Exhibit 10.11
COMMERCIAL LEASE
15 LAKE BELLEVUE OFFICE
BUILDING
THIS LEASE, dated as of the 20TH day
of March, 2002, is between 15 LAKE BELLEVUE LLC, a Washington
limited liability company ( “Lessor”
) and HouseValues.com, Inc., a Washington corporation (
“Lessee” ).
1. Premises.
Lessor hereby leases to Lessee, upon
the terms and conditions herein set forth, a portion of the real
property situated in the City of Bellevue, King County, Washington,
legally described on Exhibit A attached hereto (herein called the
“Building” ). The portion of the
Building leased to Lessee shall be as located and outlined on the
sketches attached hereto as Exhibits B-l through B-5, consisting of
4, 604 rentable square feet on the first floor (“New First
Floor Space”), 17,731 rentable square feet on the second
floor (which second floor space consists of 12,193 rentable square
feet currently occupied by Lessee (“Current Second Floor
Space”) and 5,538 rentable square feet of additional space to
be occupied by Lessee once it is completed by Lessor (“New
Second Floor Space”)), and a one year “Space
Pocket” on the first floor of 7,505 rentable square feet, for
a total of 29,840 rentable square feet (herein called the
“Premises” ). The term
“Building” includes land, building, and improvements.
All calculations of area shall be made by Lessor’s architect.
Provisions of this Lease referring to “Rentable Square
Footage” or “RSF” shall
refer to the rentable square footage of the Premises. Rentable
square feet for purposes of this Lease shall be calculated using a
single-tenant load factor of 10% for the second floor (as long as
Lessee leases the entire second floor of the Building), a
multi-tenant load factor of 22.1% for the second floor (if Lessee
at any time leases less than the entire second floor of the
Building), and a multi-tenant load factor of 22.1% for the first
floor of the Building, and a single-tenant load factor of
approximately 13.5% for the first floor (if Lessee at any time
leases the entire first floor of the Building) and the rentable
square feet on the entire first floor shall be 17,469.
2. Common Areas.
Lessee shall have nonexclusive use
of all areas of the Building designated by Lessor as common areas
for the use generally of tenants of the Building.
3. Use of Premises.
The Premises shall be used for
general office use including conference and computer facilities,
employee cafeteria and dining area (including related kitchen
facilities), and any other legally permitted use consistent with
the character of a similar type building and for no other purpose
without the prior consent of Lessor. Lessee has determined to its
satisfaction that the Premises can be used for these purposes.
Lessee shall not allow undue noise or vibration. Lessee shall not
allow use of the Premises in a manner which would increase
insurance premiums, in a manner which would interfere with any
other tenant in the Building, or for any illegal purpose. Lessee
shall comply with all governmental rules, orders, regulations, or
requirements relating to its use and occupancy of the Premises.
Lessee shall not cause or allow the presence, use, storage or
disposal of any hazardous or toxic waste or materials on the
Premises or the Building at any time. This prohibition shall not
apply to any hazardous materials contained in products typically
used in office and cleaning products, and Lessee shall use and
dispose of all such products in accordance with their labeling
instructions and applicable laws. Hazardous and/or toxic waste or
materials shall include any substance, waste, or material which is
designated as a Hazardous Substance under the Comprehensive
Environmental Response, Compensation and Liability Act (42 USC
Section 9601 et seq.), the Model Toxics Control Act (revised Code
of Washington Section 70.105D), or under any other applicable law.
Lessee agrees to indemnify and hold Lessor harmless from and
against any liabilities, obligations, damages, costs, and expenses
(including attorneys’ fees incurred prior to trial, at trial
and upon appeal) incurred as a result of any hazardous or toxic
waste or material having been released, used, stored, or disposed
of by Lessee, its employees, agents, invitees or licensees on the
Premises or the Building. Lessor agrees to
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indemnify and hold Lessee harmless from and
against any liabilities, obligations, damages, costs, and expenses
(including attorneys’ fees incurred prior to trial, at trial
and upon appeal) incurred as a result of any hazardous or toxic
waste or material having been present, used, stored or disposed of
on the Premises or the Building, unless such hazardous or toxic
waste or material was released, used, stored or disposed of by
Lessee, its employees, agents, invitees or licensees on the
Premises or the Building. This indemnity shall survive termination
of this Lease.
4. Term; Extension.
This Lease shall be for a term of
sixty (60) months, commencing April 1, 2002
“Commencement Date” . Provided that
Lessee is not then in default of any provisions of this Lease
beyond applicable notice and cure periods, Lessee shall have the
right to extend this Lease for one (1) additional five-year period
“Extended Term” . Lessee shall
give to Lessor written notice of Lessee’s election to so
extend this Lease, and such written notice shall be delivered to
Lessor on or before July 1, 2006. Once notice is delivered to
Lessor, it shall be irrevocable and this Lease shall be deemed
extended until March 31, 2012. All terms and conditions of this
Lease shall apply to the Extended Term, except that the Basic
Rental during the Extended Term shall be at ninety-five percent
(95%) of Market Rate. As used in this Lease, “Market
Rate” means the rental, then being obtained by
non-renewing arm’s length tenants that are comparable to
Lessee in terms of quality, size and financial capability, paid on
a per rentable square foot basis under a comparable lease for
comparable space in a building of comparable quality with
comparable access, visibility, and convenience of location, and
located in the Bellevue area. Lessor and Lessee shall have one (1)
month after Lessor receives the extension notice from Lessee in
which to agree on the Market Rate for the Basic Rental. If the
parties are unable to agree on Market Rate within that period, then
Market Rate shall be determined by binding arbitration conducted in
accordance with the Arbitration Rules for the Real Estate Industry
of the American Arbitration Association then in effect, except that
there shall be only one arbitrator. The arbitrator shall be a
commercial real estate broker or professional with at least five
(5) years experience in the Bellevue office market who has not
worked for either party within the immediately preceding two (2)
years. If the parties cannot agree on the identity of the
arbitrator then each party shall select a broker or professional
who meets the foregoing criteria and two brokers or professionals
so-selected shall jointly select the arbitrator. The costs and
expenses of the arbitration shall be divided equally between Lessor
and Lessee. The parties agree to complete the arbitration within
two months after Lessor receives the extension notice from Lessee,
and the arbitrator shall be instructed to complete the arbitration
within such two (2) month period, time being of the
essence.
5. Rental.
Lessee agrees to pay Lessor, at
Lessor’s address set forth in Section 27 hereof or at such
other place as Lessor may designate in writing, monthly rent
“Basic Rental” in accordance with the
following schedule:
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Year
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Basic Rental
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1
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$23.00/RSF per year
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2
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$23.50/RSF per year
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3
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$24.00/RSF per year
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4
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$24.50/RSF per year
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5
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$25.00/RSF per year
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Monthly rental shall be paid by
Lessee in advance on the first day of each and every month during
the term hereof. The obligation of Lessee to pay Basic Rental and
Additional Rental is absolute and unconditional, and shall not at
any time be subject to offset, discount, or reduction of any kind
whatsoever. The term “Rental” as used
herein shall mean collectively “Basic Rental” and
“Additional Rental.” See also Section 40(d).
6. Additional Rental.
Commencing January 1, 2003, Lessee
shall pay to Lessor as “Additional
Rental” (in addition to Basic Rental provided in
Section 5 above) Lessee’s Percentage Share of Operating
Expenses applicable to the Building, to the extent that such
Operating Expenses for each Lease Year, after the 2002
Lease
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Year, increase over the Operating Expenses for
the 2002 Lease Year. Lessee’s “Percentage
Share” of increases in Operating Expenses shall be
calculated based upon the total rentable square feet of the
Premises for which Rental has commenced under this Lease (as it may
change from time to time), divided by 35,200, which is the total
rentable square feet of the Building.
The term “Operating
Expenses” means all costs of ownership, management,
operation, and maintenance of the Building and common areas,
including, without limitation, the following: wages, salaries,
fringe benefits, and other direct and indirect costs of employees;
janitorial, cleaning, landscaping, guard, security and other
services; gas, electricity, water, sewer, waste disposal, and other
utilities; heating, ventilation and air-conditioning;
window-washing; materials and supplies; painting, repairs, and
other maintenance; parking lot resurfacing and restriping, as well
as cleaning, sweeping, and ice and snow removal; maintenance,
repair, replacement, and service of equipment, including without
limitation the HVAC system, alarm systems, elevator equipment, and
other equipment; costs of independent contractors; management fees
and expenses; audit expenses; insurance and insurance deductibles
of any kind (insurance deductibles shall not be an Operating
Expense to the extent that they exceed what would be the maximum
commercially reasonable deductible for a Building of this type);
taxes, assessments, and other governmental and utility charges of
any kind; the cost of any repair, renovation, alteration, and
improvement required to be made by Lessor under any governmental
law, rule or regulation first enacted after the Commencement Date;
supplying directional signs, other markers, and car stops; a
market-rate allowance to Lessor for Lessor’s supervision of
maintenance and operation of common areas; and any other expense or
charge which in accordance with generally accepted accounting and
management principles would be considered a cost of ownership,
management, operation, and maintenance of the Building. The
determination of Operating Expenses and their allocation to the
tenants shall be made by Lessor in a reasonable and
nondiscriminatory manner consistent with generally accepted
accounting and management principles. See also Section
40(f).
Prior to commencement of each Lease
Year (starting with the 2003 Lease Year), or as soon thereafter as
practicable, Lessor shall give Lessee notice of its estimate of the
amounts payable under this section for the ensuing Lease Year. On
the first day of each month during the ensuing Lease Year, Lessee
shall pay to Lessor l/12th of such estimated amounts, provided,
that if such notice is not given prior to the commencement of such
ensuing Lease Year, Lessee shall continue to pay on the basis of
the prior Lease Year’s estimate until the month after such
notice is given. If at any time or times it appears to Lessor that
the amounts payable under this section for the current Lease Year
will vary from its estimate, Lessor may, by notice to Lessee,
revise its estimate for such Lease Year, and subsequent payments by
Lessee for such Lease Year shall be based upon such revised
estimate.
Within ninety (90) days after the
close of each Lease Year or as soon after such 90-day period as
practicable (but no later than July 1), Lessor shall deliver to
Lessee a statement of amounts payable under this section for such
Lease Year. If such statement shows an amount owing by Lessee that
is less than the estimated payments for such Lease Year previously
made by Lessee, it shall be accompanied by a refund of the excess
within thirty (30) days after delivery of such statement. If such
statement shows an amount owing by Lessee that is more than the
estimated payments for such Lease Year previously made by Lessee,
Lessee shall pay the deficiency to Lessor within thirty (30) days
after delivery of the statement. Lessee shall be entitled at its
expense to review at Lessor’s offices the records on which
the statement of amounts payable is based. If no such statement is
provided by July 1 of any Lease Year, then Lessor shall have waived
the right to recover any deficiency for the prior Lease
Year.
Lessee may inspect Lessor’s
books and records related to the amount of Additional Rental
charged to Lessee, subject to the following: (a) Such review may be
performed only at Lessor’s offices during normal business
hours; and (b) Lessee may conduct the review only once each year
during the 120 day period starting on the date that Lessor provides
a final allocation for a year pursuant to the prior paragraph (this
review by Lessee may cover the prior one year only, and if the
review is not requested in writing and completed by Lessee by the
end of the 120 day period, no review or audit or challenge of the
Additional Rental for the most recent prior year, or any other
prior years, may be made); and (c) Lessee shall pay all of
Lessee’s and Lessor’s out-of-pocket costs of the
inspection; provided, however, that Lessee shall not be required to
pay any of Lessor’s costs if such review discovers that
Lessor overcharged Lessee by more than $6,000 and if such review
discovers that Lessor overcharged Lessee by more than $10,000,
Lessor shall pay the reasonable out-of-pocket costs incurred by
Lessee in connection with such review or audit.
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In determining the amount of
Operating Expenses, for the purpose of this Section 6: (a) if less
than one hundred percent (100%) of the Building shall have been
occupied by tenants and fully used by them at any time, Operating
Expenses shall be increased to an amount equal to the like
operating expenses which would normally be expected to be incurred
had such occupancy been one hundred percent (100%) and had such
full utilization by tenants been made during the entire period; and
(b) if the Lessor is not furnishing any particular work or service
(the cost of which if performed by the Lessor would constitute an
Operating Expense) to a tenant who has undertaken to perform such
work or service in lieu of the performance thereof by the Lessor,
Operating Expenses shall be deemed for the purposes of this Section
6 to be increased by an amount equal to the additional Operating
Expense which would reasonably have been incurred during such
period by the Lessor if it had at its own expense furnished such
work or service to such tenant. This paragraph is not intended to
allow Lessor to recover Operating Expenses in excess of the actual
Operating Expenses incurred.
Lessee shall pay as rent monthly, in
addition to the Basic Rental and Additional Rental during the term
of this Lease such “Special Building Operating
Expenses” as are required and incurred as a result of
Lessee’s occupancy and use of the Premises, or any part
thereof, and which are in addition to normal business office
expenses, which Special Building Operating Expenses shall mean
actual out-of-pocket costs incurred by Lessor for (a) utility or
HVAC usage outside normal business hours or for equipment that
Lessor designates as heavy usage equipment at the time Lessor
approves their installation in the Premises and (b) increase in
insurance premiums attributable to the Lessee’s business
and/or use or occupancy of the Premises.
“Lease
Year” shall
mean calendar year. If this Lease commences or terminates on a day
other than the first or last day of a calendar year, the amount of
additional rental payable by Lessee applicable to the Lease Year in
which such commencement or termination occurs shall be prorated on
the basis of a 365-day year.
7. Intentionally
Omitted.
8. Intentionally
Omitted.
9. Quiet Enjoyment.
Lessor covenants and agrees that so
long as Lessee remains in full compliance with all of
Lessee’s obligations under this Lease, Lessee shall lawfully
and quietly hold, occupy, and enjoy the Premises during the term of
this Lease, subject to the other terms and provisions of this Lease
and subject to all mortgages and other underlying matters of record
to which this Lease is or may become subject and subordinate.
Lessor represents and warrants to Lessee that Lessor is the sole
owner in fee simple of the Building.
10. Construction; Acceptance of
Premises.
(a) Lessor agrees that it will, at
its cost, pursue to completion the Premises to the extent specified
in Exhibit C as “Lessor’s Work.”
All of Lessor’s Work shall be performed promptly and
diligently, in a good and workmanlike manner and in such a manner
to cause as little disruption as possible to Lessee’s
continued business operations in the Current Second Floor
Space.
(b) Lessor agrees that it will, at
Lessor’s cost, complete the interior tenant improvements for
the Current Second Floor Space, the New Second Floor Space, the New
First Floor Space and the Space Pocket in accordance with Exhibit C
consisting of the space plan and construction drawings prepared by
JPC Architects dated January 17, 2002, submitted for permit on
March 8, 2002, and revised on March 11, 2002, and March 13, 2002,
(“JPC Drawings”). Included in Lessor’s Work is
space planning, all drawings, permitting costs, Lessor management
fees, Lessor administrative fees, and any other fees associated
with completing the Lessor’s Work described on the JPC
Drawings. Lessor shall use its best efforts to cause the
Lessor’s Work in the Current Second Floor Space, the New
Second Floor Space and the New First Floor Space to be
substantially completed and Ready for Occupancy (as defined in
Section 40(a)) as follows: The New First Floor Space shall be
substantially completed (except for the demolition of the door
opening from the Lobby to the Corridor which will be completed
within fifteen business days of issuance of a building permit from
the City of Bellevue) and Ready for Occupancy on or before April 1,
2002. The Current Second Floor Space, except for the Large Training
Room and Office #2094, shall be substantially completed and Ready
for Occupancy within fifteen (15) business days from the date of
issuance of a building permit
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from the City of Bellevue (projected to be April
10, 2002, making May 1, 2002 the anticipated substantially
completed and Ready for Occupancy date). The New Second Floor Space
shall be substantially completed and Ready for Occupancy within
fifteen (15) business days from the date of issuance of a building
permit from the City of Bellevue (projected to be April 10, 2002,
making May 1, 2002 the anticipated substantially completed and
Ready for Occupancy date). The Large Training Room and Office #2094
shall be substantially completed and Ready for Occupancy within
thirty (30) days from the date Lessee notifies Lessor that Lessee
is ready for Lessor to begin that work, such notification date
being no sooner than May 1, 2002 and no later than June 15, 2002.
If Lessor does not timely complete Lessor’s Work in the
Current Second Floor Space, except for the Large Training Room and
Office #2094, and the New Second Floor Space within thirty (30)
business days from the date of issuance of a building permit from
the City of Bellevue, but in any event no later than June 15, 2002,
then Lessee shall be entitled to one day of free Rental with
respect to the Current Second Floor Space for every day of delay in
completion beyond such date. If Lessor does not so complete
Lessor’s Work in the New First Floor Space by April 15, 2002,
then Lessee shall be entitled to one day of free Rental with
respect to the Current Second Floor Space for every day of delay in
completion beyond such date. If Lessor does not so complete
Lessor’s Work on the Large Training Room and Office #2094
within forty-five (45) days from the date of notification by Lessee
to Lessor to begin such work, then Lessee shall be entitled to one
day of free Rental with respect to all space then occupied by
Lessee at the end of such 45 day period for every day of delay in
completion beyond such date. Notwithstanding the foregoing, there
shall be no free Rental for days of delay caused solely by the
actions or inactions of Lessee.
(c) Lessor’s Work for the New
Second Floor Space and the Space Pocket shall be done concurrently
with Lessor’s Work in the remainder of the Premises, and the
target date for completion and commencement of Rental on the New
Second Floor Space and the Space Pocket is further described in
Sections 40(a) and (b).
(d) Lessor shall within 30 days
after receipt of notice thereof correct any punchlist items or
construction defects noted by Lessee within the 30 days after
Lessor substantially completes Lessor’s Work, and any latent
defects or deficiencies discovered by Lessee within the first 60
days of business in the Premises (or portions thereof not
previously occupied by Lessee) after the Commencement Date. Subject
to the foregoing items and Sections 10(a) and (b) above, the taking
of possession of the Premises by Lessee shall constitute
acknowledgment by Lessee that the Lessor’s Work has been
fully performed as agreed, that the Premises were then in good and
tenantable condition and as represented by Lessor, and that Lessor
has fully complied with all of Lessor’s obligations regarding
the condition of the Premises. Lessor shall obtain from the
Building contractor and tenant improvement contractor a one-year
warranty against construction defects with respect to
Lessor’s Work, and Lessor shall enforce such warranty and
cause the applicable contractor to correct all warrantied
defects.
See also Sections 40(a) and (b).
11. Utilities and Other Services
by Lessor. Lessor agrees
that there will be available at the Premises the following
utilities and services:
(a) Electricity suitable for
standard tenant lighting and business machinery, including word
processors, personal computers, copying and printing machines and
telecommunications equipment.
(b) Water for kitchen, drinking,
restroom and office cleaning purposes.
(c) Heating, air conditioning, and
ventilation required in Lessor’s reasonable judgment for
normal business operations during ordinary business hours (7:00
a.m. to 6:00 p.m.) daily, including Saturdays from 8:00 a.m. until
12:00 noon, exclusive of Sundays and holidays. The HVAC system was
designed to comply with the Washington State Energy Code and shall
be programmed to attempt to maintain the Premises at a temperature
between 68° and 72° throughout the year. See also
Sections 40(g) and (1).
(d) Janitorial services on a
five-day per week schedule. The contract with the provider of the
janitorial services shall contain the provider’s agreement
that the janitorial services shall be in accordance with the
cleaning specifications attached as Exhibit D. If Lessee is
dissatisfied with janitorial services, Lessee may cancel
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Lessor’s obligation to provide janitorial
services to the Premises, upon at least thirty (30) days’
prior written notice to Lessor (effective on the first day of a
calendar month). Lessee may thereafter contract directly with a
janitorial company of Lessee’s choice for the provision of
janitorial services to the Premises, at Lessee’s sole
expense. During such time that Lessor is not obligated to provide
janitorial services to the Premises, Lessee shall receive a credit
against the Rental due in an amount equal to the prorata amount
that Lessor would have paid for the janitorial services for the
Premises.
(e) Wiring (but not services) for
telephone and T-l data cable to the communications
closet.
Lessor does not warrant the adequacy
of utilities for Lessee’s needs or that any of the utilities
and services will be free from interruption. Interruption of
utilities or services shall not be deemed an eviction or excuse
performance of any of Lessee’s obligations under this Lease
or, unless such interruption is due to Landlord’s negligence
or willful misconduct, render Lessor liable for damages
12. Maintenance by
Lessor. Lessor shall
maintain in good condition (normal wear and tear excepted) the
structural and exterior components of the Building, the common
areas and parking areas, and the Building electrical, plumbing and
heating, ventilation and air conditioning systems in a manner
comparable to other first class office buildings in downtown
Bellevue (subject to such items constituting Operating Expenses
pursuant to Section 6). Lessor shall repair and replace, when
necessary, light fixtures in the common areas only (including
replacement of light bulbs and fluorescent tubes) and shall
maintain in good condition and repair the plumbing and the
electrical system. However, Lessor shall not be obligated to repair
or replace any fixtures or equipment installed by Lessee and Lessor
shall not be obligated to make any repair or replacement occasioned
by any act or omission of Lessee, its employees, agents, invitees,
or licensees. Lessor agrees that the showered restrooms on the
first floor shall remain common area throughout the term of this
Lease.
13. Alterations, Repairs, and
Maintenance by Lessee. Subsequent to the initial occupancy of the
Premises by Lessee, Lessee shall make no changes, improvements, or
alterations to the Premises without the prior consent of Lessor,
which consent shall not be unreasonably withheld, delayed or
conditioned (and if Lessor does not respond to a request for
consent within five (5) business days, Lessor shall be deemed to
have granted consent). All such changes, improvements, and
alterations and repairs, if any, made by Lessee shall remain on the
Premises and shall become the property of Lessor upon the
expiration or sooner termination of this Lease, or, at
Lessor’s option (if such option is exercised at the time
Lessee requests Lessor’s consent to the alterations), shall
be removed from the Premises by Lessee upon expiration or sooner
termination of this Lease in which event all damage to the Building
occasioned by the removal thereof shall be repaired by Lessee at
Lessee’s sole expense. All work shall be in conformance with
all applicable laws, rules and regulations, and Lessee shall be
solely responsible for obtaining and complying with all applicable
governmental permits. Further, Lessor may require, at
Lessor’s sole option, that Lessee use specific contractors
for work on building systems, provided that any premium above
market rates charged by such contractors shall be paid for by
Lessor. Notwithstanding the foregoing, Lessee shall not penetrate
the roof without Lessor approval. Any roof penetration shall be
made only by Lessor’s approved contractors. Lessee shall
provide Lessor with final copies of all plans reflecting any
alterations. Any structural alteration requested by Lessee shall be
presented to Lessor for approval in written form, with proposed
detailed plans. Lessor shall be entitled to reimbursement by Lessee
of Lessor’s out-of pocket expenses incurred in reviewing any
structural alteration requested by Lessee, but Lessor will not
impose a fee for review or approval of alterations. If Lessor gives
its consent, the consent shall be deemed conditioned upon Lessee
acquiring all necessary permits to do the work from appropriate
governmental agencies, the furnishing of a copy thereof to Lessor
prior to the commencement of the work and compliance by Lessee with
all conditions of said permits in a prompt and expeditious
manner.
Lessee shall keep the Premises in a
neat, clean, and sanitary condition, and shall keep the Premises
and all items therein installed by Lessee in good condition, except
only for reasonable wear and tear, casualty and condemnation. All
maintenance of the Premises shall be conducted by Lessee, except as
provided in Sections 11 and 12.
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14. Taxes.
Subject to Section 6, Lessor shall
pay, before the same become delinquent, all taxes and special
assessments levied against the Building. Lessee shall pay, before
the same become delinquent, all taxes assessed against
Lessee’s furniture, fixtures, equipment, and other property
in the Premises.
Lessee shall pay to Lessor as
additional rental, within 10 days after notice of the amount
thereof, any tax upon rent payable under this Lease or any tax or
fee in any form payable by Lessor because of or measured by
receipts or income of Lessor derived from this Lease. The preceding
sentence shall not apply to general income tax or business and
occupation tax of Lessor, or any other tax measured by gross or net
income.
15. Signs.
Lessee will not cause or permit the
display of any sign, notice, or advertising matter in or about the
Premises or the Building without Lessor’s prior written
consent, which consent shall not be unreasonably withheld,
conditioned or delayed (this does not apply to the initial tenant
improvements made pursuant to Section 10).
16. Lessor’s Access to
Premises. Lessor may, on
at least 24 hours’ advance notice (except in an emergency),
inspect the Premises at all reasonable times during normal business
hours and enter the same for the purpose of cleaning, repairing,
altering, improving, or exhibiting the same, but nothing herein
shall be construed as imposing any additional obligation on Lessor
to perform any such work not otherwise set forth in this Lease.
Lessor’s rights hereunder shall be exercised in a reasonable
manner and designed to minimize disruption to Lessee’s
business, and Lessor shall, if requested by Lessee, comply with any
reasonable requirements of Lessee in order to insure that access to
the Premises will be conducted only in the presence of an employee
or other designated representative of Lessee when access is desired
to the computer server room or other mission-critical operations
areas.
17. Liability
Insurance. Lessee shall,
at Lessee’s sole expense, maintain commercial general
liability and property damage insurance insuring against any and
all claims for injury to or death of persons and loss of or damage
to property occurring upon, in, or outside of the Premises. Such
insurance shall have liability limits of not less than $2,000,000
in respect of injury or death to any one person, not less than
$2,000,000 in respect of any and one occurrence or accident, and
not less than $1,000,000 for property damage with a maximum
deductible amount of $10,000. All such insurance shall name Lessor
as an additional insureds, with severability of interests
endorsement. Lessee may provide the insurance coverage required
hereunder through a combination of Lessee’s general
commercial liability coverage and umbrella coverage. All such
insurance shall be issued by carriers reasonably acceptable to
Lessor and shall contain provision whereby the carrier agrees not
to cancel the insurance without fifteen (15) days’ prior
written notice to Lessor. Lessor shall maintain a comparable policy
of general commercial liability coverage insuring against any and
all claims for injury to or death of persons and loss or damage to
property occurring on the property outside the Premises, with the
cost thereof being an Operating Expense.
On or before taking possession of
the Premises pursuant to this Lease, Lessee shall furnish Lessor
with a certificate evidencing the aforesaid insurance coverage, and
renewal certificates shall be furnished to Lessor at least 30 days
prior to the expiration date of each policy for which a certificate
was theretofore furnished.
18. Lessee’s Property
Insurance. Lessee shall,
at Lessee’s sole expense, maintain on all of Lessee’s
personal property, fixtures and leasehold improvements on the
Premises, a policy of “all risk” hazard insurance in
the amount of their replacement value. All proceeds of such
insurance shall belong to Lessee.
19. Lessor’s Property
Insurance. Subject to
Section 6, Lessor shall maintain on the Building a policy of
“all risk” hazard insurance in the full amount of its
replacement value. All proceeds of any such insurance shall be
payable to Lessor and shall be applied to the restoration of the
Building to the extent provided in Section 21; any proceeds of such
insurance remaining after such restoration shall belong to
Lessor.
20. Assignment and
Subletting. Neither this
Lease nor any right hereunder may be assigned, transferred,
encumbered, or sublet in whole or in part by Lessee, by operation
of law or otherwise, without Lessor’s prior consent, which
consent shall not be unreasonably withheld, delayed or conditioned.
If Lessee is an entity of any kind, the transfer or pledge of 51%
or more (aggregated over the life of this Lease) of the ownership
and/or
7
voting interests in Lessee shall be deemed an
assignment within the meaning of this Section; provided, however,
that the foregoing restriction on transfer or pledge shall not
apply to Lessee in connection with or as a result of an initial
public offering of its stock and shall not apply if and for so long
as Lessee is a publicly-traded company. Notwithstanding the
foregoing, Lessee shall have the right without Landlord’s
consent to assign or sublease this Lease to an affiliate which is
under common control with Lessee or to any person or entity
succeeding to the Lessee’s business conducted at the
Premises. A portion of the Premises may without Landlord’s
consent be used or occupied by a party or parties in connection
with the transaction of business with Lessee or an entity that
controls, is controlled by, or is under common control with Lessee.
No assignment or sublease shall relieve Lessee of its liabilities
hereunder and no consent to any assignment or sublease shall be
deemed a consent to any further assignment or sublease. If Lessee
requests Lessor’s consent, Lessee shall reimburse Lessor for
its reasonable legal and administrative costs incurred in
connection with such request up to a maximum of One Thousand
Dollars ($ 1,000.00). Lessor may assign its interest in this Lease.
See also Section 40(i).
21. Damage or
Destruction. If the
Premises are damaged or destroyed by fire or any cause, Lessor
shall restore the Premises (except for trade fixtures, and personal
property which shall be restored by Lessee at Lessee’s sole
expense) as nearly as practicable to their condition immediately
prior to such damage or destruction. The obligations to restore
provided in this paragraph shall be subject to Lessor’s
termination rights provided below. Any restoration shall be
promptly commenced and diligently prosecuted. Lessor shall not be
liable for any consequential damages by reason of any such damage
or destruction.
Notwithstanding any of the foregoing
provisions of this section, in the event the Premises shall be
destroyed or damaged to such an extent that Lessor deems that it is
not economically feasible to restore the same, then Lessor may
terminate this Lease as of the date of the damage or destruction by
giving Lessee notice to that effect within sixty (60) days of such
damage; provided, however, that Lessor may not terminate this Lease
unless it also terminates the leases of all tenants in the Building
who are affected by the damage.
In the event that more than 25% of
the Premises are damaged during the Lease Term, and either party
reasonably estimates that it will take more than nine months to
repair and restore the Premises to their condition prior to such
damage, such party shall have the right to terminate this Lease
upon written notice to the other within 60 days of such damage,
with such termination becoming effective as of the date thirty (30)
days after the date of delivery of such notice. During the period
commencing on the date of the damage and terminating on the
termination date as determined by the foregoing notice, the rent
shall be abated in the same proportion as the untenantable portion
of the Premises bears to the whole thereof, except that there shall
be no abatement to the extent that any such damage or destruction
is caused solely by the negligence of Lessee, its employees,
agents, invitees, or licensees (except to the extent such rent loss
is covered by the proceeds of insurance, the cost of which was
included in Operating Expenses.)
If Lessor undertakes to restore the
Premises as provided above in this section, then commencing with
the date of the damage or destruction and continuing through the
period of restoration, the rent for the Premises shall be abated
for such period in the same proportion as the untenantable portion
of the Premises bears to the whole thereof, except that there shall
be no abatement to the extent that any such damage or destruction
is caused by negligence or intentional acts of Lessee, its
employees, agents, invitees, or licensees (except to the extent
such rent loss is covered by the proceeds of insurance, the cost of
which was included in Operating Expenses).
22. Liens.
Lessee shall have no authority to
allow any liens to be filed against the Property. Lessee shall not
suffer or permit any lien to be filed against the Building or any
part thereof or the Lessee’s leasehold interest, by reason of
work, labor, services, or materials performed or supplied to Lessee
or anyone holding the Premises or any part thereof under Lessee. If
any such lien is filed against the Building or Lessee’s
leasehold interest, Lessee shall cause the same to be discharged of
record within 30 days after the date of filing the same. Lessee may
contest any lien in accordance with law.
23. Indemnity by
Lessee. Lessee agrees
that Lessor shall not be liable for any claims for death of or
injury to persons or damages to or destruction of property
sustained by Lessee or by any other person in or outside of the
Premises, including witho