified in the Basic Lease Terms. Lessee shall not use or
\npermit the Premises to be used for any other purpose without the prior written
\nconsent of Lessor. Lessor represents and warrants that existing land use and
\nzoning laws, codes and ordinances permit the Permitted Uses at the Premises.<\/p>\n
7.2 COMPLIANCE WITH LAWS. Lessee shall, at its sole cost and expense,
\npromptly comply with all laws, statutes, ordinances and governmental rules,
\nregulations or requirements now in force or which may hereafter be in force
\nrelating to Lessee’s use of the Premises and the condition of the Tenant
\nImprovements, and with the requirements of any board of fire insurance
\nunderwriters or other similar bodies now or hereafter constituted, relating to,
\nor affecting the condition or use of the Premises, excluding structural changes
\nto the Building not related to or affected by Lessee’s improvements or use of
\nthe Premises. Without limiting the foregoing, and except for the Lessor’s Work
\nor any future work undertaken by Lessor in or about the Building, Lessee shall
\nat all times keep, use and improve the Premises in compliance with the ADA, and
\nshall be solely responsible for any changes to the Premises or changes to the
\nCommon Areas necessitated thereby relating in any way to Lessee’s use,
\noccupancy, or improvement to the Premises. Lessee shall maintain the Premises in
\na clean and sanitary condition. Lessee shall fully indemnify Lessor with respect
\nto the obligations set forth in this Section. Lessor represents and warrants
\nthat, as of the applicable Occupancy Date for each portion of the Premises, that
\nportion and the Building (other than Lessee’s improvements) shall be in
\ncompliance with applicable laws, codes and ordinances, including without
\nlimitation the ADA.<\/p>\n
7.3 [Intentionally deleted].<\/p>\n
7.4 [Intentionally deleted].<\/p>\n
7.5 PROHIBITED USES. Without limiting the restrictions to the uses
\nexpressly permitted by this Lease, the Lessee further agrees as follows:<\/p>\n
7.5.1 INTERFERENCE WITH LESSEE. Lessee shall not do or permit
\nanything to be done in or about the Premises which will in any way obstruct or
\ninterfere with the rights of other tenants or occupants of the Building or use
\nor allow the Premises to be used for any use that will lessen the reputation of
\nthe Premises or be reasonably objectionable to other tenants.<\/p>\n
7.5.2 WASTE. Lessee shall take good care of and not commit or
\nallow to be committed any waste in or upon the Premises.<\/p>\n
7.5.3 VIOLATION OF LAW. [Intentionally deleted.]<\/p>\n
7.5.4 INCREASE IN INSURANCE PREMIUMS. Lessee shall not permit
\nanything to be done in or about the Premises or bring or keep anything therein
\nwhich will in any way increase the existing rate or affect any fire or other
\ninsurance upon the Premises or any of its contents or cause a cancellation of
\nany insurance policy covering any part of said Premises or contents.<\/p>\n
7.5.5 HAZARDOUS SUBSTANCES. Except for cleaning solvents and
\nother similar substances which are required for the Permitted Use, all of which
\nshall be used, handled, stored, transported and disposed of by Lessee in
\naccordance with all laws and regulations, Lessee shall not use, generate,
\ntransport, treat, store, dispose of or otherwise handle Hazardous Substances on
\nthe Premises without the prior written consent of Lessor. Lessor may withhold
\nsuch consent in its sole discretion or may condition such consent upon Lessee’s
\nagreement to comply with requirements designed by Lessor. The term “HAZARDOUS
\nSUBSTANCES” shall mean any and all hazardous, toxic, infectious or radioactive
\nsubstances, wastes or materials as defined or listed by any federal, state or
\nlocal statute, regulation or ordinance pertaining to the protection of human
\nhealth or the environment and shall specifically include petroleum oil and its
\nfractions. Upon expiration or termination of this Lease for any reason, Lessee<\/p>\n
shall remove from the Premises all Hazardous Substances and their containers
\nbrought onto the Premises by Lessee or its employees, agents, licensees,
\ncontractors or subtenants, and Lessee shall certify in writing to Lessor that no
\nHazardous Substance has been leaked, spilled, released or disposed on or about
\nthe Premises by Lessee or its employees, agents, licensees, contractors or
\nsubtenants during the Term of the Lease.<\/p>\n
Notwithstanding the foregoing, Lessor shall hold Lessee harmless from any
\nclaims, demands, actions, liabilities, expenses, damages and obligations of any
\nnature–including costs of clearance and remedial measures–for any
\ncontamination existing on the Premises prior to occupation thereof by Lessee or
\ncaused by Lessor subsequent thereto, whether or not discovered prior to or after
\nthe Commencement Date.<\/p>\n
7.5.6 SIGNAGE. Lessee shall not erect or place, or permit to be
\nerected or placed, or maintain any signs of any nature or kind whatsoever on the
\nexterior walls or windows of the Premises or elsewhere in the Building, except
\nas set forth in EXHIBIT F, without Lessor’s prior written consent, which consent
\nshall not be unreasonably withheld and which shall be deemed given if not
\ndisapproved by Lessor within ten (10) business days of submittal of signage
\nmaterials by Lessee. Notwithstanding the parties’ agreement regarding signage as
\nset forth in EXHIBIT F, Lessee agrees to abide by all reasonable signage rules
\nand regulations, if any, promulgated by Lessor and to install, at its sole
\nexpense, any signs required thereby. If the Building is designated as a historic
\nbuilding, Lessee acknowledges that it may be subject to special rules and
\nrestrictions regarding the size, design and character of all signs, and that all
\nsuch signs shall be subject to such rules and restrictions. All signage is also
\nsubject to the Lessor’s Sign Criteria attached hereto as EXHIBIT F.<\/p>\n
Lessor shall install at its expense tenant identification signage in the
\nmain lobby of the Building and on the Building’s monument sign near the entrance
\nthereto. Lessee shall also have the right to install at its sole cost and
\nexpense signage as set forth in Exhibit F, subject to all applicable laws, codes
\nand ordinances. Lessor shall also provide marquee signage to Lessee.<\/p>\n
7.6 LESSEE’S CONSTRUCTION. Lessee shall construct all tenant
\nimprovements and shall conduct its operations so as to comply with the ADA to
\nthe extent applicable. Lessee hereby indemnifies and holds Lessor harmless
\nagainst any and all costs, expenses, legal fees, fines and penalties incurred by
\nLessor due to the failure of Lessee to comply with the ADA (provided, however,
\nsuch indemnity shall not extend to ADA matters which are included as part of
\nLessor’s Work, which shall be the sole responsibility of Lessor).<\/p>\n
7.7 LESSOR’S RESERVATIONS. Lessee acknowledges that this Lease is
\ngranted subject to the following reserved rights and interests:<\/p>\n
7.7.1 USE OF APPURTENANT IMPROVEMENTS. Lessor reserves all air
\nrights over the Premises, the use of the exterior walls and the roof; the right
\nto install, maintain, use, repair and replace pipes, ducts, conduits and wires
\nleading through the Premises in locations which will not materially interfere
\nwith Lessee’s use thereof to serve other parts of the Building, and the right to
\nuse the land below the Premises in any manner not materially interfering with
\nLessee’s use of the Premises.<\/p>\n
7.7.2 LESSOR’S ALTERATIONS AND ADDITIONS. Provided that there is
\nno material interference with Lessee’s use of the Premises, Lessor reserves the
\nright at any time to make alterations or additions to and to build additional
\nstories on the Building and to construct improvements adjoining the same.
\nProvided that there is no material interference with Lessee’s use of the
\nPremises, Lessor also reserves the right from time to time to add land, parking
\nareas and other improvements to the Land, to include the same within the Common
\nAreas, to establish reasonable rules and regulations regarding tenants’ access
\nthereto, to assess reasonable charges therefor, and to make alterations thereof
\nand improvements thereon.<\/p>\n
7.7.3 LESSOR’S EXCAVATION. If Lessor authorizes any excavation
\nupon land adjacent to the Premises, Lessee shall permit the person doing the
\nexcavation to enter the Premises for the purpose of doing such work as Lessor
\ndeems necessary to preserve the walls of the Building from injury or damage and
\nto support the same by proper piers, pilings, or foundations, without any claim
\nfor damage or indemnification against Lessor or diminution or abatement of rent,
\nprovided that there is no material interference with Lessee’s use of the
\nPremises caused thereby.<\/p>\n
7.7.4 ENTRY BY LESSOR. Lessor reserves and shall at any and all
\ntimes have the right, upon not less than twenty-four (24) hours’ prior written
\nnotice except in an emergency, to enter the Premises to inspect the same, to
\nsubmit said Premises to prospective purchasers or tenants, to post notices of
\nnonresponsibility, to repair the Premises and any portion of the Building of
\nwhich the Premises are a part that Lessor may deem necessary or desirable,
\nwithout abatement of rent, and Lessor may for that purpose erect scaffolding and
\nother necessary structures where reasonably required by the character of the
\nwork to be performed, except the entrance to the Premises shall not be blocked
\nthereby if the same can reasonably be avoided. Except to the extent caused by
\nLessor’s gross negligence, Lessee waives any claim for damages or for any injury
\nor inconvenience to or interference with Lessee’s business, any loss of
\noccupancy or quiet enjoyment of the Premises, and any other loss occasioned
\nthereby. For each of the aforesaid purposes, Lessor shall at all times have and
\nretain a key with which to unlock all of the doors in, upon and about the
\nPremises, excluding Lessee’s vaults, safes and files, and Lessor shall have the
\nright to use any means to open said doors in an emergency to obtain entry to the
\nPremises, all without liability to Lessee unless and to the extent Lessee
\nsuffers actual damages caused by any failure of Lessor to exercise reasonable
\ncare for Lessee’s property under the circumstances of the entry. Lessor shall at
\nall times keep Lessee apprised as to who has the key to the Premises. Any entry
\nto the Premises obtained by Lessor pursuant to this Lease or applicable law
\nshall not be construed to be a forcible or unlawful entry into, or a detainer
\nof, the Premises or an eviction of Lessee from the Premises or any portion
\nthereof. Subject to the other provisions of this Lease, Lessee shall have access
\nto the Premises 24 hours a day, seven days a week.<\/p>\n
7.7.5 COMMON AREAS AND FACILITIES. Lessor gives to Lessee and its
\nagents, employees, contractors and invitees a nonexclusive license to use the
\ncommon areas and facilities which are designed for access and use by all of
\nLessor’s tenants at the Building (the “COMMON AREAS”), subject to Lessor’s
\nrights to:<\/p>\n
(1) Establish and enforce reasonable uniform and
\n nondiscriminatory rules and regulations for the maintenance, management,
\n use and operation of the Common Areas.<\/p>\n
(2) Close any of the Common Areas to the extent required in the
\n reasonable opinion of Lessor to prevent a dedication of any of the Common
\n Areas or the accrual of any rights of any person or of the public to the
\n Common Areas.<\/p>\n
(3) Close any of the Common Areas temporarily for purposes of
\n cleaning, maintenance, repair, alterations, improvements or additions.<\/p>\n
(4) Designate other property to become part of the Common Areas.<\/p>\n
(5) Make changes to the Common Areas, including, without
\n limitation, changes in the arrangement and\/or location of passageways,
\n doors, doorways, corridors, elevators, stairs, or toilets; provided,
\n however, Lessor shall not make any change which will prevent access to the
\n Premises or materially change the character of the Building.<\/p>\n
(6) Limit access to parts of the Common Areas to retail or
\n office tenants and their respective employees, agents, invitees and
\n licensees.<\/p>\n
8. LESSEE’S ALTERATIONS AND ADDITIONS. Other than Lessee’s Work as
\nprovided elsewhere in this Lease, and except for nonstructural alterations,
\nadditions or improvements costing less than $5,000 per calendar year, Lessee
\nshall not make or allow to be made any alterations, additions or improvements to
\nthe Premises or any part thereof or change to the appearance of the Premises
\nwithout the prior written consent of Lessor in each instance, not to be
\nunreasonably withheld. Any alterations, additions or improvements to the
\nPremises made by Lessee shall be at Lessee’s sole cost and expense and made by a
\ncontractor approved by Lessor. Any alterations, additions or improvements to the
\nPremises, including, but not limited to, wall covering, paneling and built-in
\ncabinet work, but excepting trade fixtures, shall at once become a part of the
\nrealty and belong to Lessor and shall be surrendered with the Premises unless
\nLessor requires the same or any portion thereof to be removed upon the
\nexpiration or termination of this Lease. Notwithstanding the foregoing, at the
\ntime Lessor reviews Lessee’s plans and specifications for proposed alterations,
\nadditions and improvements, Lessor shall inform Lessee which must be so removed;
\nprovided that Lessor may elect to require Lessee to remove any and all<\/p>\n
alterations, additions and improvements made in violation of the first sentence
\nof this Section 8. If and to the extent Lessor requires such removal, Lessee
\nshall, at its expense, remove its alterations, additions or improvements upon
\nthe expiration or termination of this Lease and promptly repair any damage to
\nthe Premises caused by such removal.<\/p>\n
9. MAINTENANCE.<\/p>\n
9.1 LESSOR’S OBLIGATIONS. Subject to inclusion as Expenses (provided
\nthat expenses for any of the following items that constitute capital repairs,
\nimprovements, betterments, and\/or replacements must be amortized over the useful
\nlife of the item, together with interest on the unamortized balance at the prime
\nrate of interest then being charged by Seattle-First National Bank), Lessor
\nshall maintain or cause to be maintained in reasonably good order and condition
\nthe common and public areas and facilities of the Building; the central heating,
\nventilation and air conditioning, water, sewer, fire protection, exterior
\nmechanical and exterior electrical distribution systems and equipment serving
\nthe Building; and the structural portions of the roof, piers, pier pilings, and
\nBuilding, and shall provide patrolled security service to the Building. Lessor
\nshall be solely responsible for keeping the Building in good condition and
\nrepair except as otherwise specifically set forth herein as an obligation of
\nLessee. If any such maintenance or repair is required because of the act or
\nomission of Lessee or any person claiming through Lessee, or any of their
\nrespective agents, employees, contractors, or invitees, all costs and expenses
\nincurred by Lessor which are not reimbursed by Lessor’s insurance (or would not
\nbe covered by insurance which Lessor is required elsewhere in this Lease to
\nmaintain) shall be paid by Lessee on demand. Lessor shall not be liable for any
\nfailure to make any such repairs or to perform any maintenance unless such
\nfailure shall continue for an unreasonable time after written notice of the need
\nof such repairs or maintenance is given to Lessor by Lessee (such period not to
\nexceed thirty (30) days, but provided, however, that if the nature of the
\nrequired repair or maintenance is such that more than thirty (30) days are
\nrequired for its cure (including, for instance, the time required to obtain
\nnecessary construction permits and approvals), then Lessor shall not be deemed
\nto be in default if it commences such cure within such thirty (30)-day period
\nand thereafter diligently prosecutes the same to completion). Except as
\notherwise provided in this Lease, there shall be no abatement of rent and no
\nliability of Lessor by reason of any injury to or interference with Lessee’s
\nbusiness arising from the making of any repairs, alterations or improvements in
\nor to any portion of the Building or the Premises or in or to fixtures,
\nappurtenances and equipment therein. Lessee shall not have the right to make
\nrepairs at Lessor’s expense.<\/p>\n
9.2 LESSEE’S OBLIGATIONS. Lessee shall, at Lessee’s sole cost and
\nexpense, keep the Premises and every part thereof in good condition and repair
\n(except to the extent otherwise specifically set forth herein as an obligation
\nof Lessor), including, without limitation, the maintenance, replacement and
\nrepair of any doors and door hardware, windows, plate glass, glazing, plumbing,
\npipes, grease traps, vents and hoods, exhaust systems, and electrical wiring and
\nconduits within the Premises. Lessee shall, upon the expiration or sooner
\ntermination of this Lease, surrender the Premises to Lessor in good condition,
\nbroom clean, ordinary wear and tear and damage by condemnation and by casualty
\nexcepted. Any damage to adjacent premises or Common Areas caused by Lessee’s use
\nof the Premises which is not reimbursed by Lessor’s insurance (or would not be
\ncovered by insurance which Lessor is required elsewhere in this Lease to
\nmaintain) shall be repaired upon Lessor’s demand at the sole cost and expense of
\nLessee. In addition, Lessee agrees to provide janitorial services to the
\nPremises at its sole cost.<\/p>\n
10. LIENS. Lessee shall keep the Premises and the property in which the
\nPremises are situated free from any liens arising out of any work performed,
\nmaterials furnished or obligations incurred by Lessee. Lessor may require, at
\nLessor’s sole option, that Lessee provide to Lessor, at Lessee’s sole cost and
\nexpense, a lien and completion bond in an amount equal to one hundred fifty
\npercent (150%) of the estimated cost of any improvements, additions or
\nalterations in the Premises which Lessee desires to make to insure Lessor
\nagainst any liability for mechanics’ and materialmen’s liens and to insure
\ncompletion of the work. If a lien is asserted because of work performed by or
\nfor Lessee, Lessee shall, within ten (10) days after Lessor’s request, either
\ncause the lien claim to be paid in full or shall post a lien release bond in the
\namount of one hundred fifty percent (150%) of the amount of the lien. If Lessee
\nfails to do so, Lessor may pay the amount of the lien and recover the amount so
\npaid plus interest at twelve percent (12%) per annum from Lessee.<\/p>\n
11. UTILITIES.<\/p>\n
11.1 SERVICES PROVIDED. Lessor shall install and operate at Lessor’s
\ncost metering systems in or around the Premises to measure Lessee’s use of
\nelectricity, water and HVAC, and Lessee shall pay for such utility use (in the
\ncase of water and electricity, directly to the utility provider; and in the case
\nof HVAC, to Lessor). Lessee shall thus be solely responsible for determining the
\namount and duration of use of the HVAC, water and electricity supplied to the
\nPremises. Lessee, at its sole cost and expense, may install a back-up generator
\nin a location reasonably acceptable to Lessor.<\/p>\n
11.2 INTERRUPTION OF SERVICES. Unless due to the gross negligence or
\nwillful omission of Lessor, Lessor shall not be in default under this Lease and
\nshall not be liable for any damage directly or indirectly resulting from, nor
\nshall Lessee be relieved of any of its obligations hereunder by reason of:<\/p>\n
(1) The installation, use or interruption of use of any
\n equipment in connection with the furnishing of any utilities or services.<\/p>\n
(2) The failure to perform or furnish, or the delay in
\n performing or furnishing, any maintenance, repair, utilities or services
\n where such failure or delay is caused by acts of God, the elements, labor
\n disturbances of any character, any other accidents or other conditions
\n beyond the reasonable control of Lessor, or by the making of repairs or
\n improvements to the Premises or the Building.<\/p>\n
(3) The limitation, curtailment, rationing or restriction of use
\n of water or electricity, gas or any other form of energy or any other
\n service or utility serving the Premises or the Building by a public
\n authority or utility supplier. Lessor shall be entitled to cooperate
\n voluntarily in a reasonable manner with the efforts of national, state, or
\n local government agencies or utility suppliers in reducing energy or other
\n resource consumption.<\/p>\n
12. LESSEE’S ASSUMPTION OF RISK AND INDEMNITY.<\/p>\n
12.1 LESSOR NOT LIABLE. Except to the extent caused by Lessor’s breach
\nof this Lease or the gross negligence or intentional misconduct of Lessor or any
\nof its officers, agents, employees, guests or invitees, Lessor or its agents
\nshall not be liable for any loss or damage to persons or property resulting from
\nfire, explosion, falling plaster, steam, gas, electricity, water or rain which
\nmay leak from any part of the Building or from the pipes, appliances or plumbing
\nworks therein or from the roof, street or subsurface or from any other place.
\nExcept to the extent caused by Lessor’s breach of this Lease or the gross
\nnegligence or intentional misconduct of Lessor or any of its officers, agents,
\nemployees, guests or invitees, Lessor shall in no event be responsible for any
\nloss to the property or injury of Lessee, or any loss or injury of any agent,
\nindependent contractor, employee, licensee, invitee or customer of Lessee,
\nhowever the same may occur, and Lessee shall be solely responsible for carrying
\ninsurance against such loss. Lessor shall not be liable for any damages arising
\nfrom any act or neglect of any other tenant of the Building. Lessee shall give
\nprompt notice to Lessor in case of casualty or accidents in the Premises. Lessor
\nshall obtain and maintain throughout the Term property and liability insurance
\nin amounts and with coverages and deductibles as may be required pursuant to the
\nDNR Ground Lease and otherwise that would be maintained by reasonably prudent
\nholders of similarly situated properties in the general vicinity of the
\nBuilding.<\/p>\n
12.2 LESSEE’S INDEMNIFICATION. Except to the extent Lessor has
\nspecifically waived its right of recovery in this Lease, Lessee shall indemnify
\nand hold Lessor harmless against and from any and all claims arising from
\nLessee’s use of the Premises or from the conduct of its business or from any
\nactivity, work or other things done, permitted or suffered by Lessee in or about
\nthe Premises, and shall further indemnify and hold harmless Lessor against and
\nfrom any and all claims arising from any breach or default in the performance of
\nany obligation on Lessee’s part to be performed under the terms of this Lease,
\nor arising from any act or negligence of Lessee, or any officer, agent,
\nemployee, guest or invitee of Lessee, and from all costs, attorneys’ fees and
\nliabilities incurred in connection with the defense of any such claim or any
\naction or proceeding brought thereon. In any action or proceeding brought
\nagainst Lessor by reason of such claim, Lessee, upon notice from Lessor, shall
\ndefend the same at Lessee’s expense by counsel reasonably satisfactory to
\nLessor. Lessee, as a material part of the consideration to Lessor, hereby
\nassumes all risk of damage to property or injury to persons in, upon or about<\/p>\n
the Premises, from any cause other than Lessor’s gross negligence or intentional
\nmisconduct, and Lessee hereby waives all claims in respect thereof against
\nLessor. In no event shall any indemnity in the Lease by Lessee apply to the
\nextent of the gross negligence or intentional misconduct of Lessor or its
\nagents, employees, contractors, or invitees.<\/p>\n
12.2.1 LESSOR’S INDEMNIFICATION. Except to the extent Lessee has
\nspecifically waived its right of recovery in this Lease, Lessor shall indemnify
\nand hold Lessee harmless against and from any and all claims arising from any
\nbreach or default in the performance of any obligation on Lessor’s part to be
\nperformed under the terms of this Lease, or arising from any intentional
\nmisconduct or gross negligence of Lessor, or any officer, agent, employee, guest
\nor invitee of Lessor, and from all costs, attorneys’ fees and liabilities
\nincurred in connection with the defense of any such claim or any action or
\nproceeding brought thereon. In any action or proceeding brought against Lessee
\nby reason of such claim, Lessor, upon notice from Lessee, shall defend the same
\nat Lessor’s expense by counsel reasonably satisfactory to Lessee. In no event
\nshall any indemnity in the Lease by Lessor apply to the extent of the gross
\nnegligence or intentional misconduct of Lessee or its agents, employees,
\ncontractors, or invitees.<\/p>\n
12.2.2 WAIVER OF INDUSTRIAL INSURANCE ACT IMMUNITY. Solely for
\nthe purpose of effectuating each party’s indemnification obligations under this
\nLease, and not for the benefit of any third parties (including but not limited
\nto employees of Lessor or Lessee), each party specifically and expressly waives
\nany immunity that may be granted it under this Washington State Industrial
\nInsurance Act, Title 51 RCW. Furthermore, the indemnification obligations under
\nthis Lease shall not be limited in any way by any limitation on the amount or
\ntype of damages, compensation or benefits payable to or for any third party
\nunder Worker Compensation Acts, Disability Benefit Acts or other employee
\nbenefit acts. The parties acknowledge that the foregoing provisions of this
\nSection have been specifically and mutually negotiated between the parties.<\/p>\n
12.3 WAIVER OF SUBROGATION. As long as and to the full extent their
\nrespective insurers so permit, Lessor and Lessee hereby mutually waive their
\nrespective rights of recovery against each other for any property damage to the
\nextent insured by any insurance policies or which would have been insured had
\nthe parties maintained the policies required hereunder to be maintained. Each
\nparty shall make a good faith effort to obtain any special endorsements required
\nby their insurer to evidence its agreement with such waiver.<\/p>\n
12.4 LIABILITY INSURANCE. Lessee shall, at Lessee’s expense, obtain
\nand keep in force during the Term of this Lease a policy of comprehensive public
\nliability insurance insuring Lessor and Lessee against any liability arising out
\nof the ownership, use, occupancy or maintenance of the Premises and all areas
\nappurtenant thereto. Such insurance shall be issued by and insurance company
\nlicensed to do so in the State of Washington having a rating of no less than A-
\nVIII by A.M. Best, written on a claims made basis and encompass all occurrences
\nwithin the Term of this Lease in the amount of not less than Three Million
\nDollars ($3,000,000) per occurrence for personal injury or death and property
\ndamage. The limit of any such insurance shall not, however, limit the liability
\nof Lessee hereunder. If Lessee shall fail to procure and maintain said
\ninsurance, Lessor may, but shall not be required to, procure and maintain same,
\nbut at the expense of Lessee. Lessee shall deliver to Lessor copies of policies
\nof liability insurance required herein or Evidence of Insurance showing the
\nexistence and amounts of such insurance with loss payable clauses satisfactory
\nto Lessor listing Lessor as an additional insured, with an endorsement requiring
\nat least thirty (30) days’ prior written notice to Lessor prior to cancellation
\nor modification. All such policies shall be written as primary policies not
\ncontributing with and not in excess of coverage which Lessor may carry. Said
\npolicy, or an exact copy thereof, Evidences thereof issued by the insurer or its
\nauthorized agent, and receipts evidencing the timely payment of all premiums
\ntherefor shall be promptly delivered to Lessor upon request.<\/p>\n
Not more frequently than every three years during the Term of this Lease,
\nLessor may require increases in the amount of liability coverage required to be
\nmaintained by Lessee if Lessor reasonably determines that increased coverages
\nare consistent with then prudent leasing practices for similarly situated uses.<\/p>\n
If, during the Term of this Lease, Lessee sells alcoholic beverages from
\nthe Premises (whether or not a license is required for the sale of such
\nbeverages), Lessee shall also maintain liquor liability insurance in such
\namounts, and with such coverages and endorsements, as Lessor may reasonably
\nrequire.<\/p>\n
13. RECONSTRUCTION OF DAMAGE BY CASUALTY.<\/p>\n
13.1 REPAIR REQUIREMENTS; ABATEMENT OF RENT. If the Premises are
\ndamaged by fire or other insured casualty and the estimated costs to repair the
\nsame are less than Two Hundred Fifty Thousand Dollars ($250,000), Lessor shall
\nrepair the same; provided, however, Lessor may elect not to restore damage (a)
\nwhich occurs within the last six (6) months of the Lease Term (unless Lessee has
\nexercised a renewal option), (b) which is not covered by Lessor’s insurance
\npolicy (permitted deductibles excepted) or the proceeds of which are not
\navailable to pay the costs of restoration, or (c) any other portion of the
\nBuilding is damaged to the extent Lessor elects not to restore the same. If the
\nPremises or any other portion of the Building are so damaged and Lessor’s
\nestimate of the repair costs exceeds Two Hundred Fifty Thousand Dollars
\n($250,000), either party may elect to cancel this Lease; provided that, if this
\nLease is not cancelled by either party and Lessor so elects to repair, Lessor
\nshall not be obligated to spend more than the amount of the insurance proceeds
\npaid for such casualty. If Lessor elects to repair the damage, it shall
\ndiligently pursue such repair, subject to force majeure, to completion in a
\ncommercially reasonable manner, and this Lease shall remain in effect and Lessee
\nshall be entitled to a proportionate reduction of the Base Rent from the date of
\ndamage and while such repairs are being made, such proportionate reduction to be
\nbased upon the extent to which the damage and repairs interfere with the
\nbusiness carried on by Lessee in the Premises. If the damage is due to the fault
\nor neglect of Lessee or its employees, there shall be no abatement of rent.<\/p>\n
13.2 CANCELLATION OF LEASE. In any situation where a party has the
\nright to cancel the Lease as aforesaid due to damage or destruction, that party
\nshall give written notice of said election within sixty (60) days after the date
\nof the damage and this Lease shall end as of the date specified in such notice.
\nIf this Lease is so canceled, all interest of Lessee in the Premises shall
\nterminate on the date specified in such notice and the rent shall be paid up to
\nthe date of such termination, with Base Rent reduced by the extent, if any, to
\nwhich such damage interfered with the business carried on by Lessee in the
\nPremises. If Lessor is not able to complete restoration of the Building within
\ntwelve (12) months following the date of damage, Lessee may elect to terminate
\nthis Lease (provided that the damage was not due to the fault or negligence of
\nLessee or its agents, employees or independent contractors).<\/p>\n
13.3 REPAIR OF LESSEE’S PROPERTY. Lessor shall not be required to
\nrepair any injury or damage by fire or other cause, or to make any repairs or
\nreplacements of any leasehold improvements, fixtures, any plate glass anywhere
\non or about the Premises, or other personal property of Lessee. Lessee shall
\npromptly repair all such items following any such casualty.<\/p>\n
14. EMINENT DOMAIN.<\/p>\n
14.1 TOTAL CONDEMNATION. If the whole of the Premises shall be
\nacquired or condemned by eminent domain for any public or quasi-public use or
\npurpose, then the Term of this Lease shall terminate and cease as of the date
\nthat title or possession shall be transferred in such proceeding, whichever
\nshall first occur, and all rent shall be paid up to that date and Lessee shall
\nhave no claim against Lessor for the value of any unexpired Term of this Lease.<\/p>\n
14.2 PARTIAL CONDEMNATION. If more than twenty percent (20%) of the
\nPremises is appropriated or condemned by eminent domain, or if such portion of
\nthe Land or Building is appropriated or condemned which materially affects the
\nability of Lessee physically to operate its business and Lessor is unable to
\nremodel in such a way as to restore the Premises, then Lessor and Lessee both
\nshall have the right to terminate this Lease upon notice to the other party
\nwithin thirty (30) days after being notified of the appropriation or
\ncondemnation. This Lease shall be deemed terminated as of the date title or
\npossession shall be transferred to the condemning authority, whichever shall
\nfirst occur. If less than twenty percent (20%) of the Premises is appropriated
\nor condemned or if such portion of the Land or Building is appropriated or
\ncondemned which does not affect Lessee’s ability to operate its business, or if
\nneither party elects to terminate the Lease as provided herein, then Lessor
\npromptly shall restore the Premises to a condition comparable to its condition
\nat the time of the appropriation or condemnation, less the portion lost in the
\nappropriation or condemnation, and this Lease shall continue in full force and
\neffect; provided, however, the Base Rent and Lessee’s Share of Expenses due
\nhereunder shall abate, as of the date title or possession shall be transferred
\nto the condemning authority, whichever shall first occur, to an amount equal to
\nthe base rent otherwise payable multiplied by a fraction, the numerator of which<\/p>\n
is the square footage of space remaining in the Premises and the denominator of
\nwhich is the square footage of space originally part of the Premises.<\/p>\n
14.3 LESSOR’S DAMAGES. In the event of any condemnation or taking,
\nwhether whole or partial, Lessee shall not be entitled to any part of the award
\nas damages or otherwise for such condemnation, Lessee hereby expressly waiving
\nany claim or right to any part thereof.<\/p>\n
14.4 LESSEE’S DAMAGES. Although all damages in the event of any
\ncondemnation are to belong to Lessor, Lessee shall have the right to claim and
\nrecover from the condemning authority, but not from Lessor, such amount as may
\nbe separately awarded or recoverable by Lessee in Lessee’s own right on account
\nof any and all damage to Lessee’s property by reason of the condemnation and for
\nor on account of any costs or loss to which Lessee might be put in removing
\nfurniture, fixtures and equipment.<\/p>\n
14.5 TEMPORARY TAKING. No temporary taking of the Premises and\/or of
\nLessee’s rights therein or under this Lease shall terminate this Lease or give
\nLessee any right to any abatement of rent hereunder. Any award made to Lessee by
\nreason of any such temporary taking shall belong entirely to Lessee, and Lessor
\nshall not be entitled to share therein.<\/p>\n
14.6 VOLUNTARY SALE. A voluntary sale by Lessor to any public body or
\nagency having the power of eminent domain, either under threat of condemnation
\nor while condemnation proceedings are pending, shall be deemed to be a taking
\nunder the power of eminent domain.<\/p>\n
15. LESSEE’S DEFAULT. The occurrence of any one or more of the following
\nevents shall constitute a default and breach of this Lease by Lessee:<\/p>\n
(1) The vacating or abandonment of the Premises by Lessee or the
\n failure of Lessee to keep the Premises continuously open for business to
\n the public as required by this Lease.<\/p>\n
(2) Lessee’s failure to make any payment of rent or any other
\n payment required to be made by Lessee hereunder, as and when due, where
\n such failure shall continue for a period of three (3) days after written
\n notice thereof by Lessor to Lessee.<\/p>\n
(3) Except as provided in (1), (2) and (4) of this Section, any
\n failure by Lessee to observe or perform any of the covenants, conditions or
\n provisions of this Lease to be observed or performed by Lessee where such
\n failure shall continue for a period of thirty (30) days after written
\n notice thereof by Lessor to Lessee; provided, however, that if the nature
\n of Lessee’s default is such that more than thirty (30) days are reasonably
\n required for its cure, then Lessee shall not be deemed to be in default if
\n Lessee commences such cure within five (5) days after Lessor’s notice and
\n thereafter diligently prosecutes such cure to completion.<\/p>\n
(4) The making by Lessee of any general assignment or general
\n arrangement for the benefit of creditors; or the filing by or against
\n Lessee of a petition to have Lessee adjudged a bankrupt, of a petition or
\n reorganization or arrangement under any law relating to bankruptcy (unless,
\n in the case of a petition filed against Lessee, the same is dismissed
\n within ninety (90) days); or the appointment of a trustee or a receiver to
\n take possession of substantially all of Lessee’s assets located at the
\n Premises or of Lessee’s interest in this Lease, where possession is not
\n restored to Lessee within ninety (90) days; or the attachment, execution or
\n other judicial seizure of substantially all of Lessee’s assets located at
\n the Premises or of Lessee’s interest in this Lease, where such seizure is
\n not discharged in ninety (90) days.<\/p>\n
(5) Any assignment or subletting by Lessee in violation of this
\n Lease.<\/p>\n
16. LESSOR’S REMEDIES UPON DEFAULT. In the event of any default under or
\nbreach of this Lease by Lessee (after any applicable cure periods have expired),
\nLessor may, at any time thereafter, with or without notice or demand and without
\nlimiting any right or remedy which Lessor may have by reason of such default or
\nbreach, exercise any of the following remedies:<\/p>\n
(1) Lessor may continue this Lease in full force and effect, and
\n this Lease shall continue in full force and effect as long as Lessor does
\n not terminate this Lease, and Lessor shall have the right to collect rent<\/p>\n
and other amounts when due.<\/p>\n
(2) Lessor may terminate Lessee’s right to possession of the
\n Premises at any time by giving written notice to that effect and may relet
\n the Premises and no other notice shall be required. Lessee shall be liable
\n immediately to Lessor for all costs Lessor incurs in reletting the Premises
\n or any part thereof, including, without limitation, broker’s commissions,
\n expenses of cleaning the Premises required by the reletting and like costs.
\n Reletting may be for a period shorter or longer than the remaining Term of
\n this Lease and for a part or all of the Premises. No act by Lessor other
\n than giving written notice to Lessee shall terminate this Lease. Acts of
\n maintenance, efforts to relet the Premises or the appointment of a receiver
\n on Lessor’s initiative to protect Lessor’s interest under this Lease shall
\n not constitute a termination of Lessee’s right to possession. On
\n termination, Lessor has the right to remove all Lessee’s personal property
\n which Lessee does not remove and store same at Lessee’s cost and to recover
\n from Lessee as damages:<\/p>\n
(i) The worth at the time of award of unpaid rent and other sums due and
\n payable which had been earned at the time of termination; plus<\/p>\n
(ii) The worth at the time of award of the amount by which the unpaid rent
\n and other sums which would have been payable after termination but
\n before the time of award exceeds the amount of such rent loss that
\n Lessee proves could have been reasonably avoided; plus<\/p>\n
(iii) The worth at the time of award of the amount by which the unpaid rent
\n and other sums due and payable for the balance of the regularly
\n scheduled Term and any exercised extensions thereof after the time of
\n award exceeds the amount of such rent loss that Lessee proves can be
\n reasonably avoided; plus<\/p>\n
(iv) The other amounts which are necessary to compensate Lessor for the
\n damages proximately caused by Lessee’s failure to perform Lessee’s
\n obligations under this Lease or which would be likely to result
\n therefrom: (1) in retaking possession of the Premises; (2) in
\n maintaining, repairing, preserving, restoring, replacing, cleaning,
\n altering or rehabilitating the Premises or any portion thereof,
\n including such acts for reletting to a new lessee or lessees; (3) for
\n leasing commissions; or (4) for any other costs necessary or
\n appropriate to relet the Premises. Lessor shall also be entitled to
\n recover the unamortized cost of any Lessor’s Work, Tenant Improvement
\n Allowance, and free\/reduced rent periods or other incentives granted
\n to Lessee under this Lease, such unamortized portion being determined
\n by reference to the number of months during which Lessee was not in
\n default under this Lease and the total number of months in the
\n initial Lease Term and any exercised extensions thereof, all on a
\n straight line basis. The “worth at the time of award” of the amounts
\n referred to in subsections (i) and (ii) above is computed by allowing
\n interest at the Default Rate (as hereinafter defined) on the unpaid
\n rent and other sums due and payable from the termination date through
\n the date of award. The “worth at the time of award” of the amount
\n referred to in subsection (iii) above is computed by discounting such
\n amount at the discount rate of the Federal Reserve Bank of San
\n Francisco at the time of award.<\/p>\n
(3) Lessor may perform or provide the same, together with
\n interest on such costs accruing at the lesser rate (the “DEFAULT RATE”) of
\n (i) twelve percent (12%) per annum, or (ii) the maximum rate permitted by
\n applicable law, computed from the date of Lessor’s payment of such costs to
\n the date of reimbursement.<\/p>\n
(4) Lessor may have a receiver appointed for Lessee to take
\n possession of the Premises and to apply any rent collected from the
\n Premises and to exercise all other rights and remedies granted to Lessor as
\n an attorney-in-fact for Lessee.<\/p>\n
(5) Lessor may attach, assemble, store and dispose of all of
\n Lessee’s fixtures and property remaining on the Premises.<\/p>\n
(6) Lessor may pursue any other remedy now or hereafter
\n available to Lessor under the laws or judicial decisions of the State of
\n Washington. Lessor may sue periodically to recover damages as they accrue
\n under this Lease, and no one action for accrued damages shall be a bar to a<\/p>\n
later action for damages subsequently accruing.<\/p>\n
17. LESSOR’S DEFAULT. Lessor shall not be in default unless Lessor fails
\nto perform obligations required of Lessor within a reasonable time, but in no
\nevent later than thirty (30) days after written notice by Lessee to Lessor and
\nto the holder of any first mortgage or deed of trust covering the Premises whose
\nname and address shall have theretofore been furnished to Lessee in writing and
\nspecifying how Lessor has failed to perform such obligations and the acts
\nrequired to cure the same; provided, however, that if the nature of Lessor’s
\nobligation is such that more than thirty (30) days are required for performance,
\nLessor shall not be in default if Lessor commences performance within such
\nthirty (30) day period and thereafter diligently prosecutes the same to
\ncompletion. A Lessor default under the DNR Ground Lease that results in a
\ntermination thereof shall also constitute a default under this Lease.<\/p>\n
18. LESSEE’S REMEDIES UPON DEFAULT. Lessee shall have the right to recover
\nits actual damages caused by any default of Lessor under this Lease. In no event
\nshall Lessee have the right to offset damages against rent or to terminate this
\nLease as a result of Lessor’s default, or to seek consequential or punitive
\ndamages against Lessor for a default hereunder.<\/p>\n
19. ASSIGNMENT AND SUBLETTING.<\/p>\n
19.1 REQUIRED CONSENTS. Lessee shall not, without the prior written
\nconsent of Lessor, which shall not be unreasonably withheld, delayed or
\nconditioned, pursuant to the terms and conditions below, assign or hypothecate
\nthis Lease or any interest herein or sublet the Premises or any part thereof, or
\npermit the use of the Premises by any party other than Lessee. For the purposes
\nhereof, any corporate or partnership dissolution, liquidation or merger, which
\nresults in a change of ownership of a majority of Lessee’s shares, and any
\ntransfer of the corporate shares or general partnership interests holding a
\nmajority of the voting rights in Lessee, whether in a single or any number of
\ntransactions cumulatively, shall be considered an assignment of this Lease. Any
\nof the foregoing acts without Lessor’s prior written consent shall be void and
\nshall, at the option of Lessor, terminate this Lease. This Lease shall not, nor
\nshall any interest of Lessee herein, be assignable by operation of law without
\nthe written consent of Lessor. Lessor may not exercise any recapture rights when
\nLessee requests consent for subleases with terms of not more than two (2) years
\nwhich demise not more than 5,000 RSF.<\/p>\n
19.2 LESSOR’S OPTIONS AND APPROVAL STANDARDS. If Lessee desires to
\nassign this Lease or sublet all or any part of the Premises, Lessee shall give
\nnotice to Lessor setting forth the terms and provisions of the proposed
\nassignment or sublease and the identity of the proposed assignee or subtenant.
\nLessee shall promptly supply Lessor with such information concerning the
\nbusiness background and financial condition of such proposed assignee or
\nsubtenant as Lessor may reasonably request. Lessor shall have the option,
\nexercisable by notice given to Lessee within (20) days after Lessee’s notice is
\ngiven, either to (i) sublet such space from Lessee at the rental and on the
\nother terms set forth in this Lease for the Term set forth in Lessee’s notice
\n(excluding any provisions restricting further assignments or subletting), or, in
\nthe case of an assignment, to terminate this Lease by written notice to Lessee;
\n(ii) approve the subletting or assignment, under the terms and conditions of
\nSections 19.4 and 19.5 below; or (iii) deny the requested assignment or
\nsubletting by written notice to Lessee. If Lessor elects to terminate this Lease
\npursuant to (ii) above, Lessee may, by written notice given to Lessor within ten
\n(10) days after receipt of Lessor’s written termination notice, elect to rescind
\nits request for consent, whereupon Lessor’s termination notice shall be
\nineffective and this Lease shall continue in full force and effect as if Lessee
\nhad not requested Lessor consent to an assignment.<\/p>\n
19.3 PERMITTED TRANSFERS. Notwithstanding the provisions above, Lessee
\nmay assign this Lease or sublet the Premises or any portion thereof, without the
\nLessor’s consent and without extending any recapture or termination option to
\nLessor, to any corporation which controls, is controlled by or is under common
\ncontrol with Lessee, or to any corporation resulting from a merger or
\nconsolidation with Lessee, or to any person or entity which acquires all the
\nassets of Lessee’s business as a going concern, provided that (a) the assignee
\nor sublessee assumes, in full, the obligations of Lessee under this Lease, and
\n(b) the Premises continue to be occupied and used only for the purposes
\nexpressly permitted by this Lease, and (c) the transferee (and any guarantors
\nthereof) has a net worth of not less than $20 million and otherwise satisfies
\nLessor’s then-current credit standards for tenants of the Building, and in
\nLessor’s reasonable opinion has the financial strength and stability to perform<\/p>\n
all obligations under this Lease to be performed by Lessee as and when they fall
\ndue.<\/p>\n
19.4 NO RELEASES. No subletting or assignment (including those deemed
\napproved pursuant to Section 19.3) shall release Lessee from Lessee’s
\nobligations under this Lease or alter the primary liability of Lessee to pay the
\nrent and to perform all other obligations to be performed by Lessee hereunder.
\nAs a condition to Lessor’s approval, any potential assignee otherwise approved
\nby Lessor shall assume all obligations of Lessee under this Lease and shall be
\njointly and severally liable with Lessee for the payment of rent and performance
\nof all terms, covenants and conditions of this Lease. The acceptance of rent by
\nLessor from any other person shall not be deemed to be a waiver by Lessor of any
\nprovision hereof. Consent to one assignment or subletting shall not be deemed
\nconsent to any subsequent assignment or subletting. In the event of default by
\nan assignee or subtenant of Lessee or any successor of Lessee in the performance
\nof any of the terms hereof, Lessor may proceed directly against Lessee without
\nthe necessity of exhausting remedies against such assignee, subtenant or
\nsuccessor. Lessor may consent to subsequent assignments of the Lease or
\nsublettings or amendments or modifications to the Lease with assignees of Lessee
\nafter notice to Lessee, or any successor of Lessee, but without obtaining its or
\ntheir consent thereto, and any such actions shall not relieve Lessee of
\nliability under this Lease.<\/p>\n
19.5 CONDITIONS TO LESSOR’S CONSENT. If Lessor has not elected option
\n(i) in Section 19.2 above, it will not unreasonably withhold its consent to an
\nassignment or subletting if all of the following conditions precedent are fully
\nand completely satisfied:<\/p>\n
(1) The proposed transferee (and any guarantors thereof) has a
\n net worth of not less than $20 million and otherwise satisfies Lessor’s
\n then-current credit standards for tenants of the Building, and in Lessor’s
\n reasonable opinion has the financial strength and stability to perform all
\n obligations under this Lease to be performed by Lessee as and when they
\n fall due; and<\/p>\n
(2) The proposed transferee will use the Premises for a purpose
\n which in Lessor’s reasonable opinion will be lawful, is consistent with the
\n permitted uses of the Premises pursuant to this Lease, is consistent with
\n the general character of business carried on by tenants of first-class
\n waterfront buildings, does not conflict with any exclusive rights or
\n covenants not to compete in favor of any other tenant or proposed tenant in
\n the Building, will not increase the likelihood of damage or destruction,
\n will not increase the rate or wear and tear on the Premises or Building,
\n will not likely cause an increase in Lessor’s insurance premiums for the
\n Building (unless the proposed transferee agrees to pay for such increase),
\n and will not require new tenant improvements to the Building or the
\n Premises;<\/p>\n
(3) Lessee has paid to Lessor a fee of $750.00 in advance each
\n time Lessee or any permitted assignee, subtenant, or other transferee
\n requests Lessor’s consent, to compensate Lessor for the time and expense
\n incurred in reviewing such request; and<\/p>\n
(4) The assignment or sublease shall be on the same terms set
\n forth in the request notice given to Lessor;<\/p>\n
(5) No assignment or sublease shall be valid and no assignee or
\n sublessee shall take possession of the Premises until an executed
\n counterpart of such assignment or sublease and the assignee’s or
\n sublessee’s assumption of Lessee’s obligations under this Lease has been
\n delivered to Lessor;<\/p>\n
(6) No assignee or sublessee shall have a further right to
\n assign or sublet except on the terms herein contained or as otherwise
\n permitted in this Lease; and<\/p>\n
(7) Half of any sums or other economic consideration received by
\n Lessee as a result of such assignment or subletting, however denominated
\n under the assignment or sublease, which exceed, in the aggregate, (i) the
\n total sums which Lessee is obligated to pay Lessor under this Lease
\n (prorated to reflect obligations allocable to any portion of the Premises
\n subleased), plus (ii) any real estate brokerage commissions or fees payable
\n in connection with such assignment or subletting, shall be paid to Lessor
\n as additional rent under this Lease without affecting or reducing any other<\/p>\n
obligations of Lessee hereunder.<\/p>\n
20. GENERAL PROVISIONS.<\/p>\n
20.1 RULES AND REGULATIONS. Lessee shall faithfully observe and comply
\nwith the reasonable rules and regulations that Lessor shall from time to time
\npromulgate and\/or modify with respect to use of the Premises, Common Areas and
\ncommon facilities. The rules and regulations shall be binding upon Lessee thirty
\n(30) days after delivery of a copy of them to Lessee. Lessor shall not be
\nresponsible to Lessee for the nonperformance of any of said rules and
\nregulations by any other tenants. A copy of Lessor’s current rules are attached
\nhereto as EXHIBIT C.<\/p>\n
20.2 INTERPRETATION.<\/p>\n
20.2.1 PLATS AND RIDERS. Clauses, plats, riders and addenda, if
\nany, affixed to this Lease are a part hereof.<\/p>\n
20.2.2 CONSTRUCTION AS COVENANTS. Wherever in this Lease it is
\nprovided that either party shall or will make any payment or perform or refrain
\nfrom performing any act or obligation, each such provision shall, even though
\nnot so expressed, be construed as an express covenant to make such payment or to
\nperform, or not to perform, as the case may be, such act or obligation.<\/p>\n
20.2.3 SECTION HEADINGS. The Section headings and article titles
\nof this Lease shall have no effect upon the construction or interpretation of
\nany part hereof.<\/p>\n
20.2.4 TIME OF PERFORMANCE. Time is of the essence of this Lease
\nand each and all of its provisions in which performance is a factor.<\/p>\n
20.2.5 PARTIAL INVALIDITY. Any provision of this Lease which is
\nheld to be invalid, void or illegal by any court of competent jurisdiction shall
\nin no way affect, impair or invalidate any other provision hereof.<\/p>\n
20.2.6 RENT. All references to “rent” in this Lease shall include
\nBase Rent, Lessee’s Share of Expenses, and all other charges and fees payable by
\nLessee hereunder.<\/p>\n
20.2.7 UNITED STATES FUNDS. All sums herein mentioned shall be
\nconclusively deemed to refer to the lawful currency of the United States.<\/p>\n
20.2.8 CHOICE OF LAW. This Lease shall be governed by the laws of
\nthe State of Washington.<\/p>\n
20.3 LEGAL RELATIONSHIPS.<\/p>\n
20.3.1 AUTHORITY OF PARTIES. Each individual executing this Lease
\non behalf of Lessee represents and warrants that he or she is duly authorized to
\nexecute and deliver this Lease and that this Lease is binding upon Lessee in
\naccordance with its terms.<\/p>\n
20.3.2 NO PARTNERSHIP. This Lease shall not be construed as
\nestablishing a partnership or joint venture between Lessor and Lessee, and
\nneither party shall be liable for the debts or obligations of the other, except
\nto the extent specifically and expressly agreed to herein. Except as provided
\nherein, neither party hereto may make any representation or create any liability
\non behalf of the other, and no rights in any third party shall arise by virtue
\nof these presents.<\/p>\n
20.3.3 JOINT OBLIGATION. If there be more than one Lessee or
\nassignee of Lessee, the obligations hereunder imposed shall be joint and
\nseveral.<\/p>\n
20.3.4 SUCCESSORS AND ASSIGNS. The covenants and conditions
\nherein contained, subject to the restrictions upon assignments, apply to and
\nbind the heirs, successors, executors, administrators and assigns of the parties
\nhereto.<\/p>\n
20.4 REMEDIES AND LIABILITY.<\/p>\n
20.4.1 CUMULATIVE REMEDIES. No remedy or election hereunder shall
\nbe deemed exclusive but shall, wherever possible, be cumulative with all other
\nremedies available at law or in equity.<\/p>\n
20.4.2 GUARANTY. [Intentionally deleted].<\/p>\n
20.4.3 NO WAIVERS. No express or implied waiver by either party
\nof any event of default shall in any way be or be construed to be a waiver of
\nany future or subsequent event of default. The written waiver by either party of
\nany term, covenant or condition herein contained shall not be deemed to be a
\nwaiver of such term, covenant or condition or any subsequent breach of the same
\nor any other term, covenant or condition herein contained. The subsequent
\nacceptance of rent hereunder by Lessor shall not be deemed to be a waiver of any
\npreceding default by Lessee of any term, covenant or condition of this Lease,
\nother than the failure of Lessee to pay the particular rental so accepted,
\nregardless of Lessor’s knowledge of such preceding default at the time of the
\nacceptance of such rent.<\/p>\n
20.4.4 INABILITY TO PERFORM. Except to the extent otherwise
\nprovided in this Lease, and except for Lessee’s monetary obligations hereunder,
\nthis Lease and the obligations of the parties hereunder shall not be affected or
\nimpaired because such party is unable to fulfill any of its obligations
\nhereunder or is delayed in doing so if such inability or delay is caused by
\nreason of strike, labor troubles, acts of God or any other cause beyond the
\nreasonable control of such party.<\/p>\n
20.4.5 SALE OF PREMISES BY LESSOR. In the event of any sale of
\nthe Premises by Lessor, Lessor shall automatically be released from all
\nliability under this Lease arising out of any act, occurrence or omission
\noccurring after the consummation of such sale.<\/p>\n
20.4.6 LIMITATION ON LIABILITY. Anything in this Lease to the
\ncontrary notwithstanding, no shareholder, trustee, officer, employee or agent of
\nthe parties shall be personally liable for any debt, claim, demand, judgment,
\ndecree, liability or obligation of any kind (in tort, contract or otherwise)
\n(each of which, a “Claim”) of, against or with respect to such party arising out
\nof any action taken or omitted to be taken for or on behalf of such party under
\nand pursuant to this Lease. With respect to Claims against Lessor, resort shall
\nbe made solely to Lessor’s interest in the Land and Building for the payment or
\nperformance thereof.<\/p>\n
20.4.7 ATTORNEYS’ FEES. If any action or proceeding is brought by
\neither party against the other under this Lease, the substantially prevailing
\nparty shall be entitled to recover from the other party the reasonable fees of
\nits attorneys and court costs in such action or proceeding, including costs of
\nappeal and on petition for review, if any.<\/p>\n
20.5 LENDERS’ REQUIREMENTS.<\/p>\n
20.5.1 DNR, LENDERS’ REQUIRED REVISIONS. Lessee agrees to make
\nsuch changes herein as may be requested by Lessor’s lenders or DNR so long as
\nsuch do not increase amounts due from Lessee hereunder or otherwise materially
\nalter its rights or obligations hereunder.<\/p>\n
20.5.2 LESSEE’S STATEMENT. Lessee shall, upon not less than ten
\n(10) days’ prior written notice from Lessor, execute, acknowledge and deliver to
\nLessor a statement in writing (a) certifying that this Lease is unmodified and
\nin full force and effect (or, if modified, stating the nature of such
\nmodification and certifying that this Lease as so modified is in full force and
\neffect) and the date to which the rental and other charges are paid, (b)
\nacknowledging that there are not, to Lessee’s knowledge, any uncured defaults on
\nthe part of Lessor hereunder, or specifying such defaults if any are claimed,
\nand (c) setting forth the date of commencement of rents and expiration of the
\nTerm hereof. Any such statement may be relied upon by any prospective purchaser
\nor encumbrancer of all or any portion of the Land.<\/p>\n
20.5.3 SUBORDINATION, ATTORNMENT. Upon the request of Lessor,
\nLessee shall, in writing, subordinate its rights hereunder to the lien of any
\nmortgage or deed of trust to any bank, insurance company or other lending
\ninstitution, now or hereafter in force against the Premises; provided that, with
\nrespect to mortgages and deeds of trust granted subsequent to the date of mutual
\nexecution hereof, Lessee’s use and occupancy of the Premises shall not be
\ndisturbed so long as Lessee is not in default beyond applicable notice and cure
\nperiods. If any proceedings are brought for foreclosure, or in the event of the
\nexercise of the power of sale under any mortgage or deed of trust made by Lessor
\ncovering the Premises, Lessee shall attorn to the purchaser upon any such
\nforeclosure or sale and recognize such purchaser as Lessor under this Lease. The<\/p>\n
provisions of this Section to the contrary notwithstanding, and so long as
\nLessee is not in default hereunder, this Lease shall remain in full force and
\neffect for the full Term hereof. Lessor agrees that if Lessee timely pays the
\nRent and performs the terms and provisions hereunder, Lessee shall hold and
\nenjoy the Premises during the Term, free of lawful claims by any party acting by
\nor through Lessor, subject to all other terms and provisions of this Lease.<\/p>\n
20.6 BROKERS. Each party warrants that it has had no dealings with any
\nreal estate broker or agent in connection with the negotiation of this Lease
\nother than CB Richard Ellis, Inc., (Lessor’s broker) and Flinn Ferguson
\n(Lessee’s broker) and each party knows of no other real estate broker or agent
\nwho is entitled to a commission in connection with this Lease. Lessor shall pay
\na fee to Flinn Ferguson for services rendered of $3.50 per RSF of the Premises,
\none-half (1\/2) of which shall be paid to Flinn Ferguson upon execution of this
\nLease, and the remaining one-half (1\/2) of which shall be paid to Flinn Ferguson
\non the Occupancy Date as to the Initial Phase I Space.<\/p>\n
20.7 VENUE. The venue of any action brought to interpret or enforce
\nany of the terms of this Lease or otherwise adjudicate the rights or liabilities
\nof the parties hereto shall be laid in the county in which the Premises are
\nlocated.<\/p>\n
20.8 NOTICES. All notices and demands which may or are to be required
\nor permitted to be given hereunder shall be in writing. All notices and demands
\nby Lessor to Lessee shall be sent by U.S. mail, postage prepaid, addressed to
\nLessee at its address listed below or to such other place as Lessee may from
\ntime to time designate in a written notice to Lessor. All notices and demands by
\nLessee to Lessor shall be sent by U.S. mail, postage prepaid, addressed to
\nLessor at the address listed below, and to such other person or place as Lessor
\nmay from time to time designate in a notice to Lessee. The parties’ initial
\naddresses for notices shall be as stated in the Basic Lease Terms.<\/p>\n
20.9 RECORDATION. Neither Lessor nor Lessee may record this Lease.<\/p>\n
20.10 ENTIRE AGREEMENT. This Lease contains all of the
\nagreements of the parties hereto with respect to any matter covered or mentioned
\nin this Lease, and no prior agreements or understanding pertaining to any such
\nmatters shall be effective for any purpose. No provision of this Lease may be
\namended or added to except by an agreement in writing signed by the parties
\nhereto or their respective successors in interest. This Lease shall not be
\neffective or binding upon any party until fully executed by both parties hereto.<\/p>\n
20.11 ADDITIONAL PROVISIONS. Any additional provisions of this
\nLease are set forth in EXHIBIT D attached hereto and by this reference
\nincorporated herein. IN WITNESS WHEREOF, the parties have executed this Lease as
\nof the day and year first above written.<\/p>\n
LESSOR: TRIAD PIER 70 LLC, a Washington limited
\n liability company<\/p>\n
By:
\n ————————————-
\n Print Name: Frederick W. Grimm
\n Title: Managing Member<\/p>\n
LESSEE: GO2NET INC., a Delaware corporation<\/p>\n
By:
\n ————————————-
\n Print Name: Ethan A. Caldwell
\n Title: General Counsel and Corporate
\n Secretary
\n Address (Until the Occupancy Date as to
\n the Initial Phase I Premises):<\/p>\n
Go2Net, Inc.
\n 999 Third Avenue, Suite 4700
\n Seattle, WA 98104<\/p>\n
STATE OF WASHINGTON
\n ss.
\nCOUNTY OF KING<\/p>\n
I certify that I know or have satisfactory evidence that FREDERICK W. GRIMM
\nis the person who appeared before me, and said person acknowledged that said
\nperson signed this instrument, on oath stated that said person was authorized to
\nexecute the instrument and acknowledged it as the MANAGING MEMBER of TRIAD PIER
\n70 LLC, a limited liability company, to be the free and voluntary act of such
\nlimited liability company for the uses and purposes mentioned in the instrument.<\/p>\n
Dated this _____ day of ___________, 1999.<\/p>\n
—————————————–
\n (Signature of Notary)<\/p>\n
—————————————–
\n (Legibly Print or Stamp Name of Notary)
\n Notary public in and for the state of
\n Washington, residing at
\n —————–
\n My appointment expires
\n ——————<\/p>\n
STATE OF
\n ————-
\n ss.
\nCOUNTY OF
\n ————<\/p>\n
I certify that I know or have satisfactory evidence that ETHAN A. CALDWELL
\nis the person who appeared before me, and said person acknowledged that said
\nperson signed this instrument, on oath stated that said person was authorized to
\nexecute the instrument and acknowledged it as the General Counsel and Corporate
\nSecretary of GO2NET INC., a Delaware corporation, to be the free and voluntary
\nact of such corporation for the uses and purposes mentioned in the instrument.<\/p>\n
Dated this _____ day of ___________, 1999.<\/p>\n
—————————————–
\n (Signature of Notary)<\/p>\n
—————————————–
\n (Legibly Print or Stamp Name of Notary)
\n Notary public in and for the state of
\n _____________ , residing at ______________<\/p>\n
EXHIBIT A<\/p>\n
[Schematic of Premises]<\/p>\n
-A-1-<\/p>\n
EXHIBIT B<\/p>\n
Legal Description of Land<\/p>\n
FEE INTEREST – Lots 1, 2, 3 and 4, Block 169, Supplemental Plat of Seattle
\nTidelands in King County, Washington<\/p>\n
LEASEHOLD INTEREST – All of the harbor area lying in front of Lots 1, 2, 3 and
\n4, Block 169, Supplemental Plat of Seattle Tidelands in King County, Washington,
\nbounded by the inner and outer harbor lines and the northerly line of said Lot 1
\nand the south line of said Lot 4, both extended to said outer harbor line, as
\nshown on the official maps of Seattle Tidelands on file in the office of the
\nCommissioner of Public Lands at Olympia, Washington.<\/p>\n
All situated in the County of King, State of Washington.<\/p>\n
-B-1-<\/p>\n
EXHIBIT C<\/p>\n
Rules and Regulations<\/p>\n
1. No sign, placard, picture, advertisement, name or notice shall be
\ninscribed, displayed, printed or affixed on or to any part of the outside or
\ninside of the Building or the Premises without the written consent of Lessor
\nfirst had and obtained and Lessor shall have the right to remove any such sign,
\nplacard, picture, advertisement, name or notice without notice to and at the
\nexpense of the Lessee.<\/p>\n
a. All approved signs or lettering on doors shall be printed, affixed,
\nor inscribed by a person approved by Lessor and shall conform to the standard
\nBuilding Graphics.<\/p>\n
b. Lessee shall not place anything or allow anything to be placed on or
\nnear the glass of any window, door, partition or wall which in Lessor’s opinion
\nmay appear unsightly from the outside of the Premises.<\/p>\n
2. The directory of the Building will be provided exclusively for the display
\nof the name and location of Lessee only and Lessor reserves the right to exclude
\nany other names thereon.<\/p>\n
3. The sidewalks, halls, passages, exits, entrances, elevators and stairways,
\nbalconies and roof are not for the use of the general public and Lessor shall in
\nall cases retain the right to control and prevent access thereto by all persons
\nwhose presence, in the judgment of the Lessor, shall be prejudicial to the
\nsafety, character, reputation and interest of the Building and its Lessees,
\nprovided that nothing herein contained shall be construed to prevent such access
\nto persons with whom Lessee normally deals in the ordinary course of Lessee’s
\nbusiness, unless such persons are engaged in illegal activities. Lessee,
\nLessee’s employees or invitees shall not go upon the roof of the Building.<\/p>\n
4. Lessee shall not alter any lock or install any new or additional locks or
\nany bolts on any door of the Premises without the written consent of Lessor.<\/p>\n
5. The toilet rooms, urinals, washbowls and other apparatus shall not be used
\nfor any purpose other than that for which they were constructed and no foreign
\nsubstance of any kind whatsoever shall be thrown therein and the expense of any
\nbreakage, stoppage or damage resulting from the violation of this rule shall be
\nborne by the Lessee, who, or whose employees or invitees, shall have caused it.<\/p>\n
6. Lessee shall not overload the floor of the Premises or mark, drive nails,
\nscrew, or drill into partitions, woodwork or plaster, or in any way deface the
\nPremises or any part thereof. No boring, cutting or stringing of wires or laying
\nof linoleum or other similar floor covering shall be permitted except with the
\nprior written consent of Lessor and as Lessor may direct.<\/p>\n
-C-1-<\/p>\n
7. No furniture, freight, or equipment of any kind shall be brought into the
\nBuilding without the consent of Lessor and all moving of the same into or out of
\nthe Building shall be done at such time and in such a manner as Lessor shall
\ndesignate. Lessor shall have the right to prescribe the weight, size and
\nposition of all safes and other heavy equipment brought into Building, and also
\nthe times and manner of moving same in and out of the Building. Safes or other
\nheavy objects shall, if considered necessary by Lessor, stand on wood strips of
\nsuch thickness as is necessary to properly distribute the weight. Lessor will
\nnot be responsible for loss of or damage to any such safe or property from any
\ncause and all damage done to the Building by moving or maintaining any such safe
\nor other property shall be repaired at the expense of Lessee. There shall not be
\nused in any space, or in the public halls of the Building, either by Lessee or
\nothers, any hand truck, except those equipped with rubber tires and rubber side
\nguards.<\/p>\n
8. Lessee shall not cause any unnecessary labor by reason of Lessee’s
\ncarelessness or indifference in the preservation of good order and cleanliness.<\/p>\n
9. Lessee shall not use, keep or permit to be used or kept, any noxious gas
\nor substance in the Premises, or permit or suffer the Premises to be occupied
\nor used in a manner offensive or objectionable to Lessor or other occupants of
\nthe Building by reason of noise, odors, and\/or vibrations or interfere in any
\nway with other Lessees, or those having business therein, nor shall any animals
\nor birds be brought in or kept in or about the Premises or the Building. Lessee
\nshall not make or permit to be made, any unseemly or disturbing noise or disturb
\nor interfere with occupants of this or neighboring Buildings or Premises, or
\nthose having business with them, whether by the use of any musical instrument,
\nradio, phonograph, unusual noise, or in any other way. Lessee shall not throw
\nanything out of doors, windows, or down the passageways.<\/p>\n
10. The Premises shall not be used for manufacturing or for the storage of
\nmerchandise except as such storage may be incidental to the permitted uses of
\nthe Premises. The Premises shall not be used for lodging or sleeping or for any
\nillegal purposes.<\/p>\n
11. Lessee shall not use or keep in the Premises or the Building, any kerosene,
\ngasoline or inflammable or combustible fluid or materials, or use any method of
\nheating or air conditioning other than supplied by Lessor.<\/p>\n
12. Lessor will direct electricians as to where and how telephone and computer
\nwires are to be introduced. No boring or cutting for wires will be allowed
\nwithout the consent of Lessor. The location of telephones, call boxes and other
\noffice equipment affixed to the Premises shall be subject to the approval of the
\nLessor.<\/p>\n
13. All keys to offices, rooms and toilet rooms shall be obtained from
\nLessor’s Building Management Office and Lessee shall not, from any other source
\nduplicate, obtain keys or have keys made. Lessee, upon termination of tenancy,
\nshall deliver to Lessor the keys of the office, rooms and toilet rooms, which
\nshall have been furnished, or shall pay Lessor the cost of replacing same or of
\nchanging the lock or locks opened by such lost key if Lessor deems it necessary
\nto make such change.<\/p>\n
-C-2-<\/p>\n
14. Lessee shall not lay linoleum, tile, carpet or other similar floor
\ncovering so that the same shall be affixed to the floor of the Premises in any
\nmanner, except as approved by Lessor. The expense of repairing any damage
\nresulting from a violation of this rule or removal of any floor covering shall
\nbe borne by the Lessee by whom, or whose contractors, employees, or invitees,
\nthe damage shall have been caused.<\/p>\n
15. No furniture, packages, supplies, equipment or merchandise will be
\nreceived in the Building or carried up or down in the elevators except between
\nsuch hours and through such doors in and in such elevators as shall be
\ndesignated by Lessor.<\/p>\n
16. Access to the Building, or the halls, corridors, elevators, or stairways
\nin the building, or to the Premises, may be refused unless the person seeking
\naccess is known to the person or employee of the Building in charge and has a
\npass or is properly identified. Lessor shall in no case be liable for damages
\nfor any error with regard to the admission to or exclusion from the Building of
\nany person. In case of invasion, mob, riot, public excitement, or other
\ncommotion, Lessor reserves the right to prevent access to the Building during
\nthe continuance of same by closing the doors for the safety of the Lessees and
\nprotection of property in the Premises and the Building. Lessor reserves the
\nright to close and keep locked all entrance and exit doors of the building on
\nlegal holidays, and on other days between the hours of 10 p.m. and 8 a.m., and
\nduring such further hours as Lessor may deem advisable for the adequate
\nprotection of said Building and the property of its Lessees.<\/p>\n
17. Lessee shall see that the doors of the Premises are closed and securely
\nlocked before leaving the Building and must observe strict care and caution that
\nall water faucets or water apparatus are entirely shut off before Lessee or
\nLessee’s employees leave the Building, and that all electricity shall be
\nlikewise carefully shut off, so as to prevent waste or damage, and for any
\ndefault or carelessness Lessee shall make good all injuries sustained by Lessee,
\nother Lessees, or occupants of the Building.<\/p>\n
18. Lessor reserves the right to exclude or expel from the Building any
\nperson, who, in the judgment of Lessor, is intoxicated or under the influence
\nof liquor or drugs, or who shall in any manner act in violation of any of the
\nrules and regulations of the Building.<\/p>\n
19. The requirements of Lessee will be attended to only upon application at
\nthe Building Office. Employees of Lessor shall not perform any work or do
\nanything outside of their regular duties unless under special instruction from
\nLessor, and no employee will admit any persona (Lessee or otherwise) to any
\noffice without specific instructions from Lessor.<\/p>\n
20. Lessor shall have the right, exercisable without notice, and without
\nliability to Lessee, to change the name and the street address of the Building
\nof which the Premises are a part.<\/p>\n
21. Lessee agrees that it shall comply with all fire and security regulations
\nthat may be issued from time to time by Lessor or governing agencies and Lessee
\nalso shall provide Lessor with the name of a designated responsible employee to
\nrepresent Lessee in all matters pertaining to such fire or security regulations.<\/p>\n
-C-3-<\/p>\n
22. Lessor reserves the right, by written notice to Lessee, to rescind, alter
\nor waive any rule or regulation at any time prescribed for the Building when,
\nin Lessor’s judgment, it is necessary, desirable or proper for the best
\ninterest of the Building and its Lessees.<\/p>\n
23. Lessee shall not disturb, solicit or canvass any occupant of the Building
\nand shall cooperate to prevent same.<\/p>\n
24. Without the written consent of Lessor, Lessee shall not use the name of
\nthe building in connection with or in promoting or advertising the business of
\nLessee, except as Lessee’s address.<\/p>\n
25. In the event of any Lessee oriented security systems, information on such
\nsystem shall be provided to building management.<\/p>\n
26. All loose trash and wet garbage transported to the dumpster via Common
\nAreas must be contained in sealed, leak proof plastic bags.<\/p>\n
-C-4-<\/p>\n
EXHIBIT D<\/p>\n
Additional Provisions<\/p>\n
1. OPTION TO EXTEND: Lessor hereby grants to Lessee two (2) options to extend
\nthe Term of this Lease for five (5) years each for all but not part of the
\nPremises subject to the following conditions (provided, that in no event shall
\nLessee have any option to extend this Lease or occupy any portion of the
\nPremises beyond the current term of the DNR Ground Lease).<\/p>\n
(a) Lessee shall provide Lessor written notice of Lessee’s election to
\nexercise an option not later than two hundred ten (210) days and not sooner than
\ntwo hundred and forty (240) days prior to the then-effective expiration date of
\nthis Lease. Lessee shall not have the right to exercise the second extension
\noption unless it has duly exercised the first extension option and is occupying
\nthe Premises at the end of the first extended term.<\/p>\n
(b) These options are personal to Lessee and may not be exercised or
\nassigned, voluntarily or involuntarily, by or to any person or entity other than
\nLessee, except to permitted assignees under Section 19.3 of the Lease or to
\nother assignees, transfers to whom Lessor has granted its consent pursuant to
\nSection 19. Notwithstanding any provision in the grant of this option to the
\ncontrary, Lessee shall have no right to exercise any option at any time (i)
\nafter which a non-curable default has occurred or after Lessee has received
\nnotice of a curable default which has not been cured, or (ii) in the event that
\nthere have been three or more material, curable defaults under the Lease,
\nwhether or not cured.<\/p>\n
(c) All terms and conditions of this Lease shall apply to each extended
\nterm, except for Base Rent, which shall be Basic Rent during the applicable
\nextended term shall be Fair Market Rental Value.<\/p>\n
(1) The term “Fair Market Rental Value” shall be the rental rate
\nthat comparable Premises for the same term of the applicable extended term
\nwould command on the open market at the time of commencement thereof, as
\ndetermined jointly by Lessor and Lessee. For purposes hereof, the term
\n“comparable Premises” shall mean premises similar in size and location to the
\nPremises with similar improvements and amenities, including any improvements
\ninstalled upon Lessee’s initial occupancy of Premises.<\/p>\n
(2) If Lessor and Lessee cannot agree upon the Fair Market Rental
\nValue of the Premises within thirty (30) days after Lessor’s receipt of the
\nrenewal notice, then Lessor and Lessee shall agree within ten (10) days
\nthereafter on one real estate appraiser (who shall be a Member of the American
\nInstitute of Real Estate Appraisers or equivalent) who will determine the Fair
\nMarket Rental Value of the Premises. If Lessor and Lessee cannot mutually agree
\nupon an appraiser within said ten (10) day period, then one M.A.I. qualified
\nappraiser shall be appointed by Lessee and one M.A.I. qualified appraiser shall
\nbe appointed by Lessor within ten (10) days of notice by one party to the other
\nof such disagreement. The two appraisers shall determine the Fair Market Rental
\nValue of the Premises within twenty (20) days of their appointment; provided,
\nhowever, if either party fails to appoint an appraiser within such ten (10) day
\nperiod, then the determination of the appraiser first appointed shall be final,
\nconclusive and binding upon both parties. The appraisers appointed<\/p>\n
-D-1-<\/p>\n
shall proceed to determine Fair Market Rental Value within twenty (20) days
\nfollowing such appointment. The conclusion shall be final, conclusive and
\nbinding upon both Lessor and Lessee. If said appraisers should fail to agree,
\nbut the difference in their conclusions as to Fair Market Rental Value is ten
\npercent (10%) or less of the lower of the two appraisals, the Fair Market
\nRental Value shall be deemed the average of the two.<\/p>\n
(3) If the two appraisers should fail to agree on the Fair Market
\nRental Value, and the difference between the two appraisals exceeds ten percent
\n(10%), then the two appraisers thus appointed shall appoint a third M.A.I.
\nqualified appraiser, and in case of their failure to agree on a third appraiser
\nwithin ten (10) days after their individual determination of the Fair Market
\nRental Value, either party may apply to the Presiding Judge of the Superior
\nCourt for the county in which the Premises are situated, requesting said Judge
\nto appoint the third M.A.I. qualified appraiser. The third appraiser so
\nappointed shall promptly determine the Fair Market Rental Value of the Premises
\nand the average of the appraisals of the two closest appraisers shall be final,
\nconclusive and binding upon both parties. The fees and expenses of said third
\nappraiser or the one appraiser Lessor and Lessee agree upon, shall be borne
\nequally by Lessor and Lessee. Lessor and Lessee shall pay the fees and expenses
\nof their respective appraiser if the parties fail to agree on a single
\nappraiser. All M.A.I. appraisers appointed or selected pursuant to this
\nsubsection shall have at least ten (10) years’ experience appraising commercial
\nproperties in the Seattle, Washington area.<\/p>\n
2. PARKING. Subject to changes to the Building that may occur due to the
\npossible addition to the Premises of the Second Floor Expansion Premises
\ndescribed in Section 3 below of this Exhibit D, the Building contains or will
\ncontain approximately 76 parking stalls on Level 1 and approximately 57 parking
\nstalls on Level 2. Lessee’s parking rights shall be as follows:<\/p>\n
(a) LEVEL 1:<\/p>\n
(1) From 6 a.m. – 6 p.m., available parking stalls on Level 1 may be
\nused on a nonexclusive basis by Lessee and its customers, employees, and
\ninvitees (“Lessee Permittees”), who shall self-park at the Hourly Market Rate
\nbased on availability.<\/p>\n
(2) From 6 p.m. – 6 a.m., all parking on Level 1 shall only be
\navailable through the valet, at the prevailing market rate.<\/p>\n
(b) LEVEL 2:<\/p>\n
(1) From 6 a.m. – 7 p.m. on weekdays, all parking stalls on Level 2
\nmay be used by the Lessee Permittees as follows: 20 reserved stalls shall be
\nmarked for Lessee’s exclusive use during this time period, for each of which
\nLessee shall pay the 24-hour Reserved Monthly Market Rate; and 37 unreserved
\nstalls may be used exclusively by Lessee and by its 37 Lessee Permittees. Lessee
\nshall pay the 12-hour Unreserved Monthly Market Rate for these 37 unreserved
\nstalls.<\/p>\n
(2) From 6 p.m. – 6 a.m. on weekdays, and all day on weekends, users
\nof the 20 reserved stalls may continue to use the reserve stalls as set forth in
\nparagraph 2(b)(1) above. Access to the 37 unreserved stalls shall be restricted
\nto valet only. Notwithstanding the above,<\/p>\n
-D-2-<\/p>\n
the 37 Lessee Permittees need not vacate the stalls in which they parked prior
\nto 6 p.m., and Lessor reserves the right to charge Lessee, at the Market Hourly
\nRate, for all vehicles parked in the 37 unreserved stalls after 7 p.m. on
\nweekdays and at any time on weekends.<\/p>\n
All parking is subject to appropriate governmental rules and regulations and
\nlimiting conditions of other tenant leases of the Building. In all cases, Market
\nRates shall be determined by Lessor in its sole discretion. Lessee understands
\nand agrees that, except as specifically set forth above, Lessee’s rights to the
\nreferenced parking stall(s) are on an “unreserved, non-exclusive” basis. Lessee
\nfurther understands there is no free parking for Lessee’s Permittees. Unless
\notherwise instructed by written notice from Lessor, Lessee shall coordinate all
\nparking arrangements with Lessor’s parking operator, currently Diamond Parking
\n(“Operator”). Lessee may arrange for customer validation with Operator at
\nLessee’s expense. Lessee’s parking of vehicles shall be as directed by Lessor or
\nOperator. Lessor reserves the absolute right to reduce or rearrange a portion of
\nthe parking stalls at the Building caused by or resulting from any future use,
\ndevelopment, remodeling or renovation of the Building, in which case Lessee’s
\nrights to parking may thereupon be diminished or canceled by Lessor; provided,
\nhowever, that Lessee’s 57 parking stalls noted above shall not be reduced,
\ndiminished or cancelled.<\/p>\n
3. ANTENNA LICENSE. Lessee’s rights to install antenna\/ae on the roof of the
\nBuilding are conditioned on mutual execution of an Antenna License Agreement in
\nthe form attached as Exhibit G hereto on or before the Commencement Date.<\/p>\n
4. SECOND FLOOR EXPANSION PREMISES. Subject to the terms and conditions
\nherein, that portion of the second floor parking area comprising approximately
\n21,000 RSF and depicted on Exhibit A attached hereto (the “Second Floor
\nExpansion Premises”) shall be added to the Premises.<\/p>\n
(a) Upon mutual execution hereof, Lessor shall investigate the feasibility
\nof converting the Second Floor Expansion Premises from parking to office use,
\nincluding without limitation analyzing economic, permitting, structural,
\nfinancing, and construction matters, in Lessor’s sole discretion.<\/p>\n
(b) If Lessor has not, within forty-five (45) days after mutual execution
\nhereof (the “Decision Date”), satisfied or waived this feasibility contingency,
\nthe Second Floor Expansion Premises shall NOT be added to the Premises.<\/p>\n
(c) If Lessor satisfies or waives the foregoing feasibility contingency by
\nthe Decision Date, it shall provide written notice thereof to Lessee, in which
\nevent:<\/p>\n
(1) The Second Floor Expansion Premises shall be deemed added to the
\nPremises as of the date of such notice and be considered part of the Premises
\nfor all purposes and subject to all the terms and conditions of the Lease, as
\nmodified herein, and Lessee’s percentage share of the Building shall be
\nappropriately increased;<\/p>\n
(2) By the date that is three hundred sixty (360) days from the date
\nof mutual execution hereof, and subject to Lessor’s receipt of all necessary
\ngovernmental permits and<\/p>\n
-D-3-<\/p>\n
approvals and any consent required from DNR, Lessor shall have substantially
\ncompleted the renovation of the Second Floor Expansion Premises at its sole
\nexpense to substantially the same quality and pursuant to substantially the same
\nspecifications as the Lessor’s Work for the existing Premises;<\/p>\n
(3) Lessee shall then commence and diligently pursue to completion
\nits build-out of the Second Floor Expansion Premises at its sole expense to
\nsubstantially the same quality and pursuant to substantially the same
\nspecifications as Lessee’s Work for the existing Premises;<\/p>\n
(4) As of the date that is ninety (90) days after the date Lessor’s
\nWork as to the Second Floor Expansion Premises is substantially completed,
\nLessee shall commence paying (x) Lessee’s Proportionate Share of Expenses as to
\nthe Second Floor Expansion Premises, and (y) Base Rent as to the Second Floor
\nExpansion Premises at the same per-RSF rates applicable to the remainder of the
\nPremises, subject to adjustment at the same times and at the same rates as set
\nforth therein for the remainder of the Premises.<\/p>\n
(d) Lessee shall pay any of Lessor’s legal, consulting, engineering and
\npermitting costs which are directly attributable to the Second Floor Expansion
\nPremises (which such costs shall be subject to the prior approval of Lessee).<\/p>\n
-D-4-<\/p>\n
EXHIBIT E<\/p>\n
Workletter Agreement<\/p>\n
All terms herein that are defined in the body of the Lease to which this
\nExhibit is attached shall have the meanings provided for them in the body of the
\nLease. The term “Lessee’s Work” shall mean any work performed by Lessee, whether
\nLessee’s Initial Work or work subsequent thereto.<\/p>\n
SECTION I OCCUPANCY DATE; DELIVERY OF PREMISES BY LESSOR<\/p>\n
1. Except as may be otherwise specifically set forth in this Lease, Lessee
\nshall take the Premises in an “AS IS” condition and all work to be performed at
\nthe Premises shall be performed by Lessee at Lessee’s expense.<\/p>\n
2. Lessor does not warrant any information Lessor may have furnished or will
\nfurnish Lessee regarding the Premises. It shall be Lessee’s responsibility to
\nverify existing field conditions and measurements of the Premises. Lessee’s
\nfailure to verity the existing conditions and measurements of the Premises shall
\nnot relive Lessee of any expenses or responsibilities resulting from such
\nfailure, nor shall Lessor have any liability or obligations to Lessee arising
\nfrom such failure.<\/p>\n
3. Lessor will provide a “vanilla shell” at Lessor’s expense (such work to be
\ncompleted not later than the time by which Lessee’s Work is to be completed), as
\nprovided below:<\/p>\n
(a) Finished common areas including proposed lobbies, stairways and
\nparking areas;<\/p>\n
(b) Restrooms in the Premises and finished elevators serving the Premises;<\/p>\n
(c) HVAC stubbed to the Premises (Lessee to provide distribution);<\/p>\n
(d) Exterior walls insulated and exterior windows installed walls ready
\nfor Lessee’s electrical work and Lessee’s installation of sheetrock;<\/p>\n
(e) Finished window systems including frames and sills;<\/p>\n
(f) Base building electrical capacity in an amount not to exceed 15 watts
\nper square foot for Lessee to operate standard office computer equipment, and
\nlighting; a maximum cooling of 15 watts per square foot for heat generated by
\nmiscellaneous equipment, lighting and people;<\/p>\n
(g) Emergency lighting shall be installed and operational throughout all
\nbuilding common areas as required by code;<\/p>\n
(h) Life safety: sprinkler heads installed and operational throughout the
\ncore and common areas of the building; sprinklers installed in the Premises
\nadequate for shell condition;<\/p>\n
-E-1-<\/p>\n
(i) Floor ready for Lessee’s floor covering;<\/p>\n
(j) Parking Lot paved and lined, card readers and gate(s) installed;<\/p>\n
(k) Utility costs during Lessee’s Work; and<\/p>\n
(l) A telecommunications conduit in a central location for Lessee’s use.<\/p>\n
(m) Shell and core Building systems (e.g., electrical, HVAC, and
\nsprinklers, etc.) shall be commissioned by Lessor at its sole expense pursuant
\nto City of Seattle Energy Code Section 1416 (Completion Requirements); provided
\nthat Lessee shall recommission all such Building Systems at its sole expense
\nupon completion of Lessee’s Work, using Lessor’s commissioning agent(s).<\/p>\n
4. Lessor may complete Lessor’s Work simultaneously with Lessee performing
\nLessee’s Work.<\/p>\n
5. Lessor at Lessor’s cost shall apply for, seek and obtain all permits,
\nlicenses and approvals required for applicable governmental entities for
\nconstruction of Lessor’s Work. Lessor may terminate this Lease if it has not
\nreceived all governmental and non-governmental permits and approvals required to
\nperform Lessor’s Work and related improvements to the Building, Common Areas,
\nand related areas (including without limitation all shoreline permits and
\napprovals; master use permits and approvals, and building permits).<\/p>\n
6. Lessor shall use good faith, reasonable efforts to deliver the Premises to
\nLessee with Lessor’s Work substantially completed on or before the Anticipated
\nOccupancy Date set forth in the Basic Lease Terms, subject to force majeure, any
\ndelays caused by Lessee, and any other cause beyond the reasonable control of
\nLessor. As used herein, “substantially complete” shall mean completion of
\nLessor’s Work EXCEPT for (i) minor “punch list” items that can be completed
\nprior to final completion of Lessee’s Work without material interference with
\nLessee’s Work, and (ii) work that Lessor cannot complete until Lessee performs
\nnecessary portions of the Lessee’s Work.<\/p>\n
7. Lessor shall cause its general contractor to maintain, during the
\nperformance of Lessor’s Work and Lessor’s proposed renovation to the Building,
\ninsurance with the coverages and limits described in the certificate(s)
\nattached at the end of this Exhibit E and by this reference incorporated
\nherewith.<\/p>\n
SECTION II LESSEE’S WORK<\/p>\n
PART ONE. General Criteria for Lessee’s Work.<\/p>\n
1. Subject to the provision of the Lease, including this Exhibit, Lessee shall
\nconstruct all improvements to the Premises as provided in this Exhibit.<\/p>\n
-E-2-<\/p>\n
2. Lessee shall perform Lessee’s Work in accordance with all Laws including,
\nwithout limitation, the building codes of the jurisdiction in which the Land
\nis located and all requirements of the ADA.<\/p>\n
3. Lessee shall prepare its plans and specifications for its Work in
\naccordance with this Exhibit.<\/p>\n
4. Lessee’s Work and, except to the extent as may be specifically otherwise
\nprovided in the Lease, all subsequent work in the Premises which Lessee may
\nwish to perform, shall be subject to the advance written approval by Lessor,
\nwhich shall be deemed given if Lessor does not, within five (5) business days
\nafter receipt of plans and specifications from Lessee, disapprove same.<\/p>\n
5. Lessee shall, prior to commencement of Work, obtain all required building
\nand other permits at Lessee’s expense and post said permits at the Premises as
\nrequired.<\/p>\n
6. The loads imposed by Work at the Premises (including dead and live loads)
\nshall not exceed the allowable load capacity of the existing structural systems
\nand components thereof.<\/p>\n
7. Lessee shall use only new or like-new materials for the Work, including
\nimprovements, equipment, trade fixtures and all other fixtures. Notwithstanding
\nthe foregoing, Lessee my reuse portions of existing improvements subject to
\nLessor’s prior written approval, provided that said approval shall in no manner
\nrelieve Lessee from the requirement that all Work comply with this Lease and
\nall Laws. Reuse of existing improvements shall be clearly indicated on Lessee’s
\nDrawings (as defined below). Lessor makes no warranty or representation as to
\nthe condition or suitability of existing improvements reused by Lessee.<\/p>\n
8. Lessee shall make no marks or penetrations into the roof, upper floor
\ndecks, exterior walls, or floors, unless approved by Lessor in advance.<\/p>\n
9. If any Lessee’s Work being performed by Lessee to connect to Lessor’s
\nutilities requires access through the Premises of any other tenant or otherwise
\nwill affect any other tenant and Lessor has approved such Work, Lessee shall be
\nresponsible for coordinating such Work with such other tenant, restoring said
\ntenant’s premises to its original condition following the Work, and
\ncompensating said other tenant for any costs incurred by it on account of such
\nWork.<\/p>\n
10. Lessee shall retain Lessor’s identification signs or, at Lessee’s cost,
\nprovide new signs for Lessor’s utilities, valves, and other such devices in the
\nPremises.<\/p>\n
11. Lessor may at its election require testing as to Lessee’s work affecting
\nthe Building’s structural components and major Building systems (i.e., fire\/life
\nsafety issues, code compliance, and plumbing and electrical systems), and Lessee
\nshall cooperate with any reasonable testing procedure, including without
\nlimitation IR scanning.<\/p>\n
12. No approval from Lessor with respect to any aspect of Lessee’s Work shall
\nbe valid unless in writing.<\/p>\n
-E-3-<\/p>\n
13. Lessee acknowledges that the Lease Commencement Date and the Base
\nCommencement Date shall not be delayed due solely to the fact that Lessee’s
\nWork has not been completed by such dates or due solely to the fact that Lessee
\nis not open for business as of such dates.<\/p>\n
PART TWO. Special Matters for Lessee’s Work<\/p>\n
1. Grease Traps (if any). Lessee’s Work shall include a point-of-use grease
\ninterceptor within the Premises in accordance with applicable laws and subject
\nto Lessor’s approval. Lessee shall maintain and clean the interceptor and
\nadjacent areas and arrange for disposal from the Building.<\/p>\n
2. Venting. Lessee shall provide a separate exhaust system for the Premises so
\nthat no odors or other contaminants emanate beyond the Premises, all subject to
\nLessor’s approval. Such exhaust system shall not interfere with any other HVAC
\nsystem on the Building’s roof.<\/p>\n
SECTION III. PROCEDURES AND SCHEDULES FOR THE COMPLETION OF PLANS AND
\n SPECIFICATIONS<\/p>\n
1. All prints, drawing information and other materials to be furnished by
\nLessee as required hereinafter, shall be delivered to Lessor. Lessee’s
\npreliminary drawings and specifications are herein referred to as the
\n“Preliminary Drawings” and Lessee’s final drawings and specifications are herein
\nreferred to as the “Working Drawings”. The Preliminary Drawings and Working
\nDrawings are sometimes referred to herein as the “Drawings.” Lessor agrees to
\ntreat the Drawings as confidential and shall not, without Lessee’s prior written
\nconsent or as may be required by applicable laws or court order, disclose same
\nto anyone other than those employees, agents and contractors of Lessor as
\nnecessary in order to perform Lessor’s obligations under the Lease.<\/p>\n
2. Lessee shall, at its sole expense, utilize the services of an architect and
\nengineer selected by it to prepare all Drawings. Said architect and engineer
\nshall be registered in the State of Washington. All Drawings shall be submitted
\nto Lessor for approval in the form of three (3) sets of blueline prints.<\/p>\n
Lessee shall, with the Drawings, furnish sample boards indicating materials,
\ncolor selections and finishes to be used. Lessee shall also submit to Lessor
\nsuch further information on Lessee’s planned electrical and mechanical usages at
\nthe Premises as requested by Lessor (herein referred to as “Mechanical\/
\nElectrical Design Submittal Forms”). Lessee shall accurately indicate on the
\nPlans any existing equipment or conditions that Lessee proposes to reuse.<\/p>\n
3. Lessee shall submit the Preliminary Drawings to Lessor on or before the
\ndate that is forty-five (45) days after mutual execution of this Lease. The
\nPreliminary Drawings shall include interior floor plans, interior elevations,
\nreflected ceiling plan(s) and storefront elevations, mechanical plans,
\nelectrical plans, plumbing plans, and signage design, size and location. With
\nthe Preliminary Drawings Lessee shall submit a color rendering of Lessee’s
\nproposed storefront and signage, and a sample board of the materials to be used
\nin the storefront and interior of the<\/p>\n
-E-4-<\/p>\n
Premises. Lessor shall use reasonable efforts to send notification to Lessee
\nthat it approves or disapproves the Preliminary Drawings within five (5)
\nbusiness days after receipt thereof (Lessor’s approval not to be unreasonably
\nwithheld). If Lessor disapproves, Lessee shall within ten (10) days after
\nreceipt of Lessor’s disapproval, send Lessor revised Preliminary Drawings
\naddressing Lessor’s comments. This procedure shall be repeated until Lessor
\nhas approved the Preliminary Drawings. Lessor may give approval “as noted” in
\nwhich event the changes noted by Lessor shall be deemed incorporated into the
\nPreliminary Drawings; provided, if Lessee notifies Lessor within five (5)
\ndays thereafter that it does not accept said changes, then the Preliminary
\nDrawings shall be deemed disapproved on account of the changes Lessor had
\nrequested.<\/p>\n
4. After Lessor approves the Preliminary Drawings, Lessee shall submit the
\nWorking Drawings for Lessor approval. The Working Drawings shall include
\ndetailed final drawings for architectural, electrical, mechanical, sprinkler and
\nplumbing and all other work to be performed by Lessee and shall be prepared
\nconsistent with the approved Preliminary Drawings. Lessor shall use reasonable
\nefforts to send notification to Lessee that it approves or disapproves of the
\nWorking Drawings within five (5) business days after receipt thereof (Lessor’s
\napproval not to be unreasonably withheld). If Lessor disapproves, Lessor shall
\nspecify the reasons for the disapproval. If Lessor disapproves, Lessee shall
\nwithin ten (10) days after receipt of Lessor’s disapproval, send Lessor revised
\nWorking Drawings addressing Lessor’s comments. This procedure shall be repeated
\nuntil Lessor has approved the Working Drawings. Lessor may give approval “as
\nnoted” in which the changes noted by Lessor shall be deemed incorporated into
\nthe Working Drawings; provided, if Lessee notifies Lessor within five (5) days
\nthereafter that it does not accept said changes, the Working Drawing shall be
\ndeemed disapproved on account of the absence of the changes Lessor had
\nrequested.<\/p>\n
5. The approval by Lessor or Lessor’s agent of any Drawings or of Lessee’s
\nWork shall not constitute an implication, representation or certification by
\nLessor or Lessor’s agent that either said Drawings or Lessee’s Work is accurate,
\nsufficient, efficient or in compliance with insurance and indemnity
\nrequirements, or any Laws, including but not limited to code and the Americans
\nwith Disabilities Act, the responsibility for which belongs solely to Lessee.<\/p>\n
6. In those instances where multiple standards and requirements apply with
\nrespect to Lessee’s Work, the strictest of such standards and\/or requirements
\nshall control unless prohibited by applicable Law.<\/p>\n
SECTION IV. PERMITS AND APPROVALS<\/p>\n
Lessee at Lessee’s cost shall apply for, seek and obtain all permits,
\nlicenses and approvals required for applicable governmental entities for
\nconstruction of Lessee’s Work. Copies of all such permits and approvals shall be
\nsubmitted to Lessor before any construction work for Lessee’s Work commences.<\/p>\n
SECTION V. CONSTRUCTION<\/p>\n
-E-5-<\/p>\n
1. Lessee may not commence any Work until this Lease has been fully executed,
\nLessor has approved Lessee’s Working Drawings, all required insurance Evidences
\nhave been furnished Lessor, all building permits have been obtained, and Lessee
\nhas complied with all other requirements herein and elsewhere in this Lease.<\/p>\n
2. A representative of Lessee shall meet with Lessor prior to start of
\nconstruction to discuss construction-related items. Lessee’s representative
\nshall contact the Lessor’s representative in advance to schedule said meeting at
\na mutually satisfactory time.<\/p>\n
3. Without limitation to any provision of this Lease, prior to commencement of
\nany Work at the Premises Lessee shall furnish Lessor the following:<\/p>\n
a. The names, addresses, representatives and telephone numbers of the
\ngeneral contractor and all subcontractors (“Lessee’s Contractors”).<\/p>\n
b. Amount of the general contract.<\/p>\n
c. Evidence of Insurance evidencing the insurance required of Lessee and
\nLessee’s general contractors as provided in this Lease, including this Exhibit.<\/p>\n
d. A copy of the building permit(s).<\/p>\n
e. A detailed construction schedule.<\/p>\n
f. Proof that Lessee’s general contractor is licensed to work in the
\nState of Washington.<\/p>\n
g. A specific job-site safety program, as required by the State of
\nWashington.<\/p>\n
4. All Lessee’s contractors shall be bonded, licensed contractors, having good
\nlabor relations, capable of working in harmony with other contractors in
\nBuilding, and shall be subject to Lessor’s prior approval, not to be
\nunreasonably withheld. Lessee shall coordinate Lessee’s Work with other
\nconstruction work at the Building, if any.<\/p>\n
5. Lessee’s general contractor shall maintain at the Premises during
\nconstruction a complete set of approved Working Drawings bearing Lessor’s
\napproval stamp.<\/p>\n
6. Prior to the commencement of construction, Lessor shall have the right to
\npost, in a conspicuous location, on Lessee’s Premises, as well as recorded with
\nthe City of Seattle, a Notice of Nonresponsibility.<\/p>\n
7. Prior to the commencement of construction, Lessee shall provide to Lessor a
\npayment and performance bond in the amount of Lessee’s Work.<\/p>\n
8. Temporary Facilities.<\/p>\n
-E-6-<\/p>\n
a. If not already available in the Premises, Lessee shall provide
\ntemporary heat, air-conditioning and ventilation for the Premises during
\nconstruction if Lessee desires the same.<\/p>\n
b. Lessee shall make the necessary temporary electrical connections at
\nits sole cost at a source designated by Lessor prior to beginning its Work at
\nthe Premises so that it shall have electricity during its construction period.<\/p>\n
c. If Lessee requires water service during construction and Lessor is
\nable to provide it, Lessor shall do so at a designated location and bill Lessee
\nas Lessor reasonably determines.<\/p>\n
d. Lessee shall place all trash in trash containers at a pick-up area or
\nareas designated by Lessor. Lessee shall be responsible for breaking down boxes.
\nLessee shall furnish its own trash containers at its cost unless Lessor elects
\nto furnish the containers. Lessee shall provide trash removal service at
\nLessee’s own cost from the pick-up areas unless Lessor elects to provide the
\ntrash removal service. Lessee shall not permit trash to accumulate within the
\nPremises or in the Common Areas adjacent to the Premises.<\/p>\n
Lessee shall be solely responsible for removal from the Premises and legal
\ndisposal of any containers considered as hazardous waste by the local sanitation
\nauthority and Lessee shall take all precautions to assure that such containers
\nare not placed in Lessor’s disposal containers.<\/p>\n
Lessor may utilize a recycle bin refuse program and, if made available to
\nLessee, Lessee shall take necessary precautions to sort reuse and to prevent
\ncross contamination of recycle containers.<\/p>\n
e. Lessee shall take all necessary precautions to contain construction
\n“wash-up” liquids (such as grout wash, paint wash, etc.) and prevent entry of
\nsuch liquids into Lessor’s sanitary or storm waste system, and Lessee shall not
\nallow any release of any material directly or indirectly into Elliott Bay. All
\nconstruction wash-up shall be conducted at a location designated by Lessor.<\/p>\n
9. Upon substantial completion of Lessee’s Work, Lessee shall notify Lessor.
\nUpon said notification, Lessor shall inspect the Premises and, if the Premises
\nare constructed in accordance with the approved Drawings, Lessor shall issue a
\nLetter of Acceptance for the Premises. If Lessor reasonably believes the
\nPremises have not been constructed in accordance with the approved Drawings,
\nLessor shall so notify Lessee or Lessee’s Contractor. Lessee shall not open
\nprior to Lessor’s issuance of a Letter of Acceptance. Lessee shall furnish
\nLessor a copy of a certificate of occupancy for the Premises before Lessee opens
\nfor business.<\/p>\n
10. All work performed by Lessee during its construction period, or otherwise
\nduring the Term, shall be performed so as to cause the least possible
\ninterference with other tenants and the operation of the Building, and Lessor
\nshall have the right to impose reasonable requirements with respect to timing
\nand performance of the Work in order to minimize such interference. Work causing
\nnoise, odor or vibration outside the Premises shall be performed only during
\nhours the stores at the Building are not open. Lessee shall take all
\nprecautionary steps to protect is facilities and the facilities of others
\naffected by the Work (including flooring in the vicinity of the<\/p>\n
-E-7-<\/p>\n
Premises) and shall police same properly. Construction equipment and materials
\nare to be located in confined areas and truck traffic is to be routed to and
\nfrom the site as directed by Lessor so as not to burden the construction or
\noperation of the Building. All Work shall be confined to the Premises. Lessee’s
\nContractor shall coordinate with Lessor’s on-site representative for the
\ndelivery and removal of its equipment and materials. Lessor shall have the right
\nto order Lessee and Lessee’s contractor or subcontractor who willfully violates
\nthe above requirements to cease work and to remove its equipment and employees
\nfrom the Building. Lessee and\/or Lessee’s contractor shall take precautions to
\nprotect adjacent tenants and tenants on common air distribution systems from
\nairborne dust, dirt and contaminants, VOC’s (volatile organic compounds such as
\npaint thinner or varnish vapors) including, if necessary, isolating or otherwise
\nprotecting Lessor’s central air distribution and return air systems (including
\nreturn air plenum) from entry of these potential contaminants. Lessee and its
\ncontractors shall not limit customer access to the Spirit of Puget Sound during
\nnormal business hours.<\/p>\n
11. Contractor Insurance. Lessee shall cause its general contractor and all
\nsubcontractors to maintain during the construction period the following
\ninsurance: (i) commercial general liability insurance, with limits of not less
\nthan $2 million per occurrence (the portion of such coverage over $1 million may
\nbe provided under an umbrella or excess liability policy), for personal injury,
\nbodily injury or death or property damage or destruction, arising out of or
\nrelating to the contractor’s work at or in connection with the Premises and
\ncompleted operations for one (1) year following job completion and shall provide
\nfor a waiver of subrogation by the insurance company; (ii) worker’s compensation
\ninsurance with respect to each contractor’s workers at the site or involved in
\nthe Lessee’s Work, in the amount required by statute; (iii) employer’s liability
\ninsurance in the amount of at least $1,000,000.00 per accident and at least
\n$1,000,000.00 for disease, each employee; (iv) comprehensive automobile
\nliability insurance covering all owned, hired or non-owned vehicles, including
\nthe loading and unloading thereof, with limits of not less than $2 million per
\noccurrence (the portion of such coverage over $1 million may be proved under an
\numbrella or excess liability policy); and (v) builder’s risk property insurance
\nupon the entire Lessee’s Work to the full replacement cost value thereof.
\nLessor, Lessor’s managing agent, and other such parties as designated by Lessor,
\nshall be additional insureds under (i), naming owner\/Lessor, tenant, general
\ncontractor, and all subcontractors. All insurance required hereunder shall be
\nprovided by responsible insurers rated at least A and VIII in the then current
\nedition of Best’s Key Rating Insurance Guide and shall be licensed in the State
\nin which the Building is located. Lessee shall provide, or cause its contractors
\nto provide, Evidence of such insurance prior to any Lessee’s Work being
\nperformed at the Premises. Such Evidence shall state that the coverage may not
\nbe changed or cancelled without at least thirty (30) day’s prior written notice
\nto Lessor.<\/p>\n
SECTION VI. COSTS; COMPLETION<\/p>\n
Subject to partial reimbursement up to the amount of the Tenant Improvement
\nAllowance and the Space Planning Allowance described below, costs of all Lessee
\nWork shall be paid promptly by Lessee, and Lessee shall have no authority to
\ncause liens or other encumbrances to attach as to the Premises. Lessee shall
\nreimburse Lessor’s construction coordination fee and shall pay Lessor’s space
\nplanners, architects and contractors to the extent they incur expenses in<\/p>\n
-E-8-<\/p>\n
connection with the Lessee Work. Lessee shall be entitled to payment of Tenant
\nImprovement Allowance, but payment or nonpayment thereof shall not relieve
\nLessee of its responsibility and pay for all costs of the Lessee’s Work.<\/p>\n
Lessor shall reimburse an amount up to $25.00 per RSF of the Premises (the
\n“Tenant Improvement Allowance”) towards Lessee’s hard and soft costs actually
\nincurred in the design, permitting, and installation of Lessee’s Work. In
\naddition, Lessor shall reimburse an amount up to $0.15 per RSF of the Premises
\n(the “Space Planning Allowance”) towards Lessee’s actual preliminary space
\nplanning costs. The foregoing shall be paid to Lessee within fifteen (15) days
\nafter final completion of Lessee’s Work and upon Lessor’s receipt of the
\nfollowing items and any other items Lessor deems reasonably necessary to
\nascertain completion of the Lessee’s Work in conformance with the final approved
\nWorking Drawings and applicable building permits:<\/p>\n
1. Final copy of Lessee’s As-Built Plans with changes (if any) from final
\n approved Working Drawings noted
\n 2. Issuance of temporary or permanent Certificate of Occupancy and
\n Lessee’s occupancy of the Premises
\n 3. Contractor Payment of Debt and Claims (AIA G706)
\n 4. Contractor Release and Liens (AJA G706A)
\n 5. General Release and Waiver of Mechanic’s Lien<\/p>\n
-E-9-<\/p>\n
[ATTACH LESSOR’S GENERAL CONTRACTOR’S INSURANCE CERTIFICATE(S)]<\/p>\n
-E-10-<\/p>\n
EXHIBIT F<\/p>\n
Sign Agreement and Criteria<\/p>\n
1. GENERAL. All business identification signage shall comply with building
\nstandard requirements as may from time to time be prescribed by Lessor.<\/p>\n
2. PRIOR CONSENT. Any sign or sign light placed on the Premises or building by
\nLessee shall require Lessor’s prior written consent. Such consent shall not be
\nunreasonably withheld, provided, however, that the size, design, color and
\nlocation of any such sign must in any event conform to the architecture, style
\nand appointments of the building, which conformance shall be in the sole
\ndiscretion of Lessor. No marquee, advertising matter, awning or other structure
\nshall be place on or about the Premises or Building by Lessee without the prior
\nwritten consent of Lessor. Lessor may demand the removal of signs which are not
\nso approved, and Lessee’s failure to comply with said request within 48 hours
\nwill constitute a breach of this Section and will entitle Lessor to terminate
\nthis Lease, or, in lieu thereof, to cause the sign to be removed and the
\nbuilding repaired at the sole expense of Lessee. At the termination of this
\nLease, Lessee will remove all signs placed by it upon the Premises, and will
\nrepair any damage caused by such installation or removal. All signs must comply
\nwith City of Seattle sign ordinances and will be placed in accordance with
\nrequired permits.<\/p>\n
3. EXTERIOR SIGNAGE. Lessee may not affix and maintain upon the glass panes and
\nsupports of the show windows and within twelve inches (12″) of any window and
\nupon the exterior walls of the Premises any signs, advertising matter, names,
\nawning, canopy, marquee, decoration, insignia, trademarks, letters or other
\nthing of any kind (exclusive of the signs, if any, which may be provided for in
\nthe original construction or improvement plans and specifications approved by
\nthe Lessor or Lessee hereunder, and which conform to the Lessor’s sign criteria)
\nwithout the prior written consent of the Lessor. Anything to the contrary in
\nthis Lease notwithstanding, Lessee shall not affix any sign to the roof or erect
\nany free standing\/self supporting signs any place outside the Leased Premises.
\nExcept as set forth in Section 5 below of this Exhibit F, Lessor hereby reserves
\nthe exclusive right to the use, for any purpose whatsoever, of the roof and
\nexterior of the walls of the Premises or the building of which the Premises are
\na part. In the event Lessee shall install any sign which does not meet the
\nLessor’s sign criteria, Lessor shall have the right and authority without
\nliability to Lessee to enter upon the Premises, remove and store the subject
\nsign and repair all damages caused by the removal of the sign. All costs and
\nexpenses incurred by Lessor shall be immediately paid by Lessee as Additional
\nRent. The Lessor reserves the right to remove the Lessee’s sign during any
\nperiod when Lessor repairs, restores, constructs or renovates the Premises or
\nthe Building of which the Premises is a part. Lessee shall, however, erect one
\n(1) sign on the front of the Premises not later than the date Lessee opens for
\nbusiness, in accordance with a design to be prepared by Lessee and approved in
\nwriting by Lessor. Lessee’s sign must comply with all requirements and codes of
\nthe local authorities.<\/p>\n
-F-1-<\/p>\n
4. INTERIOR SIGNAGE. Except as otherwise herein provided, Lessee shall have the
\nright, at its sole cost and expense, to erect and maintain within the interior
\nof the Premises all signs and advertising customary or appropriate in the
\nconduct of a Lessee’s business, provided, however, that Lessee shall upon demand
\nof the Lessor immediately remove any sign, advertisement, decoration, lettering
\nor notice which Lessee has placed or permitted to be placed on, upon or about
\nthe Premises and which Lessor reasonably deems objectionable or offensive, and
\nif Lessee fails or refuses to do, the Lessor may enter upon the Premises and
\nremove the same at Lessee’s cost and expense in this connection. Lessee
\nacknowledges that the Premises are a part of an integrated development, and
\nagrees that control of all signs by Lessor is essential to the maintenance of
\nuniformity, propriety and the aesthetic values in or pertaining to the
\ndevelopment.<\/p>\n
5. PRE-APPROVED SIGNAGE. Lessor hereby approves, to the extent indicated on the
\nattached diagrams, the following signage on the Building, which Lessee may, upon
\nreceipt of applicable permits and approvals, install on the Building at its sole
\ncost and expense:<\/p>\n
Exhibit F-1 – Signage on East Facade of Building;<\/p>\n
Exhibit F-2 – Signage on West Facade of Building;<\/p>\n
Exhibit F-3 – Signage on North Side of Building; and,<\/p>\n
Exhibit F-4 – Signage on South Side of Building.<\/p>\n
Lessee shall be solely responsible for ensuring that all signage listed in this
\nSection 5 complies with all laws, codes and regulations regarding signage
\nenacted by the City of Seattle or any other state or local regulatory authority.
\nShould the City of Seattle, or any other state or local authority, require
\nLessee to make any alterations to the size, location or composition of the signs
\nlisted, Lessee shall not have the right to make such changes without the consent
\nof the Lessor; not to be unreasonably withheld, and provided that Lessee shall
\nnot increase the size or total number of signs on the Building.<\/p>\n
-F-2-<\/p>\n
EXHIBIT G<\/p>\n
ANTENNA LICENSE AGREEMENT<\/p>\n
This Antenna License Agreement (the “AGREEMENT”) made as of this _____ day
\nof _____________, 1999, between TRIAD PIER 70 LLC, a Washington limited
\nliability company (“LICENSOR”), and GO2NET INC., a Delaware corporation
\n(“LICENSEE”).<\/p>\n
WHEREAS, Licensor recognizes that Licensee desires to install ______ (__)
\nsatellite communications dishes and _________ (__) communications antennae on
\nthe roof of the building owned by Licensor commonly known as Pier 70, 2815
\nAlaskan Way, Seattle, King County, Washington (the “BUILDING”) under the
\nconditions described herein; and<\/p>\n
NOW, THEREFORE, in consideration of the mutual covenants herein expressed
\nand for other good and valuable consideration, the receipt and sufficiency of
\nwhich are hereby acknowledged, Licensee and Licensor hereby covenant and agree
\nas follows:<\/p>\n
1. GRANT.<\/p>\n
a. Licensor hereby grants to Licensee a irrevocable (except as and to the
\nextent early termination is permitted elsewhere herein) license (the “LICENSE”)
\nto install, construct, operate, maintain, repair, replace and remove up to
\n____________ (___) satellite dishes not greater than _________-inches diameter
\nin size, and __________ (___) antennae not greater than ___________ (____) feet
\nin height (collectively, the “Antennae”), for Licensee’s transmission of
\ncommunications signals to and reception of communications signals from an Earth
\nsatellite or satellites or to and from microwave communications signals and
\nequipment, together with all related communications equipment and appurtenances
\nthereto, including, without limitation, all necessary conduits, raceways, wiring
\nand cable (collectively, the “EQUIPMENT”) as more particularly set forth herein.<\/p>\n
b. Licensor shall provide the following “Licensed Space”: The exterior
\nspace (the roof space) consisting of approximately ____________ square feet, to
\nbe used solely for the installation of the Antennae, to be located in the area
\nof the Roof of the Building as shown on EXHIBIT A, annexed hereto (the “Roof
\nSpace”). All of Licensee’s Equipment other than the Antennae and associated
\nwiring shall remain in Licensee’s leased Premises pursuant to a Pier 70 Lease
\nbetween Licensor and Lessor and Licensee as Lessee of approximately even date
\nherewith (the “Lease”). Licensor reserves the right to require Licensee, at
\nLicensor’s sole, reasonable discretion, and provided such relocation does not
\nprovide any disruption to Licensee’s existing feeds, upon ten (10) days prior
\nnotice from Licensor, to: (i) relocate the Equipment on the roof to an
\nalternative site (the “RELOCATION SITE”) on the roof during the Term hereof. If
\nLicensee fails to commence such relocation within such ten (10) day period and
\nthereafter diligently perform such relocation to completion, Licensor may effect
\nsuch relocation. Licensor shall reimburse Licensee for its reasonable expenses
\nincurred in connection with any relocation. Copies of all invoices for
\nrelocation shall be delivered promptly to Licensor<\/p>\n
-G-1-<\/p>\n
c. Upon relocation of Licensee, the Licensee’s means of access and utility
\nlines will be relocated by Licensor or at Licensee’s option, by Licensee as
\nrequired to operate and maintain the Equipment. And, thereafter, all references
\nto the Site in the Agreement will be deemed to be references to the Relocated
\nSite. Except as expressly provided in this Paragraph, in no event will the
\nrelocation of Licensee’s equipment, or any part thereof, under this Article
\naffect, alter, modify, or otherwise change any of the terms and conditions of
\nthis Agreement.<\/p>\n
d. Following notice to and approval of Licensor, as set forth in Section 5
\nhereof, Licensee shall have the right to construct, where designated by Licensor
\nand at Licensee’s sole cost and expense, the Equipment.<\/p>\n
e. The License granted herein is not exclusive. Licensor hereby reserves
\nthe right to grant, renew or extend similar licenses or leases to others.
\nWithout limiting the generality of the foregoing, Licensee acknowledges that the
\nBuilding is subject to a Communications Site Sublease Agreement dated May 12,
\n1997, between Licensor as Sublessor and AT&T Wireless Services of Washington,
\nInc., as Sublessee, and that this License is subject and subordinate in all
\nrespects to the rights of the Sublessee thereunder and to any other existing
\ncommunications sublessee\/licensee.<\/p>\n
f. Nothing contained herein shall be construed as granting to Licensee any
\nleasehold, property or ownership rights in the Building, to confer upon Licensee
\nany right, title, estate or interest in the Licensed Space, or to create a
\npartnership or joint venture between Licensor and Licensee, it merely confers a
\nprivilege to use and occupy the Licensed Space, on the terms set forth herein.<\/p>\n
2. TERM. Commencing on the date hereof, this Agreement shall be coterminous
\nwith the Lease, as the same may be extended (the “TERM”). This Agreement shall
\nbe automatically extended upon extension of the Lease pursuant to the terms
\nthereof.<\/p>\n
3. USE.<\/p>\n
a. The Equipment is solely for use for Licensee’s internal business and the
\nbenefits of the Equipment may not be provided by Licensee to third parties
\n(except this License may be transferred in connection with a transfer of the
\nLease or the Premises permitted outright or approved pursuant to Section 19 of
\nthe Lease). The Equipment may not be sold or rented by Licensee to third
\nparties, nor may Licensee sublet or assign any or all of the rights and
\nprivileges granted to Licensee hereunder, except as otherwise provided for in
\nthe Lease. Licensee shall operate the Equipment in compliance with all
\napplicable laws, regulations, and rules of the governmental authorities having
\njurisdiction thereof and shall maintain all necessary licenses and permits with
\nrespect thereto. Licensee shall specify in writing to Licensor, prior to any
\ninstallation or usage in any manner of the Site all the Equipment to be
\ninstalled (including, without limitation, the Antennae, cabling, wiring,
\ncabinets, panels or meters). Licensee agrees not to use or permit the use of the
\nEquipment for any purpose which is illegal, dangerous to life, limb or property
\nor which, in Licensor’s reasonable opinion, creates a nuisance to other tenants
\nof the Building or materially increases the cost of insurance coverage with
\nrespect to the Building.<\/p>\n
-G-2-<\/p>\n
b. High speed data and communications cabling of optical fiber or copper
\nconductor for plenums shall be at minimum, listed suitable for environmental air
\nplenum use, type CMP flame retarding with low smoke producing characteristics as
\ndefined by NFPA and ANSI\/UL standards. Cabling used in vertical risers shall be
\nat minimum, listed suitable for floor to floor and shaft application, type CMR,
\nCMP or MPR depending on the purpose, having fire resistant characteristics
\ncapable of preventing the carrying of fire from floor to floor.<\/p>\n
c. Licensee will not permit any unauthorized person or persons with
\ninsufficient expertise or experience to enter the Licensed Space and maintain or
\noperate its Equipment. Licensee shall keep the Licensed Space locked and secured
\nat all times.<\/p>\n
d. Licensee agrees that Licensee’s Equipment, and the installation,
\nconstruction, maintenance, repair and operation of such Equipment shall in no
\nway damage the Building, interfere with the use of the Building or the operation
\nof communications devices by Licensor or by other tenants, occupants or
\nlicensees of Licensor. If such damage or interference shall occur, Licensor
\nshall give Licensee written notice thereof and Licensee shall take immediate
\naction to correct the same. Licensor reserves the right to disconnect power to
\nLicensee’s Equipment if Licensee fails to correct such problem within a
\nreasonable period of time after receipt of notice of such problem.<\/p>\n
e. The location, specifications, method of installation, appearance and
\nsafety of the Equipment and any changes or alterations thereto, shall at all
\ntimes during the Term be subject to Licensor’s approval, which may be withheld
\nin Licensor’s sole and absolute discretion.<\/p>\n
4. TAXES. Licensee shall pay Licensor or the appropriate taxing authority, if
\napplicable, if and when due, any sales, use, personal property, leasehold
\nexcise, or other taxes or assessments which are assessed or due by reason of
\nthis License or Licensee’s use of the Building.<\/p>\n
5. CONSTRUCTION. PRIOR to the commencement of any work during the Term,
\nLicensee shall, at its sole cost and expense, prepare and deliver to Licensor
\nworking drawings, plans and specifications (collectively, the “PLANS”),
\ndetailing the location, method of installation, appearance and specifications of
\nthe Equipment and the Licensed Space, in such detail as Licensor may require,
\nincluding, without limitation, any required utility connections and specifically
\ndescribing the proposed construction and work. No work shall commence until
\nLicensor has approved the Plans, which approval may be withheld in Licensor’s
\nsole and absolute discretion. If Licensor does not approve or disapprove
\nLicensee’s Plans within ten (10) days of receipt thereof, the Plans shall be
\nconclusively deemed approved by Licensor. All labor used in connection with the
\ninstallation, construction, operation, maintenance, repair, replacement and
\nremoval of the Equipment shall at all times be such as, in the reasonable
\nopinion of Licensor, shall work in harmony with other trades at the Building.
\nLicensee shall:<\/p>\n
a. Perform such construction in a workman like and safe manner consistent
\nwith generally accepted construction standards and the requirements set forth at
\nEXHIBIT E to the Lease concerning the Lessee’s Work defined (collectively, the
\n“RULES AND REGULATIONS”);<\/p>\n
-G-3-<\/p>\n
b. Perform such construction and work in such a way as to cause no
\ninterference with the operation of the Building or other tenants, licensees and
\noccupants of the Building;<\/p>\n
c. Be responsible, at its sole cost and expense, for the installation of
\nany structural reinforcements or supports required in connection with the
\nEquipment; and<\/p>\n
d. Before making any installations on the Roof space, in order to prevent
\ndamage to the roof or roof area or the voiding or other problems with the
\nenforcement of the warranty of the roof, Licensee agrees to (1) provide Licensor
\nwith Licensee’s plans and specifications for any such installation and (2)
\nobtain Licensor’s PRIOR written consent to such installation; and if Licensor
\nrequires, Licensee at its sole cost and expense, have Licensee’s roofing
\ncontractor and\/or designee perform any work that affects the roof, roof area or
\nroof warranty or have such roofing contractor and\/or designee present during
\nsuch installation. Once such installation has been made, Licensee will not make
\nany material alterations to same without obtaining the prior written consent of
\nthe Licensor. Licensor shall have the right to disapprove any installation(s) or
\nalterations that may void or adversely affect the roof warranty or roof
\nconfiguration. Notwithstanding the foregoing, if Licensor does not approve or
\ndisapprove Licensee’s plans and specifications within ten (10) days of receipt
\nthereof, Licensee’s plans and specifications shall be conclusively deemed
\napproved by Licensor.<\/p>\n
e. Licensee shall install its equipment at the sole cost, expense and
\nrisk of Licensee, and in compliance with all federal, state and local building,
\nzoning, electric, telecommunications and safety codes, ordinances, standards,
\nregulations, laws and requirements including, without limitation, those of the
\nFederal Communications Commission. Licensee, at its sole cost and expense, shall
\nobtain any permits, licenses, variances or other approvals required with respect
\nto the installation or operation of the Equipment to be installed by Licensee or
\nto the alterations to be performed by the Licensee. Licensee shall deliver true
\nand complete copies thereof to Licensor, but at no cost to Licensor, PRIOR to
\ncommencing any installations or alterations. Licensor shall, at Licensee’s
\nrequest, but at no cost to Licensor, reasonably cooperate with Licensee to
\ninsure that any and all permits, licenses, variances and other approvals are
\nobtained.<\/p>\n
6. ELECTRIC UTILITIES.<\/p>\n
a. At the request of Licensor, Licensee shall pay the costs associated
\nwith installation of a separate electrical panel and meter for the Equipment and
\nshall be responsible for any and all electrical and HVAC costs attributable to
\nsuch Equipment. Licensee shall obtain Licensor’s PRIOR written consent as to the
\nlocation and method of installation as to its electrical panel, meter or
\nelectric or telephone utility lines. Licensor shall have no liability to
\nLicensee if the electricity available to Licensee for the Equipment shall not be
\nadequate to meet Licensee’s needs.<\/p>\n
b. Licensor shall use reasonable efforts to notify Licensee in advance of
\nany planned utility outages which may interfere with Licensee’s use, but in no
\nevent shall Licensor be liable to Licensee for any damages, direct or indirect,
\nresulting from any loss of power. Licensee shall at all times be responsible for
\nthe provision of its own emergency or “backup power”, and any such “backup
\npower” system installed by Licensee shall be the sole responsibility of
\nLicensee.<\/p>\n
-G-4-<\/p>\n
7. LICENSEE’S COVENANTS. Licensee hereby covenants and agrees:<\/p>\n
a. To keep the Licensed Space and the Equipment in good order, repair and
\ncondition throughout the Term and promptly and adequately repair all damage to
\nthe Building caused by Licensee, other than ordinary wear and tear and damage
\nfrom the elements;<\/p>\n
b. Not to place any Equipment in the Licensed Space in excess of the
\nweight then reasonably supportable without causing damage to the Building;<\/p>\n
c. To comply with all federal, state, county and municipal laws, orders,
\nrules and regulations applicable to the Equipment and the Building
\n(collectively, “GOVERNMENTAL LAWS”) and the Rules and Regulations of the
\nBuilding;<\/p>\n
d. Not to disrupt, affect or interfere with other providers of services
\nin the Building or with any occupant’s use and enjoyment of its premises or the
\ncommon areas of the Building; and<\/p>\n
e. That if any Governmental Law or any bureau, department, agency,
\nauthority or official of any federal, state, county or municipal governmental or
\nquasi-governmental entity having jurisdiction, requires or recommends that any
\nchange, modification or alteration be made to the Building, the Equipment and\/or
\nthe Licensed Space by reason of Licensee’s use of the Equipment, the Licensed
\nSpace or the Building, then Licensee shall, at its sole cost and expense,
\npromptly make any such change, modification or alteration. Notwithstanding the
\nforegoing, Licensor shall have the right to make any such change, modification
\nor alteration to the Equipment, the Licensed Space and\/or the Building that may
\nbe required or recommended and Licensee shall promptly reimburse Licensor; upon
\nreceipt of invoices for such work, for all Licensor’s costs and expenses
\nincurred in connection therewith.<\/p>\n
8. EQUIPMENT. The Equipment, and any other personal property of Licensee in
\nthe Building, shall remain the property of Licensee, shall be there at the sole
\nrisk of Licensee and Licensor shall not be liable for damage thereto or theft,
\nmisappropriation or loss thereof, except in the event of Licensor’s gross
\nnegligence or willful misconduct. Any change in Equipment by Licensee shall
\nrequire the PRIOR written consent of Licensor; provided that Licensor will not
\nunreasonably withhold its consent to additional antennas. At the termination or
\nexpiration of this Agreement, Licensee shall, at Licensee’s sole cost and
\nexpense, remove the Equipment and Licensee’s personal property from the
\nBuilding, and repair all damage caused by such removal. Licensee shall repair
\nand restore the Licensed Space, unless requested otherwise by prior written
\nnotice from Licensor, to its original condition at the time the Equipment was
\ninstalled, reasonable wear and tear excepted. Any property not so removed by the
\nexpiration or termination of this Agreement shall be deemed the property of
\nLicensor, and Licensor may, in its sole and absolute discretion, remove the
\nEquipment and other property at Licensee’s cost, and Licensee shall pay Licensor
\npromptly upon demand all costs and expenses incurred in removing such property.<\/p>\n
9. FREQUENCIES. Licensee shall furnish a copy of the Federal Communications
\nCommission or any other agency which grants that awards of frequencies to the
\nLicensee including a list of Licensee’s frequencies.<\/p>\n
-G-5-<\/p>\n
a. Licensee shall not change its frequencies without prior written
\nconsent of Licensor.<\/p>\n
b. Licensor shall use reasonable efforts to prevent frequency
\ninterference by existing licensees of tenants. Licensee shall conduct its own
\ninvestigation of existing frequencies. Subsequent to the commencement of the
\nTerm hereof, and excluding existing antenna users and parties with pre-existing
\ncommunications facility rights at the Building, Licensor shall not install new
\ncommunications equipment on the Building if such equipment is likely to cause
\ninterference with Licensee’s operations as permitted hereby. If equipment
\ninstalled on the Building by Licensor after the commencement date hereof causes
\nsuch interference, Licensor shall cause such interference to cease within ten
\n(10) business days after notice thereof from Licensee. If equipment installed on
\nthe Building after the Commencement Date hereof by other tenants, occupants of
\nusers of communications equipment (other than existing antenna users and parties
\nwith pre-existing communications facility rights at the Building) causes
\ninterference with Licensee’s uses as permitted herein, Licensor shall use
\nreasonable efforts, at no cost to Licensee, to cooperate with Licensee to cause
\nsuch interference to cease. If such interference does not cease promptly,
\nLicensee shall have the right to pursue any and all remedies it may have at law
\nor equity against the interfering party to enjoin or terminate such
\ninterference, or Licensee may terminate this License upon thirty (30) days’
\nnotice to Licensor.<\/p>\n
c. Licensee’s use shall not interfere with any existing licensees’ or
\ntenants’ frequencies.<\/p>\n
d. Licensee shall be responsible to correct any interference its
\nfrequency may cause.<\/p>\n
10. CONDITION OF LICENSED SPACE AND BUILDING. Licensor makes no warranty or
\nrepresentation that the Licensed Space or the Building is suitable for the use
\ndescribed in this Agreement, it being assumed that Licensee has satisfied itself
\nthereof. Licensee has inspected the Licensed Space and the Building, accepts the
\nsame “as is” and agrees that Licensor is under no obligation to perform any work
\nor provide any materials to prepare the Licensed Space or the Building for
\nLicensee. Licensee acknowledges that Licensor has no obligation to assure or
\nguarantee Licensee the necessary connections to public streets, utilities or
\nadjacent buildings that may be necessary for the operation of Licensee’s
\nEquipment in the Building.<\/p>\n
11. ACCESS.<\/p>\n
a. Licensor shall provide Licensee unlimited access to the Licensed Space
\nso the Licensee may perform installation, operation, maintenance, replacement
\nrepair and removal of the Equipment subject to reasonable rules, regulation and
\nrestrictions as Licensor may from time to time deem necessary.<\/p>\n
b. Licensee shall supply names and replacements therefor in writing to
\nLicensor for access to the Site. Arrangements for access shall be made in
\nadvance with the Licensor through its designated security offices in the
\nBuilding.<\/p>\n
c. Licensor shall have the right to enter the Site at any time in the
\nevent of an emergency and at all reasonable times and upon reasonable notice for
\nthe purpose of (1) inspecting<\/p>\n
-G-6-<\/p>\n
same, (2) making any repairs to the Site and performing any work therein as may
\nbe necessary, in Licensor’s judgment or (3) exhibiting the Site for the purpose
\nof sale, lease or financing.<\/p>\n
12. INDEMNIFICATION. Licensee, at its sole cost and expense, shall indemnify,
\nexonerate, defend and hold Licensor, its managing agent and their respective
\nprincipals, officers, directors, agents, employees and servants harmless from
\nand against any and all loss, cost, damage, liability, judgment and expense of
\nwhatever kind arising directly or indirectly from the installation,
\nconstruction, operation, maintenance and repair of Licensee’s Equipment or from
\nLicensee’s breach of this Agreement, including, but not limited to, reasonable
\nattorneys’ fees and disbursements, except to the extent such loss, damage, cost,
\nliability, judgment or expense is due to the gross negligence or willful
\nmisconduct of Licensor or its employees, agents or invitees. Licensee’s
\nindemnification obligations shall expressly include any and all environmental
\ndamages, claims, damages, liabilities, judgments, losses and expenses incurred
\nin connection with this Agreement. The provisions of this Section 12 shall
\nsurvive the expiration or termination of this Agreement.<\/p>\n
13. INSURANCE.<\/p>\n
a. Prior to the commencement of any work and during the Term, Licensee
\nshall obtain and maintain the following insurance, at its own cost and expense,
\nin amounts not less than those specified below:<\/p>\n
i. Workers Compensation insurance in accordance with the laws of
\n the State of Washington.<\/p>\n
ii. Employer’s contingent liability (stop gap) insurance in an
\n amount not less than One Million Dollars ($1,000,000.00).<\/p>\n
iii. Comprehensive General Liability for bodily injury liability and
\n property damage liability with limits of Two Million Dollars
\n ($2,000,000.00) combined single limit each occurrence.<\/p>\n
iv. Fire and Extended Coverage insurance in an amount equal to full
\n replacement cost of the Equipment and Licensee’s other personal property at
\n the Building.<\/p>\n
b. Each insurance policy shall list as additional insureds Licensor and
\nits managing agent and shall provide for thirty (30) days prior notice of
\nmodification or cancellation to each certificate holder. All policies of
\ninsurance obtained by Licensee shall be issued by companies licensed to do
\nbusiness in the State of Washington and be reasonably acceptable to Licensor.<\/p>\n
c. If Licensee fails to obtain any of the insurance policies required by
\nthis Section 13, Licensor shall have the right and option, but not the
\nobligation, to maintain any or all of such insurance to be provided by Licensee.
\nThe premiums for any such insurance obtained by Licensor shall be payable by
\nLicensee.<\/p>\n
d. Licensor and Licensee each release the other and their respective
\nagents and employees from all liability to each other, or anyone claiming
\nthrough or under them, by way of<\/p>\n
-G-7-<\/p>\n
subrogation or otherwise, for any loss or damage to property caused by or
\nresulting from risks insured against under this Agreement, pursuant to insurance
\npolicies carried by the parties which are in force at the time of the loss or
\ndamage. Licensor and Licensee shall each request its insurance carrier(s) to
\ninclude in policies provided pursuant to this Agreement an endorsement
\nrecognizing this waiver of subrogation. The waiver of subrogation endorsement
\nneed not be obtained if it incurs an additional cost for the affected policy,
\nunless following written notice, the other party elects to pay that additional
\ncost to obtain the waiver of subrogation endorsement. This provisions of this
\nSection 13(d) shall survive the termination or expiration of this Agreement.<\/p>\n
14. LIENS. Licensee shall be responsible for the satisfaction or payment of any
\nliens for any provider of work, labor, material or services claiming by, through
\nor under Licensee. Licensee shall also indemnify, hold harmless and defend
\nLicensor against any such liens, including the reasonable fees and disbursements
\nof Licensor’s attorneys. Such liens shall be discharged by Licensee within
\nthirty (30) days after notice of filing thereof by bonding, payment or
\notherwise.<\/p>\n
15. PERFORMANCE OF WORK. Licensee may contract or subcontract any portion of
\nwork within the Building contemplated by this Agreement to any person or entity
\ncompetent to perform such work. In no event shall such subcontract relieve
\nLicensee of any of its obligations under this Agreement. Licensee agrees to
\nprovide Licensor at least fifteen (15) days PRIOR written notice of the
\ncommencement of any construction to enable Licensor to post and record notices
\nof non-responsibility.<\/p>\n
16. EVENTS OF DEFAULT. Each of the following occurrences shall constitute an
\n“Event of Default” under this Agreement:<\/p>\n
a. Breach by Licensee of any monetary or non-monetary obligations under
\nthis Agreement.<\/p>\n
b. Abandonment of the Equipment during the Term.<\/p>\n
c. Interference caused to pre-existing telecommunications facilities or
\nto tenants or other occupants of the Building, by the installation,
\nconstruction, operation, maintenance, replacement or repair of Licensee’s
\nEquipment.<\/p>\n
d. Licensee shall become insolvent or unable to pay its debts as they
\nbecome due, or takes any action to, or notifies Licensor that Licensee intends
\nto, file a petition under the U.S. Bankruptcy Code or under any similar law.<\/p>\n
e. Breach or default under the Lease.<\/p>\n
17. TERMINATION; REMEDIES.<\/p>\n
a. Upon occurrence of an Event of Default, the non-breaching party shall
\ngive written notice to the breaching party, setting forth the nature of the
\ndefault. The breaching party shall have thirty (30) days to cure any non-
\nmonetary default (except as set forth in Section 3(c) hereof) and five (5) days
\nto cure any monetary default. If the breaching party shall have failed to<\/p>\n
-G-8-<\/p>\n
cure such default within the applicable cure period, the non-breaching party may
\nelect to terminate this Agreement, whereupon Licensee shall, upon request by
\nLicensor, forthwith remove its Equipment from the Building in a neat and orderly
\nmanner in accordance with this Agreement. In addition, either party may exercise
\nany and all remedies available to it at law or in equity.<\/p>\n
b. If the Building is damaged by fire or other insured casualty and the
\nestimated costs to repair the same are less than Two Hundred Fifty Thousand
\nDollars ($250,000), Licensor shall repair the same; provided, however, Licensor
\nmay elect not to restore damage (a) which occurs within the last six (6) months
\nof the Term hereof, (b) which is not covered by Licensor’s insurance policy
\n(permitted deductibles excepted) or the proceeds of which are not available to
\npay the costs of restoration, or (c) any other portion of the Building is
\ndamaged to the extent Licensor elects not to restore the same. If the Site or
\nany other portion of the Building is so damaged and Licensor’s estimate of the
\nrepair costs exceeds Two Hundred Fifty Thousand Dollars ($250,000), Licensor may
\nelect to cancel this License or repair the same, provided that Licensor shall
\nnot be obligated to spend more than the amount of the insurance proceeds paid
\nfor such casualty. If Licensor elects to repair the damage, it shall diligently
\npursue such repair, subject to force majeure, to completion in a commercially
\nreasonable manner, and this License shall remain in full force and effect. If
\nLicensor elects to cancel this License as provided in this Section, Licensor
\nshall give written notice of said election within sixty (60) days after the date
\nLicensor becomes aware of the damage and this License shall end as of the date
\nspecified in such notice. If this License is so canceled, all interest of
\nLicensor in the Site shall terminate on the date specified in such notice. If
\nLicensor is not able to complete restoration of the Building within twelve (12)
\nmonths following the date of damage, Licensee may elect to terminate this
\nLicense. Licensor shall not be required to repair any injury or damage by fire
\nor other cause, or to make any repairs or replacements of any leasehold
\nimprovements, fixtures, any plate glass anywhere on or about the Site, or other
\npersonal property of Licensee. Licensee shall promptly repair all such items
\nfollowing any such casualty.<\/p>\n
c. Anything to the contrary contained herein notwithstanding, if, during
\nthe License Agreement Term, Licensor in its sole and absolute judgment, believes
\nthat Licensee’s use of the Site poses a human health or environmental hazard
\nthat cannot be remediated or has not been remediated within 30 days after
\nLicensee has been notified thereof, then (1) Licensee shall immediately cease
\nall operations on the Site; (2) the Agreement shall terminate on 10 days prior
\nnotice to Licensee and (3) Licensee shall remove all Equipment in the Site
\ninstalled by Licensee within 30 days thereafter.<\/p>\n
18. ASSIGNMENT. Licensee shall not sub-license, sublease, assign or otherwise
\ntransfer this Agreement in whole in part or any interest herein, whether
\nvoluntarily or involuntarily, or by operation of law, without the prior written
\nconsent of the Licensor, which consent may be withheld or conditioned in
\nLicensor’s sole discretion. Notwithstanding the foregoing, this Agreement shall
\nbe automatically deemed assigned in the event of any assignment of all of
\nLicensee’s interest as the Lessee under the Lease which is consented to by
\nLicensor as the Lessor thereunder or which is permitted outright. No assignment,
\nwhether or not with Licensor’s consent, shall relieve Licensee of any liability
\nhereunder. Copies of sub-license agreements must be submitted to Licensor for
\napproval.<\/p>\n
-G-9-<\/p>\n
19. SURRENDER OF LICENSED SPACE.<\/p>\n
a. Removal of Property – Upon the expiration or termination of the Term
\nof this Agreement, Licensee shall quit and surrender possession of the Licensed
\nSpace to Licensor in good order, condition and repair, reasonable wear and tear
\nexcepted, in a reasonable state of cleanliness. Licensee, if requested by
\nLicensor, shall remove any or all conduits, raceways, wiring, cable and
\nassociated equipment installed by Licensee. If Licensee is not requested to
\nremove any such items it is agreed and understood any such items are and shall
\nremain the property of the Licensor. Licensee shall also repair at its expense
\nall damage to Licensed Space resulting from such removal.<\/p>\n
b. Abandoned Property – Any property of Licensee not removed by Licensee
\nupon the expiration of the Term of this Agreement or within two (2) days after a
\ntermination by reason of Licensee’s default as provided in this Agreement, shall
\nbe considered abandoned, and Licensor may remove any or all such items or
\nproperty and dispose of same in any manner at the expense of the Licensee.<\/p>\n
20. SUBORDINATION. This Agreement is and shall be subordinate to any
\nencumbrance now of record or recorded after the date of this Agreement affecting
\nthe Building. Such subordination is effective without any further act of
\nLicensee. Nevertheless, Licensee shall from time to time upon written request
\nfrom Licensor, execute and deliver any documents or instruments that may be
\nreasonably required by Licensor to confirm or effectuate any subordination. If
\nLicensee fails to execute and deliver any such documents or instruments within
\nfive (5) days’ of receipt, Licensee irrevocably constitutes and appoints
\nLicensor as Licensee’s special attorney-in-fact to execute and deliver any such
\ndocuments or instruments. Licensee shall attorn to any purchaser of the Building
\nat any foreclosure sale, or to any grantee or transferee designated in any deed
\ngiven in lieu of foreclosure, provided that any such purchaser, transferee or
\ngrantee executes a commercially reasonable nondisturbance agreement in favor of
\nlicensee.<\/p>\n
21. HOLDING OVER. Any holding over after the expiration or termination of the
\nTerm of this Agreement without the consent of the Licensor shall be construed to
\nbe a License from month to month upon the same provisions and conditions as
\notherwise set forth herein except that the Fee shall equal 150% of the Fee
\npayable (without reduction) during the last month of the Term hereof. Licensee
\nshall indemnify and hold Licensor harmless from and against any liability,
\ncosts, damages and expenses resulting from the delay by Licensee in surrendering
\nthe Licensed Space, including any claims made by any succeeding or prospective
\nLicensee based on any such delay.<\/p>\n
22. NOTICES. Every notice required or permitted hereunder shall be in writing
\nand shall be deemed to have been duly given three (3) business days after
\nmailing by certified or registered mail, return receipt requested, or upon
\nreceipt if delivered by courier, to the party’s address set forth in the
\nintroductory paragraph of the Agreement. Either party may change its address for
\nthe purpose of notice hereunder by providing the other party with notice of the
\nnew address.<\/p>\n
23. GOVERNING LAW. This Agreement shall be governed by and construed under the
\nlaws of the State of Washington.<\/p>\n
-G-10-<\/p>\n
24. ATTORNEYS’ FEES. In the event of any action filed in relation to this
\nAgreement, the prevailing party shall be entitled to recover from the other
\nparty reasonable attorneys’ fees and disbursements.<\/p>\n
25. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement in
\nconnection with the subject matter hereof between the parties and all
\nrepresentations and understandings have been merged herein.<\/p>\n
26. CONSTRUCTION. If any provision of this Agreement, or the application
\nthereof to any person or circumstance, shall to any extent, be invalid or
\nunenforceable, the remainder of this Agreement or the application of such
\nprovision or provisions to persons or circumstances other than those as to whom
\nor which it is held invalid or unenforceable, shall not be affected thereby, and
\nevery provision of this Agreement shall be valid and enforceable to the fullest
\nextent permitted by law.<\/p>\n
LICENSOR: LICENSEE:<\/p>\n
TRIAD PIER 70 LLC, a Washington GO2NET INC., a Delaware
\nlimited liability company corporation<\/p>\n
By: __________________________<\/p>\n
By: _________________________ Title: ___________________<\/p>\n
Title:___________________<\/p>\n
-G-11-<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7652],"corporate_contracts_industries":[9510],"corporate_contracts_types":[9579,9612],"class_list":["post-41949","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-go2net-inc","corporate_contracts_industries-technology__programming","corporate_contracts_types-land","corporate_contracts_types-land__wa"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41949","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41949"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41949"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41949"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41949"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}