Exhibit 10.18
OFFICE
LEASE
520 PIKE TOWER
WITH
EQUATOR TECHNOLOGIES,
INC.
SUITE: 900
DATED: April 12,
2001
Table Of Contents
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OFFICE LEASE
THIS OFFICE LEASE
(“Lease”) is made and entered into as of the 12
th day of April, 2001, by and between PIKE STREET
DELAWARE, INC. (“Landlord”), a Delaware corporation,
and EQUATOR TECHNOLOGIES, INC. (“Tenant”), a California
corporation.
WITNESSETH:
ARTICLE 1: BASIC PROVISIONS
This Article contains the basic
lease provisions between Landlord and Tenant.
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A. Building:
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520 Pike Tower, located at 520 Pike
Street, Seattle, Washington (the “Property”, as further
described in Article 32 and Exhibit A-1).
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B. Premises:
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Suite 900 in the Building as
outlined or cross-hatched on Exhibit A-2.
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C. Commencement
Date:
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October 1, 2001 subject to
Article 3.
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D. Expiration
Date:
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September 30, 2006 subject to
Article 3.
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E. Rentable Area:
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The rentable area of the Premises
shall be deemed 16,500 square feet, and the rentable area of the
Property shall be deemed 362,690 square feet, for purposes of this
Lease, subject to Article 32.
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F. Tenant’s
Share:
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Four point five five percent
(4.55%), subject to Articles 4 and 32.
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G. Base Rent:
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$48,125.00 per month from the
Commencement Date through September 30, 2002, and
$49,500.00 per month from October 1, 2002 through
September 30, 2003, and
$50,875.00 per month from October 1, 2003 through
September 30, 2004, and
$52,250.00 per month from October 1, 2004 through
September 30, 2005, and
$53,625.00 per month thereafter through the Expiration Date, as
further described in Article 4.
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H. Additional
Rent:
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Tenant shall pay Tenant’s
Share of Taxes and Expenses in excess of the amounts respectively
for the years 2001 (“Base Tax Year”) and 2001
(“Base Expense Year”), as further described in
Article 4.
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I. Permitted Use:
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Executive and administrative
offices, subject to Article 7.
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J. Security
Deposit:
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$59,000.00, which shall be subject
to Article 16.
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PRIOR LEASE BETWEEN THE
PARTIES: Landlord, as successor in interest to
Sixth & Pike Associates, L.P., and Tenant are parties to a
lease for the Premises dated September 13, 1996 which lease
was modified by the Lease Termination Agreement between the parties
dated July 17, 2000 (the “Prior Lease”). Upon the
Commencement Date herein, this Lease shall supercede the Prior
Lease and provided Tenant is not in default under the Prior Lease,
the security deposit shall be applied toward the Security Deposit
required herein.
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K. Broker (if
any):
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Washington Partners, Inc. who
shall be paid by Landlord, subject to Article 26.
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L. Guarantor(s):
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N/A
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M.
Riders/Exhibits:
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In addition to Exhibit A-1
(Property), Exhibit A-2 (Premises) and Rider One (Rules), this
Lease includes: Work Agreement and Parking Agreement.
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N. Landlord’s Notice
Address (subject to Article 25):
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c/o Tower Realty Management
Corporation
520 Pike Street - Office of the Building
Seattle, Washington 98101
Attention: Property Manager
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with copy to:
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c/o Tower Realty Management
Corporation
255 Shoreline Drive, Suite 600
Redwood City, California 94065
Attention: Asset Manager
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O. Tenant’s Notice Address
(subject to Article 25):
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Equator Technologies, Inc.
520 Pike Street, Suite 900
Seattle, Washington 98101
Attention: Office Manager
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and with a copy to:
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Equator Technologies, Inc.
1300 Whit Oaks Road
Campbell, CA 95008
Attention: Facilities/Human Resources Director
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P. Rent Payments:
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Rent shall be paid to “Pike
Street Delaware, Inc.” at 75 Remittance Drive,
Suite 1118, Chicago, Illinois 60675-1118 or such other parties
and addresses as to which Landlord shall provide advance
notice.
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The foregoing provisions shall be
interpreted and applied in accordance with the other provisions of
this Lease. The terms of this Article, and the terms defined in
Article 32 and other Articles, shall have the meanings
specified therefor when used as capitalized terms in other
provisions of this Lease or related documentation (except as
expressly provided to the contrary therein).
ARTICLE 2: PREMISES
Landlord hereby leases to Tenant and
Tenant hereby leases from Landlord the Premises subject to the
provisions herein contained. Tenant has inspected the Premises (and
portions of the Property, Systems and Equipment providing access to
or serving the Premises) or has had an opportunity to do so, and
agrees to accept the same “as is” without any
agreements, representations, understandings or obligations on the
part of Landlord to perform any alterations, repairs, installations
or improvements unless expressly provided under this
Lease.
ARTICLE 3: TERM AND
COMMENCEMENT
A.
Term and Confirmation .
The term (“Term”) of this Lease shall
commence on the Commencement Date and end on the Expiration Date,
unless sooner terminated as provided herein, subject to adjustment
as provided below and the other provisions hereof. If the
Commencement Date is advanced or postponed as provided below, the
Expiration Date set forth in Article 1 shall not be changed,
unless Landlord so elects by notice to Tenant. Tenant shall execute
a confirmation of the Commencement Date and other matters in such
form as Landlord may reasonably request within ten (10) days
after requested; any failure to respond within such time shall be
deemed an acceptance of the matters as set forth in
Landlord’s confirmation. If Tenant disagrees with
Landlord’s adjustment of the Commencement Date, Tenant shall
pay Rent and perform all other obligations commencing on the date
determined by Landlord, subject to refund or credit when the matter
is resolved.
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B.
Early Commencement .
The Commencement Date, Rent and Tenant’s other
obligations shall be advanced to such earlier date as:
(i) Landlord substantially completes any improvements to the
Premises required under this Lease to an extent that Tenant is able
to occupy the Premises, and Landlord delivers possession thereof,
or (ii) Tenant, with Landlord’s written permission,
otherwise commences occupying the Premises. If either such events
occurs with respect to a portion of the Premises, the Commencement
Date, Rent and Tenant’s other obligations shall be so
advanced with respect to such portion (and fairly prorated based on
the rentable square footage involved). During any period that
Tenant shall be permitted to enter the Premises prior to the
Commencement Date other than to occupy the same (e.g., to perform
alterations or improvements), Tenant shall comply with all terms
and provisions of this Lease, except those provisions requiring the
payment of Base Rent. Landlord shall permit early entry, so long as
the Premises are legally available, Landlord has completed any work
required under this Lease, and Tenant is in compliance with the
other provisions of this Lease, including the insurance
requirements under Article 10.
C.
Commencement Delays .
The Commencement Date, Rent and Tenant’s other
obligations shall be postponed to the extent Tenant is unable to
occupy the Premises because Landlord fails: (i) to
substantially complete any improvements to the Premises required to
be performed by Landlord under this Lease, or (ii) to deliver
possession of the Premises for any other reason, including holding
over by prior occupants, except to the extent that Tenant, its
contractors, agents or employees in any way contribute to either
such failures. If either such event occurs with respect to a
portion of the Premises, the Commencement Date, Rent and
Tenant’s other obligations shall be so postponed with respect
to such portion (and fairly prorated based on the rentable square
footage involved). If Landlord so fails for a ninety (90) day
initial grace period, Tenant shall have the right to terminate this
Lease by notice within ten (10) days thereafter, subject to
Landlord’s right to cure as provided in Article 21. Any
such delay in the Commencement Date shall not subject Landlord to
liability for loss or damage resulting therefrom, and
Tenant’s sole recourse with respect thereto shall be the
postponement of Rent and other obligations and right to terminate
this Lease described herein.
ARTICLE 4: BASE RENT AND
ADDITIONAL RENT
A.
Base Rent . Tenant
shall pay Landlord the monthly Base Rent set forth in
Article 1 in advance on or before the first day of each
calendar month during the Term; provided, Tenant shall pay Base
Rent for the first full calendar month for which Base Rent shall be
due (and any initial partial month) when Tenant executes this
Lease.
B.
Taxes and Expenses .
Tenant shall pay Landlord Tenant’s Share of Taxes and
Expenses in excess of the amounts of Taxes and Expenses
respectively for the Base Tax Year and Base Expense Year in the
manner described below. The foregoing capitalized terms shall have
the meanings specified therefor in Articles 1 and 32.
C.
Payments . Tenant
shall pay such amounts as follows:
(i)
Landlord may reasonably estimate in advance the amounts Tenant
shall owe for Taxes and Expenses for any full or partial calendar
year of the Term. In such event, Tenant shall pay such estimated
amounts, on a monthly basis, on or before the first day of each
calendar month, together with Tenant’s payment of Base Rent.
Such estimate may be reasonably adjusted from time to time by
Landlord, including adjustments to reflect the final Tax bills each
year.
(ii)
Within 120 days after the end of each calendar year, or as soon
thereafter as practicable, Landlord shall provide a statement (the
“Statement”) to Tenant showing: (a) the amount of
actual Taxes and Expenses for such calendar year, with a listing of
amounts for major categories of Expenses, (b) any amount paid
by Tenant towards Taxes and Expenses during such calendar year on
an estimated basis, and (c) any revised estimate of
Tenant’s obligations for Taxes and Expenses for the current
calendar year.
(iii)
If the Statement shows that Tenant’s estimated payments were
less than Tenant’s actual obligations for Taxes and Expenses
for such year, Tenant shall pay the difference within ten
(10) days after Landlord sends the Statement.
(iv)
If the Statement shows an increase in Tenant’s estimated
payments for the current calendar year, Tenant shall: (a) pay
the difference between the new and former estimates
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for the period from January 1
of the current calendar year through the month in which the
Statement is sent within ten (10) days after Landlord sends
the Statement, and (b) thereafter pay the new estimated amount
until Landlord further revises such estimated amount.
(v)
If the Statement shows that Tenant’s estimated payments
exceeded Tenant’s actual obligations for Taxes and Expenses,
Landlord shall credit the difference against payment of Rent next
due. If the Term shall have expired and no further Rent shall be
due, Landlord shall provide a refund of such difference at the time
Landlord sends the Statement.
(vi)
Landlord reserves the right to reasonably change, from time to
time, the manner or timing of Tenant’s payments for Taxes and
Expenses. In lieu of providing one Statement covering all such
items, Landlord may provide separate statements, at the same or
different times, including separate statements for Taxes after
bills are received.
(vii)
Tenant acknowledges that Landlord’s ability to budget and
incur expenses depends on the finality of such Statement, and
accordingly agrees that time is of the essence of this Paragraph.
If Tenant takes exception to any matter contained in the Statement
as provided herein, Tenant shall notify Landlord of such exception
in writing not later than thirty (30) days following Tenant’s
receipt of such statement, and Landlord shall refer the matter to
an independent certified public accountant, whose certification as
to the proper amount shall be final and conclusive as between
Landlord and Tenant. Tenant shall promptly pay the cost of such
certification unless such certification determines that Tenant was
overbilled by more than 5%. Pending resolution of any such
exceptions in the foregoing manner, Tenant shall continue paying
Tenant’s Share of Taxes and Expenses in the amounts
determined by Landlord, subject to adjustment after any such
exceptions are so resolved. If such certification determines that
Tenant was overbilled, then Tenant shall receive a credit for the
amount of such overbilling against payments of Rent next
due.
D.
Fiscal Years and Tax Years . If Landlord now or hereafter uses
a non-calendar fiscal year: (i) all references to calendar years
herein shall refer to such fiscal years, (ii) all references to
January 1 and December 31 herein shall refer, respectively, to
the first and last days of such fiscal years as the context
requires, and (iii) if Landlord changes fiscal years, Landlord
shall make appropriate prorations such that Tenant’s
obligations hereunder are not materially adversely affected
thereby. Subject to Paragraph E below, Landlord shall include in
Taxes each year hereunder: (a) in general, the amounts levied,
assessed or imposed for such year, whether paid or payable in
another year, (b) for personal property taxes, the amounts
paid during such year, and (c) for Taxes paid in installments
over more than one year, the amounts paid each year, and any
interest thereon. If any taxing authority uses a fiscal year other
than a calendar year, Landlord may elect from time to time,
consistent with sound accounting and management practices, to
require payments by Tenant based on: (x) amounts paid or payable
during each calendar year without regard to such fiscal years, (y)
amounts paid or payable during each calendar year, averaging the
bills for each calendar year based on the number of days or months
of such calendar year included in each fiscal tax year, or (z)
amounts paid or payable for or during each fiscal tax
year.
E.
Tax Refunds, Protest Costs, and Expense Adjustments For Prior
Years .
Landlord shall each year: (i) credit against Taxes any
refunds received during such year, (ii) include in Taxes any
additional amount paid during such year, involving an adjustment to
Taxes for a prior year, due to error by the taxing authority,
supplemental assessment, or other reason, (iii) include, in
either Taxes or Expenses, any fees for attorneys, consultants and
experts, and other costs paid during such year in attempting to
protest, appeal or otherwise seek to reduce or minimize Taxes,
whether or not successful, (iv) credit against Expenses the
cost of any item previously included in Expenses, to the extent
that Landlord receives reimbursement from insurance proceeds or a
third party during such year (excluding tenant payments for Taxes
and Expenses), and (v) make any other appropriate changes to
reflect adjustments to Taxes or Expenses for prior years,
regardless of whether Landlord uses an accrual system of accounting
for other purposes.
F.
Grossing Up .
If the Property is not at least 95% occupied during all or a
portion of any calendar year, Landlord may, in accordance with
sound accounting and management practices, determine the amount of
variable Taxes and Expenses (i.e. those items which vary according
to occupancy levels) that would have been paid had the Property
been at least 95% occupied, and the amount so determined shall be
deemed to have been the amount of Taxes and Expenses for such year.
If Landlord is not furnishing any particular utility or service
(the cost of which, if performed by Landlord, would be included in
Expenses) to a tenant during any period, Landlord may for such
period: (i) adjust Expenses to reflect the additional amount
that would reasonably have been incurred during such period had
Landlord furnished such utility or service to
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such tenant, or (ii) exclude
the rentable area of such tenant from the rentable area of the
Property in computing Tenant’s Share of the component of
Expenses for such utility or service.
G.
Tenant’s Share Adjustments . If the Property or any development
of which it is a part, shall contain non-office uses during any
period, Landlord shall have the right to determine, in accordance
with sound accounting and management practices, Tenant’s
Share of Taxes and Expenses for only the office portion of the
Property or of such development; in such event, Tenant’s
Share shall be based on the ratio of the rentable area of the
Premises to the rentable area of such office portion for such
period. Tenant’s Share shall be subject to such other
adjustments for such periods as may be applicable pursuant to
Paragraph E, above, and pursuant to the definition of
Tenant’s Share in Article 32.
H.
Prorations .
If the Term commences on a day other than the first day of a
calendar month or ends on a day other than the last day of a
calendar month, the Base Rent and any other amounts payable on a
monthly basis shall be prorated on a per diem basis for such
partial calendar months. If the Base Rent is scheduled to increase
under Article 1 other than on the first day of a calendar
month, the amount for such month shall be prorated on a per diem
basis to reflect the number of days of such month at the then
current and increased rates, respectively. If the Term commences
other than on January 1, or ends other than on
December 31, Tenant’s obligations to pay amounts towards
Taxes and Expenses for such first or final calendar years shall be
prorated on a per diem basis to reflect the portion of such years
included in the Term.
I.
Payments After Lease Term Ends . Tenant’s obligations to pay
Taxes and Expenses (or any other amounts) accruing during, or
relating to, the period prior to expiration or earlier termination
of this Lease, shall survive such expiration or termination.
Landlord may reasonably estimate all or any of such obligations
within a reasonable time before, or anytime after, such expiration
or termination. Tenant shall pay the full amount of such estimate,
and any additional amount due after the actual amounts are
determined, in each case within ten (10) days after Landlord
sends a statement therefor. If the actual amount is less than the
amount Tenant pays as an estimate, Landlord shall refund the
difference within thirty (30) days after such determination is
made.
J.
Landlord’s Accounting Practices and Records
. Landlord shall
maintain records respecting Taxes and Expenses and determine the
same in accordance with sound accounting and management practices.
Subject to the other provisions of this Article, Landlord may from
time to time use a full accrual system of accounting, or a modified
cash basis of accounting with appropriate accrual adjustments to
ensure that each year includes substantially the same major
recurring items. Unless Tenant takes exception by notice to
Landlord within thirty (30) days after Landlord provides any
Statement to Tenant, such Statement shall be considered final and
binding on Tenant (except as to additional Expenses or Taxes not
then known or omitted by error). If Tenant takes exception by
notice within such time, Landlord may seek certification from
Landlord’s independent certified public accountant as to the
proper amount of Taxes and Expenses. In such case: (i) such
certification shall be considered final and binding on both parties
(except as to additional Expenses or Taxes not then known or
omitted by error), and (ii) Tenant shall pay Landlord for the
cost of such certification, unless it shows that Taxes and Expenses
were overstated by at least five (5) percent. Pending
resolution of any such exceptions, Tenant shall pay Tenant’s
Share of Taxes and Expenses in the amounts shown on such Statement,
subject to credit, refund or additional payment after any such
exceptions are resolved.
K.
Base Year Adjustments . If Taxes for the Base Tax Year are
reduced as the result of protest, or by means of agreement, or as
the result of legal proceedings or otherwise, Landlord shall adjust
Tenant’s obligations for Taxes in all years following the
Base Tax Year, and Tenant shall pay Landlord within 30 days after
notice any additional amount required by such adjustment for any
such years or portions thereof that have theretofore occurred.
Landlord shall exclude from Base Year Expenses any non-recurring
items, including capital expenditures otherwise permitted under
Article 32 of the Lease (and shall only include the
amortization of such expenditures in subsequent year Expenses to
the extent permitted under Article 32, including any remaining
amortization of permitted capital expenditures made prior to or
after the Commencement Date). If Landlord eliminates from any
subsequent year Expenses a recurring category of expenses
previously included in Base Year Expenses, Landlord shall subtract
such category from Base Year Expenses commencing with such
subsequent year.
L.
General Payment Matters .
Base Rent, Taxes, Expenses and any other amounts which
Tenant is or becomes obligated to pay Landlord under this Lease or
other agreement entered in connection herewith, are sometimes
herein referred to collectively as “Rent,” and all
remedies applicable to the non-payment of rent shall be applicable
thereto. Rent shall be paid in good funds and legal tender of the
United States of America. Tenant shall pay Rent without
any
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deduction, recoupment, set-off or
counterclaim, and without relief from any valuation or appraisement
laws. Rent obligations hereunder are independent covenants.
Provided that Landlord shall provide such statement within seven
(7) months of the expiration of this Lease, no delay by
Landlord in providing the Statement (or separate statements) shall
be deemed a default by Landlord or a waiver of Landlord’s
right to require payment of Tenant’s obligations for actual
or estimated Taxes or Expenses. In no event shall a decrease in
Taxes or Expenses ever decrease the monthly Base Rent or give rise
to a credit in favor of Tenant. Landlord may apply payments
received from Tenant to any obligations of Tenant then accrued,
without regard to such obligations as may be designated by
Tenant.
ARTICLE 5: QUIET ENJOYMENT
Landlord agrees that if Tenant
timely pays the Rent and performs the terms and provisions
hereunder, Tenant shall hold the Premises during the Term, free of
lawful claims by any party acting by or through Landlord, subject
to all other terms and provisions of this Lease.
ARTICLE 6: UTILITIES AND
SERVICES
A.
Standard Landlord Utilities and Services . Landlord shall provide the
following utilities and services (the cost of which shall be
included in Expenses, except as provided below):
(i)
Heat and air-conditioning to provide a temperature required, In
Landlord’s reasonable opinion, for occupancy of the Premises
as offices, from 8:00 a.m. until 6:00 p.m. Monday through
Friday, excluding all Holidays.
(ii)
Water from city mains for drinking, lavatory and toilet purposes
only, at those points of supply provided for nonexclusive general
use of tenants at the Property, or points of supply in the Premises
installed by or with Landlord’s written consent for such
purposes.
(iii)
Cleaning and trash removal service in and about the Premises as is
customary for office space in office buildings.
(iv)
Passenger elevator service at all times (subject to changes in the
number of elevators in service after hours or at other times), and
freight elevator service (subject to scheduling by Landlord and
such standard charges as Landlord may impose), in common with
Landlord and other parties.
(v)
Electricity for building-standard overhead office lighting
fixtures, and equipment and accessories customary for offices (up
to 280 hours per month), where: (a) the connected electrical
load of all of the same does not exceed an average of 4 watts per
usable square foot of the Premises (or such lesser amount as may be
available, based on the safe and lawful capacity of the electrical
circuit(s) and facilities serving the Premises), (b) the
electricity is at nominal 120 volts, single phase (or 110 volts,
depending on available service in the Building), and (c) the
Systems and Equipment are suitable, the safe and lawful capacity
thereof is not exceeded, and sufficient capacity remains at all
times for other existing and future tenants, as determined in
Landlord’s reasonable discretion.
B.
Additional Utilities and Services . Landlord shall not be responsible
for inadequate air-conditioning or ventilation whenever the use or
occupancy of the Premises exceeds the normal capacity or design
loads of, affects the temperature or humidity otherwise maintained
by, or otherwise adversely affects the operation of, the Systems
and Equipment for the Property, whether due to items of equipment
or machinery generating heat, above normal concentrations of
personnel or equipment, alterations to the Premises made by or
through Tenant without balancing the air or installing supplemental
HVAC equipment. Without limiting the generality of the foregoing,
Landlord shall not be responsible for inadequate air conditioning
or ventilation to the extent that the same occurs because Tenant,
without providing adequate air conditioning and ventilation: (i)
uses or permits the use of any item, or concentrated group, of
equipment consuming more than 500 watts in the aggregate at rated
capacity, or (ii) occupies or permits the Premises to be
occupied with concentrations of personnel greater than one person
per 200 usable square feet. In any such case, Landlord may elect to
balance the air, install, operate, maintain and replace such
supplemental HVAC equipment during the Term, at Tenant’s
expense, as an extra utility or service (or require that Tenant
arrange for the same as Work under Article 9). Landlord shall
seek to provide such extra utilities or services as Tenant may from
time to time request, if the same are reasonable and feasible for
Landlord to provide and do not involve modifications or additions
to the Property or existing Systems and Equipment, and if
Landlord
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shall receive Tenant’s request
within a reasonable period prior to the time such extra utilities
or services are required. Tenant shall pay, for any extra utilities
or services, such standard charges as Landlord shall from time to
time establish, Landlord’s out-of-pocket costs for
architects, engineers, consultants and other parties relating to
such extra utilities or services, and a fee equal to fifteen
percent (15%) of such costs. All payments for such extra utilities
or services shall be due at the same time as the installment of
Base Rent with which the same are billed, or if billed separately,
shall be due within ten (10) days after such billing.
Notwithstanding the foregoing to the contrary, in lieu of charging
separately for additional utilities and services, Landlord may
reasonably elect from time to time to expand or modify the amounts
of services and utilities available without separate charge, in
which case the costs thereof shall be included in
Expenses.
C.
Monitoring .
Landlord may install and operate meters, submeters or
any other reasonable system for monitoring or estimating any
services or utilities used by Tenant in excess of those required to
be provided by Landlord under this Article (including a system
for Landlord’s engineer to reasonably estimate any such
excess usage). If such system indicates such excess services or
utilities, Tenant shall pay Landlord’s charges and fees as
described in Paragraph B, above, for installing and operating such
system and any supplementary air-conditioning, ventilation, heat,
electrical or other systems or equipment (or adjustments or
modifications to the existing Systems and Equipment) which Landlord
may make, and Landlord’s charges for such amount of excess
services or utilities used by Tenant.
D.
Interruptions and Changes . Landlord shall have no liability
for interruptions, variations, shortages, failures, changes in
quality, quantity, character or availability of any utilities or
services caused by repairs, maintenance, replacements, alterations
(including any freon retrofit work), labor controversies,
accidents, inability to obtain services, utilities or supplies,
governmental or utility company acts or omissions, requirements,
guidelines or requests, or other causes beyond Landlord’s
reasonable control (or under any circumstances with respect to
utilities or services not required to be provided by Landlord
hereunder). Under no circumstances whatsoever shall any of the
foregoing be deemed an eviction or disturbance of Tenant’s
use and possession of the Premises or any part thereof, serve to
abate Rent, or relieve Tenant from performance of Tenant’s
obligations under this Lease. Landlord in no event shall be liable
for damages by reason of loss of profits, business interruption or
other consequential damages in connection with the foregoing
events. Nevertheless, in any such events after receiving notice,
Landlord shall use reasonable efforts to restore such utilities or
services required to be provided hereunder to reasonable
levels.
ARTICLE 7: USE, COMPLIANCE
WITH LAWS, AND RULES
A.
Use of Premises .
Tenant shall use the Premises only for the permitted use
identified in Article 1, and no other purpose whatsoever,
subject to the other provisions hereof and of this Lease.
Notwithstanding anything to the contrary contained in this Lease,
Tenant shall not use or permit the Premises to be used as a:
(i) political party or social-welfare office,
(ii) medical, dental, psychology or science office or
laboratory, including for treatment, research, testing or
counseling, (iii) multi-party “executive” or
“legal” suite type offices, (iv) data processing,
telecommunications or telemarketing center, (v) school, educational
or training facility, (vi) employment, placement, recruiting
or clerical support agency, (vii) computerized vehicle sales, loan
or “finder” service, (viii) governmental or
quasi-governmental office, whether local, state, federal or
foreign, including diplomatic and consulate, (ix) travel agency or
reservation center, (x) radio or television studio or broadcasting
or recording facility, or (xi) retail real estate brokerage, retail
stock brokerage, retail bank or other retail financial institution,
loan office, depository, check-cashing or wire-transferring
service.
B.
Laws and Other Requirements . Tenant shall not use or permit
within the Premises anything that will: (i) violate the
requirements of Landlord’s insurers, the American Insurance
Association, or any board of underwriters, (ii) cause a
cancellation of Landlord’s policies, impair the insurability
of the Property, or increase Landlord’s premiums (any such
increase shall be paid by Tenant without such payment being deemed
permission to continue such activity or a waiver of any other
remedies of Landlord), or (iii) violate the reasonable
requirements of any Lenders, the certificates of occupancy issued
for the Premises or the Property, or any other requirements,
covenants, conditions or restrictions affecting the Property at any
time. Tenant shall comply with all Laws relating to the Premises
and Tenant’s use of the Premises and Property, including Laws
governing Hazardous Materials as described in Article 30, and
the Disabilities Acts as described in Article 31.
Tenant’s obligations to comply with Laws shall include,
without limitation: (a) obtaining all permits, licenses,
certificates and approvals to conduct its business in the Premises,
or any necessary waivers or variances, without thereby subjecting
Landlord, the Property or other occupants to any costs,
requirements, liabilities or restrictions, (b) any work
to
7
or for the Premises (or any systems
or equipment exclusively serving the Premises, including any freon
retrofitting work for such exclusive systems and equipment)
required by Laws, and (c) any work outside the Premises (if
Landlord permits such work) required by Laws based on
Tenant’s use of, work within, or systems or equipment
exclusively serving, the Premises, whether any such work is deemed
structural, involves a capital expenditure or results in a benefit
extending beyond the Term. Any work hereunder shall be deemed
“Work” subject to Article 9.
C.
Rules .
Tenant shall comply with the Rules set forth in Rider
One attached hereto (the “Rules”). Landlord shall have
the right, by notice to Tenant or by posting at the Property, to
reasonably amend such Rules and supplement the same with other
reasonable Rules relating to the Property, or the promotion of
safety, care, efficiency, cleanliness or good order therein.
Nothing herein shall be construed to give Tenant or any other
Person any claim, demand or cause of action against Landlord
arising out of the violation of such Rules by any other tenant
or visitor of the Property, or out of the enforcement, modification
or waiver of the Rules by Landlord in any particular
instance.
ARTICLE 8: MA INTENANCE AND REPAIRS
Except for customary cleaning and
trash removal provided by Landlord under Article 6, and
casualty damage to be repaired by Landlord under Article 11,
Tenant shall keep and maintain (or cause to be kept and maintained)
the Premises in good and sanitary condition, working order and
repair, in compliance with all applicable Laws as described in
Article 7, and as required under other provisions of this
Lease, including the Rules (including any carpet and other
flooring material, paint and wall-coverings, doors, windows,
ceilings, interior surfaces of walls, lighting (including lamps,
bulbs, ballasts and starters), plumbing and other fixtures,
alterations, improvements, systems and equipment in or exclusively
serving the Premises whether installed by Landlord or Tenant). In
the event that any repairs, maintenance or replacements are
required, Tenant shall promptly notify Landlord and arrange for the
same either: (i) through Landlord for such reasonable charges
as Landlord may establish from time to time, payable within ten
(10) days after billed, or (ii) at Landlord’s
option, by engaging such contractors as Landlord shall first
designate or approve in writing to perform such work, all in a
first class, workmanlike manner approved by Landlord in advance in
writing and otherwise in compliance with Article 9 respecting
“Work”. Tenant shall promptly notify Landlord
concerning the necessity for any repairs or other work hereunder
and upon completion thereof. Tenant shall pay Landlord for any
repairs, maintenance and replacements to areas of the Property
outside the Premises, caused, in whole or in part, as a result of
moving any furniture, fixtures, or other property to or from the
Premises, or otherwise by Tenant or its employees, agents,
contractors, or visitors (notwithstanding anything to the contrary
contained in this Lease). Except as provided in the preceding
sentence, or for damage covered under Article 11, Landlord
shall keep the common areas of the Property in good and sanitary
condition, working order and repair (the cost of which shall be
included in Expenses).
ARTICLE 9: ALTERATIONS AND
LIENS
A.
Alterations and Approval . Tenant shall not attach any
fixtures, equipment or other items to the Premises, or paint or
make any other additions, changes, alterations or improvements to
the Premises or the Systems and Equipment serving the Premises (all
such work is referred to collectively herein as the
“Work”), without the prior written consent of Landlord.
Landlord shall not unreasonably withhold consent, except that
Landlord reserves the right to withhold consent in Landlord’s
sole discretion for Work affecting the structure, safety,
efficiency or security of the Property or Premises, the Systems and
Equipment, or the appearance of the Premises from any common or
public areas. In seeking approval, Tenant shall submit for
Landlord’s prior written approval: (i) the names, addresses
and background information concerning all architects, engineers,
contractors, subcontractors and suppliers Tenant proposes to use,
and (ii) detailed plans and specifications prepared by the approved
architects and engineers. In addition, Tenant shall provide
Landlord with notice of whether the Work will involve or affect any
Hazardous Materials, whether such materials are customary and usual
based on standard industry practices, and all other details
relating thereto.
B.
Approval Conditions . Landlord reserves the right to
impose requirements as a condition of such consent or otherwise in
connection with the Work, including requirements that Tenant:
(i) obtain and post permits, (ii) provide bonds,
additional insurance, and/or a cash deposit of the total amount
required to pay for the Work (including plans, specifications,
engineering and other lienable costs, and Landlord’s fee
described below) for Landlord to release or apply as the Work is
properly completed and lien waivers, affidavits and other
documentation satisfactory to Landlord are submitted,
(iii) submit architect, engineer, contractor, subcontractor
and supplier
8
affidavits of payment and recordable
lien waivers in compliance with the Laws of the State of
Washington, (iv) use union labor (if Landlord uses union
labor), (v permit Landlord or its representatives to inspect the
Work at reasonable times, and (vi) comply with such other
requirements as Landlord may impose concerning the manner and times
in which such Work shall be done. Landlord may require that all
Work be performed under Landlord’s supervision, and Landlord
reserves the right to designate the architects, engineers,
contractors, subcontractors and suppliers who will design and
perform all Work and supply all materials affecting the Systems and
Equipment or structure of the Property. If Landlord approves,
inspects, supervises, recommends or designates any architects,
engineers, contractors, subcontractors or suppliers, the same shall
not be deemed a warranty as to the adequacy of the design,
workmanship or quality of materials, or compliance of the Work with
the plans and specifications or any Laws.
C.
Performance of Work . All Work shall be performed:
(i) in a thoroughly first class, professional and workmanlike
manner, (ii) only with materials that are new, high quality,
and free of material defects, (iii) strictly in accordance
with plans, specifications, parties and other matters approved or
designated by Landlord in advance in writing, (iv) not to adversely
affect the Systems and Equipment or the structure of the Property,
(v) diligently to completion and so as to avoid any
disturbance, disruption or inconvenience to other tenants and the
operation of the Property, and (vi) in compliance with all
Laws, the Rules and other provisions of this Lease, and such
other requirements as Landlord may impose concerning the manner and
times in which such Work shall be done. Any floor, wall or ceiling
coring work or penetrations or use of noisy or heavy equipment
which may interfere with the conduct of business by other tenants
at the Property shall, at Landlord’s option, be performed at
times other than Landlord’s normal business hours (at
Tenant’s sole cost). If Tenant fails to perform the Work as
required herein or the materials supplied fail to comply herewith
or with the specifications approved by Landlord, and Tenant fails
to commence to cure such failure within 48 hours after notice by
Landlord, and diligently prosecute until completion (except notice
shall not be required in emergencies), Landlord shall have the
right to stop the Work until such failure is cured (which shall not
be in limitation of Landlord’s other remedies and shall not
serve to abate the Rent or Tenant’s other obligations under
this Lease). Upon completion of any Work hereunder, Tenant shall
provide Landlord with “as built” plans, copies of all
construction contracts, and proof of payment for all labor and
materials.
D.
Liens .
Tenant shall pay all costs for the Work when due. Tenant
shall keep the Property, Premises and this Lease free from any
mechanic’s, materialman’s, architect’s,
engineer’s or similar liens or encumbrances, and any claims
therefor, or stop or violation notices, in connection with any
Work. Tenant shall give Landlord notice at least ten (10) days
prior to the commencement of any Work (or such additional time as
may be necessary under applicable Laws), to afford Landlord the
opportunity of posting and recording appropriate notices of non-
responsibility. Tenant shall remove any such claim, lien or
encumbrance, or stop or violation notices of record, by bond or
otherwise within ten (10) days after notice by Landlord. If
Tenant fails to do so, Landlord may pay the amount (or any portion
thereof) or take such other action as Landlord deems necessary to
remove such claim, lien or encumbrance, or stop or violation
notices, without being responsible for investigating the validity
thereof. The amount so paid and costs incurred by Landlord shall be
deemed additional Rent under this Lease payable upon demand,
without limitation as to other remedies available to Landlord.
Nothing contained in this Lease shall authorize Tenant to do any
act which shall subject Landlord’s title to, or any
Lender’s interest in, the Property or Premises to any such
claims, liens or encumbrances, or stop or violation notices,
whether claimed pursuant to statute or other Law or express or
implied contract.
E.
Removal of Work Upon Termination of Lease . All Work hereunder shall remain
or be removed from the Premises upon expiration or earlier
termination of this Lease to the extent required under
Article 23.
F.
Landlord’s Fees and Costs . If Landlord acts as Tenant’s
construction manager for Work under this Lease, Tenant shall pay
Landlord a fee for reviewing, scheduling, monitoring, supervising,
and providing access for or in connection with the Work, in an
amount equal to fifteen percent (15%) of the total cost of the Work
(including costs of plans and permits therefor), and
Landlord’s out-of-pocket costs, including any costs for
security, utilities, trash removal, temporary barricades,
janitorial, engineering, architectural or consulting services, and
other matters in connection with the Work, payable within ten
(10) business days after billed. If Landlord is not the
construction manager, the parties shall mutually agree upon the fee
to be charged for Landlord’s reviewing, scheduling,
monitoring, supervising, and/or providing access for or in
connection with the Work, in addition to Landlord’s
out-of-pocket costs, including any costs for security, utilities,
trash removal, temporary barricades, janitorial, engineering,
architectural or
9
consulting services, and other
matters in connection with the Work, which shall be payable within
ten (10) business days after billed.
ARTICLE 10: INSURANCE AND
WAIVER OF CLAIMS
A.
Required Insurance .
Tenant shall maintain at its expense during the Term
with respect to the Premises and Tenant’s use thereof and of
the Property:
(i)
Worker’s Compensation Insurance in the amounts required by
statute, and Employer Liability Insurance in at least the following
amounts: (a) Bodily Injury by Accident -$500,000 per accident,
(b) Bodily Injury by Disease - $500,000 per employee, and
(c) Aggregate Limit - $1,000,000 per policy year.
(ii)
Property Damage Insurance for the protection of Tenant and
Landlord, as their interests may appear, covering any alterations
or improvements in excess of any work provided or paid for by
Landlord under this Lease, Tenant’s personal property,
business records, fixtures and equipment, and other insurable risks
in amounts not less than the full insurable replacement cost of
such property and full insurable value of such other interests of
Tenant, with coverage at least as broad as the most recent editions
published by Insurance Services Office, Inc. or any successor
organization (“ISO”), of: (a) Building and
Personal Property Coverage Form (CP0010), (b) Business Income
Coverage Form (CP0030), covering at least one year of
anticipated income, (c) Boiler and Machinery Coverage
Form (BM0025), (d) Causes of Special Loss
Form (CP1030), and (e) Sprinkler Leakage - Earthquake
Extension (CP1039).
(iii)
Commercial General Liability Insurance (“CGL”) at least
as broad as the most recent ISO edition of Commercial General
Liability Coverage Form (CG0001) with limits of at least the
following amounts: (a) Death or Bodily Injury - $2,000,000,
(b) Property Damage or Destruction (including loss of use
thereof) - $1,000,000, (c) Products/Completed Operations
-$1,000,000, (d) Personal or Advertising injury - $1,000,000,
(e) Each Occurrence Limit -$2,000,000, and (f) General
Aggregate Limit - $3,000,000 per policy year. Such policy shall
include endorsements: (1) for contractual liability covering
Tenant’s indemnity obligations under this Lease, and
(2) adding Landlord, the management company for the Property,
and other parties designated by Landlord, as Additional Insureds,
on a form at least as broad as the most recent edition of
Additional Insured - Manager or Lessor of Premises Endorsement
Form (CG2011) published by ISO.
B.
Certificates, Subrogation and Other Matters . Tenant shall provide Landlord
with certificates evidencing the coverage required hereunder prior
to the Commencement Date, or Tenant’s entry to the Premises
for construction of improvements or any other purpose (whichever
first occurs). Such certificates shall: (i) be on ACORD
Form 27 or such other form approved or required by Landlord,
(ii) state that such insurance coverage may not be changed,
canceled or non-renewed without at least thirty (30) days’
prior written notice to Landlord, and (iii) include, as
attachments, originals of the Additional Insured endorsements to
Tenant’s CGL policy required above. Tenant shall provide
renewal certificates to Landlord at least thirty (30) days prior to
expiration of such policies. Except as expressly provided to the
contrary herein, coverage hereunder shall apply to events occurring
during the policy year regardless of when a claim is made. Landlord
may periodically require that Tenant reasonably increase or expand
the aforementioned coverage. Except as provided to the contrary
herein, any insurance carried by Landlord or Tenant shall be for
the sole benefit of the party carrying such insurance. If Tenant
obtains insurance under “blanket policies,” Tenant
shall obtain an endorsement providing that the insurance limits
required hereunder are not subject to reduction or impairment by
claims or losses at other locations. Tenant’s insurance
policies shall be primary to all policies of Landlord and any other
Additional Insureds (whose policies shall be deemed excess and
non-contributory). All insurance required hereunder shall be
provided by responsible insurers licensed in the State of
Washington, and shall have a general policy holder’s rating
of at least A and a financial rating of at least X in the then
current edition of Best’s Insurance Reports. The parties
mutually hereby waive all rights and claims against each other for
all losses covered by their respective insurance policies (or
required to be covered by insurance under this Lease), and waive
all rights of subrogation of their respective insurers. The parties
agree that their respective insurance policies are now, or shall
be, endorsed such that said waiver of subrogation shall not affect
the right of the insured to recover thereunder. Landlord disclaims
any representation as to whether the foregoing coverages will be
adequate to protect Tenant, and Tenant agrees to carry such
additional coverage as may be necessary or appropriate.
C.
Waiver of Claims .
Except for claims arising from Landlord’s intentional
or grossly negligent acts, Tenant waives all claims against
Landlord for injury or death to persons, damage to property or to
any other interest of Tenant sustained by Tenant or any party
claiming by or
10
through Tenant resulting from:
(i) any occurrence in or upon the Premises, (ii) leaking
of roofs, bursting, stoppage or leaking of water, gas, sewer
or steam pipes or equipment, including sprinklers, (iii) wind,
rain, snow, ice, flooding (including flooding of basements and
other subsurface areas), freezing, fire, explosion, earthquake,
excessive heat or cold, dampness, fire or other casualty,
(iv) the Property, Premises, Systems and Equipment being
defective, out of repair, or failing, and (v) vandalism,
malicious mischief, theft, misappropriation or other acts or
omissions of any parties including Tenant’s employees, other
tenants, and their respective agents, employees, invitees and
contractors (and Tenant shall give Landlord immediate notice of any
such occurrences). This provision is in addition to, and not in
limitation of, other provisions of this Lease limiting
Landlord’s liability.
D.
Mutual Waiver of Claims; Waiver of Subrogation
. Landlord and Tenant
release each other, and their respective officers, directors,
trustees, beneficiaries, partners, members, managers, agents, and
employees, from, and waive their entire claim of recovery for, any
claims for damage to the Premises and the Building and to
Tenant’s alterations, trade fixtures and personal property
that are caused by or result from fire, lightening or any other
perils normally included in an “all risk” property
insurance policy whether or not such loss or damage is due to the
negligence of Landlord, or its officers, directors, trustees,
beneficiaries, partners, members, managers, agents, and employees,
or of Tenant, or its officers, directors, trustees, beneficiaries,
partners, members, managers, agents, and employees. Landlord and
Tenant shall cause each insurance policy obtained by it to provide
that the insurance company waives all right of recovery by way of
subrogation against either party in connection with any damage
covered by such insurance policy.
ARTICLE 11: CASUALTY DAMAGE
A.
Restoration .
Tenant shall promptly notify Landlord of any damage to
the Premises by fire or other casualty. If the Premises or any
common areas of the Property providing access thereto shall be
damaged by fire or other casualty, Landlord shall use available
insurance proceeds to restore the same. Such restoration shall be
to substantially the same condition prior to the casualty, except
for modifications required by zoning and building codes and other
Laws or by any Lender, any other modifications to the common areas
deemed desirable by Landlord (provided access to the Premises is
not materially impaired), and except that Landlord shall not be
required to repair or replace any of Tenant’s furniture,
furnishings, fixtures or equipment, or any alterations or
improvements in excess of any work provided or paid for by Landlord
under this Lease. Landlord shall not be liable for any
inconvenience or annoyance to Tenant or its visitors, or injury to
Tenant’s business resulting in any way from such damage or
the repair thereof. Promptly following completion of
Landlord’s restoration work, Tenant shall repair and replace
Tenant’s furniture, furnishings, fixtures, equipment, and any
alterations or improvements made by Tenant in excess of those
provided or paid for by Landlord, subject to and in compliance with
the other provisions of this Lease.
B.
Abatement of Rent .
Landlord shall allow Tenant a proportionate abatement of Base
Rent from the date of the casualty through the date that Landlord
substantially completes Landlord’s repair obligations
hereunder (or the date that Landlord would have substantially
completed such repairs, but for delays by Tenant or any other
occupant of the Premises, or any of their agents, employees,
invitees, Transferees and contractors), provided such abatement:
(i) shall apply only to the extent the Premises are
untenantable for the purposes permitted under this Lease and not
used by Tenant as a result thereof, based proportionately on the
square footage of the Premises so affected and not used, and
(ii) shall not apply if Tenant or any other occupant of the
Premises, or any of their agents, employees, invitees, Transferees
or contractors caused the damage.
C.
Termination of Lease . Notwithstanding the foregoing to
the contrary, in lieu of performing the restoration work, Landlord
may elect to terminate this Lease by notifying Tenant in writing of
such termination within sixty (60) days after the date of damage
(such termination notice to include a termination date providing at
least thirty (30) days for Tenant to vacate the Premises), or if
the Property shall be damaged by fire or other casualty or cause
such that: (a) repairs to the Premises and access thereto
cannot reasonably be completed within 120 days after the casualty
without the payment of overtime or other premiums, (b) more
than twenty-five percent (25%) of the Premises is affected by the
damage and fewer than eighteen (18) months remain in the Term, or
any material damage occurs to the Premises during the last twelve
(12) months of the Term, (c) any Lender shall require that the
insurance proceeds or any portion thereof be used to retire the
Mortgage debt (or shall terminate the ground lease, as the case may
be), or the damage is not fully covered, except for deductible
amounts, by Landlord’s insurance policies, or (d) the
cost of the repairs, alterations, restoration or improvement work
would exceed
11
twenty-five percent (25%) of the
replacement value of the Building (whether or not the Premises are
affected by the damage). Tenant agrees that the abatement of Rent
provided herein shall be Tenant’s sole recourse in the event
of such damage, and waives any other rights Tenant may have under
any applicable Law to perform repairs or terminate the Lease by
reason of damage to the Premises or Property.
ARTICLE 12: CONDEMNATION
If at least fifty percent (50%) of
the rentable area of the Premises shall be taken by power of
eminent domain or condemned by a competent authority or by
conveyance in lieu thereof for public or quasi-public use
(“Condemnation”), including any temporary taking for a
period of one year or longer, this Lease shall terminate on the
date possession for such use is so taken. If: (i) less than
fifty percent (50%) of the Premises is taken, but the taking
includes or affects a material portion of the Building or Property,
or the economical operation thereof, or (ii) the taking is
temporary and will be in effect for less than one year but more
than thirty (30) days, then in either such event, Landlord may
elect to terminate this Lease upon at least thirty (30) days’
prior notice to Tenant. The parties further agree that: (a) if
this Lease is terminated, all Rent shall be apportioned as of the
date of such termination or the date of such taking, whichever
shall first occur, (b) if the taking is temporary, Rent shall
not be abated for the period of the taking, but Tenant may seek a
condemnation award therefor (and the Term shall not be extended
thereby), and (c) if this Lease is not terminated but any part
of the Premises is permanently taken, the Rent shall be
proportionately abated based on the square footage of the Premises
so taken. Landlord shall be entitled to receive the entire award or
payment in connection with such Condemnation and Tenant hereby
assigns to Landlord any interest therein for the value of
Tenant’s unexpired leasehold estate or any other claim and
waives any right to participate therein, except that Tenant shall
have the right to claim damages for a temporary taking of the
leasehold as described above, and for moving expenses and any
taking of Tenant’s personal property.
ARTICLE 13: ASSIGNMENT AND
SUBLETTING
A.
Transfers .
Tenant shall not, without the prior written consent of
Landlord, which consent shall not be unreasonably withheld as
further described below: (i) assign, mortgage, pledge, hypothecate,
encumber, or permit any lien to attach to, or otherwise transfer,
this Lease or any interest hereunder, by operation of Law or
otherwise, (ii) sublet the Premises or any part thereof,
(iii) permit the use of the Premises by any Persons other than
Tenant and its employees (all of the foregoing are hereinafter
sometimes referred to collectively as “Transfers” and
any Person to whom any Transfer is made or sought to be made is
hereinafter sometimes referred to as a “Transferee”),
or (iv) advertise the Premises or Lease for Transfers. If
Tenant shall desire Landlord’s consent to any Transfer,
Tenant shall notify Landlord in writing, which notice shall
include: (a) the proposed effective date (which shall not be
less than thirty (30) nor more than 180 days after Tenant’s
notice), (b) the portion of the Premises to be Transferred
(herein called the “Subject Space”), (c) the terms
of the proposed Transfer and the consideration therefor, the name,
address and background information concerning the proposed
Transferee, and a true and complete copy of all proposed Transfer
documentation, and (d) financial statements (balance sheets
and income/expense statements for the current and prior three
(3) years (if three years are available)) of the proposed
Transferee, in form and detail reasonably satisfactory to Landlord,
certified by an officer, partner or owner of the Transferee, and
any other information to enable Landlord to determine the financial
responsibility, character, and reputation of the proposed
Transferee, nature of such Transferee’s business and proposed
use of the Subject Space, and such other information as Landlord
may reasonably require. Any Transfer made without complying with
this Article shall at Landlord’s option be null, void
and of no effect, or shall constitute a Default under this Lease.
Whether or not Landlord shall grant consent, Tenant shall pay a
reasonable fee (but not less than $500.00) towards Landlord’s
review and processing expenses (such fee shall be estimated by
Landlord and approved by Tenant in advance), as well as any
reasonable legal fees incurred by Landlord within ten
(10) days after written request by Landlord.
B.
Approval .
Landlord will not unreasonably withhold its consent to any
proposed Transfer of the Subject Space to the Transferee on the
terms specified in Tenant’s notice. The parties hereby agree
that it shall be reasonable under this Lease and under any
applicable Law for Landlord to withhold consent to any proposed
Transfer where one or more of the following applies (without
limitation as to other reasonable grounds for withholding consent):
(i) the Transferee is of a character or reputation or engaged in a
business which is not consistent with the quality or nature of the
Property or other tenants of the Property, or would be a
significantly
12
less prestigious occupant of the
Property than Tenant, (ii) the Transferee intends to use the
Subject Space for purposes which are not permitted under this
Lease, (iii) the Subject Space is not regular in shape with
appropriate means of ingress and egress suitable for normal renting
purposes, would result in more than a reasonable number of
occupants, or would require increased services by Landlord,
(iv) the Transferee is either a government (or agency or
instrumentality thereof), (v) the proposed Transferee or any
affiliate thereof is an occupant of the Property, (vi) the
proposed Transferee does not have, in Landlord’s sole good
faith determination, satisfactory references or a reasonable
financial condition in relation to the obligations to be assumed in
connection with the Transfer, (vii) the Transfer is other than
a sublease or a non-collateral complete assignment, (viii) the
proposed Transfer would cause Landlord to be in violation of any
Laws or any other lease, Mortgage or agreement to which Landlord is
a party, would give a tenant of the Property a right to cancel its
lease, or would create adverse tax consequences for Landlord, or
(ix) Tenant has committed and failed to cure a Default. If
Tenant disagrees with Landlord’s decision to deny approval,
Tenant’s sole remedy shall be to seek injunctive
relief.
C.
Transfer Premiums .
If Landlord consents to a Transfer, and as a condition
thereto which the parties hereby agree is reasonable, Tenant shall
pay Landlord fifty percent (50%) of any Transfer Premium derived by
Tenant from such Transfer. “Transfer Premium” shall
mean, for a lease assignment, all consideration paid or payable
therefor. “Transfer Premium” shall mean, for a
sublease, all rent, additional rent or other consideration paid by
such Transferee in excess of the Rent payable by Tenant under this
Lease (on a monthly basis during the Term, and on a per rentable
square foot basis, if less than all of the Premises is
transferred). “Transfer Premium” shall also include
so-called “key money,” or other bonus amount paid by
Transferee to Tenant, and any payment in excess of fair market
value for services rendered by Tenant to Transferee or in excess of
Tenant’s depreciated tax basis for assets, fixtures,
inventory, equipment or furniture transferred by Tenant to
Transferee. If part of the consideration for such Transfer shall be
payable other than in cash, Landlord’s share of such non-cash
consideration shall be in such form as is reasonably satisfactory
to Landlord. The percentage of the Transfer Premium due Landlord
hereunder shall be paid within ten (10) days after Tenant
receives any Transfer Premium from the Transferee.
D.
Recapture .
Notwithstanding anything to the contrary contained in this
Article, Landlord shall have the option, by giving notice to Tenant
within thirty (30) days after receipt of Tenant’s notice of
any proposed Transfer, to recapture the Subject Space. Such
recapture notice shall cancel and terminate this Lease with respect
to the Subject Space as of the date stated in Tenant’s notice
as the effective date of the proposed Transfer (or at
Landlord’s option, shall cause the Transfer to be made to
Landlord or its agent or nominee, in which case the parties shall
execute reasonable Transfer documentation promptly thereafter). If
this Lease shall be canceled with respect to less than the entire
Premises, the Rent herein shall be prorated on the basis of the
number of rentable square feet retained by Tenant in proportion to
the number of rentable square feet contained in the Premises, this
Lease as so amended shall continue thereafter in full force and
effect, and upon request of either party the parties shall execute
written confirmation of the same. Tenant shall surrender and vacate
the Subject Space when required hereunder in accordance with
Article 23 and any failure to do so shall be subject to
Article 24.
E.
Terms of Consent .
If Landlord consents to a Transfer: (i) the terms
and conditions of this Lease, including Tenant’s liability
for the Subject Space, shall in no way be deemed to have been
waived or modified, (ii) such consent shall not be deemed
consent to any further Transfer by either Tenant or a Transferee,
(iii) no Transferee shall succeed to any rights provided in
this Lease or any amendment hereto to extend the Term of this
Lease, expand the Premises, or lease other space, any such rights
being deemed personal to the initial Tenant, (iv) Tenant shall
deliver to Landlord promptly after execution, an original executed
copy of all documentation pertaining to the Transfer in form
reasonably acceptable to Landlord, and (v) Tenant shall
furnish a complete statement, certified by an independent certified
public accountant, or Tenant’s chief financial officer,
setting forth in detail the computation of any Transfer Premium
that Tenant has derived and shall derive from such Transfer.
Landlord or its authorized representatives shall have the right at
all reasonable times to audit the books, records and papers of
Tenant and any Transferee relating to any Transfer, and shall have
the right to make copies thereof. If the Transfer Premium
respecting any Transfer shall be found understated, Tenant shall
within thirty (30) days after demand pay the deficiency, and if
understated by more than five percent (5%) Tenant shall pay
Landlord’s costs of such audit. Any sublease hereunder shall
be subordinate and subject to the provisions of this Lease, and if
this Lease shall be terminated during the term of any sublease,
Landlord shall have the right to: (a) deem such sublease as
merged and canceled
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and repossess the Subject Space by
any lawful means, or (b) deem such termination as an
assignment of such sublease to Landlord and not as a merger, and
require that such subtenant attorn to and recognize Landlord as its
landlord under any such sublease. If Tenant shall commit a Default
under this Lease, and such Default remains uncured after the
expiration of notice and cure periods, Landlord is hereby
irrevocably authorized, as Tenant’s agent and
attorney-in-fact, to direct any Transferee to make all payments
under or in connection with the Transfer directly to Landlord
(which Landlord shall apply towards Tenant’s obligations
under this Lease).
F.
Certain Transfers .
For purposes of this Lease, the term
“Transfer” shall also include, and all of the foregoing
provisions shall apply to: (i) the conversion, merger or
consolidation of Tenant into a limited liability company or limited
liability partnership, (ii) if Tenant is a partnership or
limited liability company, the withdrawal or change, voluntary,
involuntary or by operation of law, of a majority of the partners
or members, or a transfer of a majority of partnership or
membership interests, within a twelve month period, or the
dissolution of the partnership or company, and (iii) if Tenant
is a closely held corporation (i.e., whose stock is not publicly
held and not traded through an exchange or over the counter), the
dissolution, merger, consolidation or other reorganization of
Tenant, or within a twelve month period: (a) the sale or other
transfer of more than an aggregate of 50% of the voting shares of
Tenant (other than to immediate family members by reason or gift or
death) or (b) the sale, mortgage, hypothecation or pledge of
more than an aggregate of 50% of Tenant’s net
assets.
ARTICLE 14: PERSONAL
PROPERTY, RENT AND OTHER TAXES
Tenant shall pay prior to
delinquency all taxes, charges or other governmental impositions
assessed against or levied upon all fixtures, furnishings, personal
property, systems and equipment located in or exclusively serving
the Premises, and any Work to the Premises under Article 9 or
other provisions of this Lease or related documentation. Whenever
possible, Tenant shall cause all such items to be assessed and
billed separately from the other property of Landlord. In the event
any such items shall be assessed and billed with the other property
of Landlord, Tenant shall pay Landlord its share of such taxes,
charges or other governmental impositions within ten (10) days
after Landlord delivers a statement and a copy of the assessment or
other documentation showing the amount of impositions applicable to
Tenant’s property. Tenant shall pay any rent tax, sales tax,
service tax, transfer tax, value added tax, or any other applicable
tax on the Rent, utilities or services herein, the privilege of
renting, using or occupying the Premises, or collecting Rent
therefrom, or otherwise respecting this Lease or any other document
entered in connection herewith.
ARTICLE 15: LANDLORD’S
REMEDIES
A.
Default . The
occurrence of any one or more of the following events shall
constitute a “Default” by Tenant and shall give rise to
Landlord’s remedies set forth in Paragraph B below:
(i) failure to make when due any payment of Rent, unless such
failure is cured within five (5) days after notice;
(ii) failure to observe or perform any term or condition of
this Lease other than the payment of Rent (or the other matters
expressly described herein), unless such failure is cured within
any period of time following notice expressly provided with respect
thereto in other Articles hereof, or otherwise within a reasonable
time, but in no event more than twenty (20) days following notice
(provided, if the nature of Tenant’s failure is such that
more time is reasonably required in order to cure, Tenant shall not
be in Default if Tenant commences to cure promptly within such
period, diligently seeks and keeps Landlord reasonably advised of
efforts to cure such failure to completion, and completes such cure
within sixty (60) days following Landlord’s notice);
(iii) failure to cure immediately upon notice thereof any
condition which is hazardous, interferes with another Tenant or the
operation or leasing of the Property, or may cause the imposition
of a fine, penalty or other remedy on Landlord or its agents or
affiliates, (iv) violating Article 13 respecting Transfers, or
abandoning, vacating or failing to occupy the Premises for more
than ten (10) days, or removing or making arrangements to
remove substantial portions of the furniture or other personal
property from the Premises or any material portion thereof, or
(v) (a) making by Tenant or any guarantor of this Lease
(“Guarantor”) of any general assignment for the benefit
of creditors, (b) filing by or for reorganization or
arrangement under any Law relating to bankruptcy or insolvency
(unless, in the case of a petition filed against Tenant or such
Guarantor, the same is dismissed within sixty (60) days),
(c) appointment of a trustee or receiver to take possession of
substantially all of Tenant’s assets located in the Premises
or of Tenant’s interest in this Lease, where possession is
not restored to Tenant within sixty (60) days, (d) attachment,
execution or other judicial seizure of substantially all of
Tenant’s assets located in the Premises or of Tenant’s
interest in this Lease, (e) Tenant’s or any Guarantor’s
convening of a meeting of its creditors or any class thereof for
the purpose of
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effecting a moratorium upon or
composition of its debts, (f) Tenant’s or any
Guarantor’s insolvency or failure, or admission of an
inability, to pay debts as they mature, or (g) a violation by
Tenant or any affiliate of Tenant under any other lease or
agreement with Landlord or any affiliate thereof which is not cured
within the time permitted for cure thereunder. If Tenant violates
the same term or condition of this Lease on two (2) occasions
during any twelve (12) month period, Landlord shall have the right
to exercise all remedies for any violations of the same term or
condition during the next twelve (12) months without providing
further notice or an opportunity to cure. The notice and cure
periods provided herein are in lieu of, and not in addition to, any
notice and cure periods provided by Law; provided, Landlord may
elect to comply with such notice and cure periods provided by Law
in lieu of the notice and cure periods provided herein.
B.
Remedies . If
a Default occurs, Landlord shall have the rights and remedies
hereinafter set forth to the extent permitted by Law, which shall
be distinct, separate and cumulative with and in addition to any
other right or remedy allowed under any Law or other provision of
this Lease:
(1)
Landlord may terminate this Lease and Tenant’s right of
possession, reenter and repossess the Premises by detainer suit,
summary proceedings or other lawful means, and recover from Tenant:
(i) any unpaid Rent as of the termination date, (ii) the
amount by which: (a) any unpaid Rent which would have accrued
after the termination date during the balance of the Term exceeds
(b) the reasonable rental value of the Premises under a lease
substantially similar to this Lease, taking into account among
other things the condition of the Premises, market conditions and
the period of time the Premises may reasonably remain vacant before
Landlord is able to re-lease the same to a suitable replacement
tenant, and Costs of Reletting (as defined in Paragraph H below)
that Landlord may incur in order to enter such replacement lease,
(iii) any other amounts necessary to compensate Landlord for all
damages proximately caused by Tenant’s failure to perform its
obligations under this Lease. For purposes of computing the amount
of Rent herein that would have accrued after the termination date,
Tenant’s obligations for Taxes and Expenses shall be
projected based upon the average rate of increase in such items
from the Commencement Date through the termination date (or if such
period shall be less than three years, then based on
Landlord’s reasonable estimates). The amounts computed in
accordance with the foregoing subclauses (a) and
(b) shall both be discounted in accordance with accepted
financial practice at the rate of four percent (4%) per annum to
the then present value.
(2)
Landlord may terminate Tenant’s right of possession, reenter
and repossess the Premises by detainer suit, summary proceedings or
other lawful means, without terminating this Lease, and recover
from Tenant: (i) any unpaid Rent as of the date possession is
terminated, (ii) any unpaid Rent which thereafter accrues
during the Term from the date possession is terminated through the
time of judgment (or which may have accrued from the time of any
earlier judgment obtained by Landlord), less any consideration
received from replacement tenants as further described and applied
pursuant to Paragraph H, below, and (iii) any other amounts
necessary to compensate Landlord for all damages proximately caused
by Tenant’s failure to perform its obligations under this
Lease, including all Costs of Reletting (as defined in Paragraph H
below). Tenant shall pay any such amounts to Landlord as the same
accrue or after the same have accrued from time to time upon
demand. At any time after terminating Tenant’s right to
possession as provided herein, Landlord may terminate this Lease as
provided in clause (1) above by notice to Tenant, and Landlord
may pursue such other remedies as may be available to Landlord
under this Lease or applicable Law.
C.
Mitigation of Damages . If Landlord terminates this Lease
or Tenant’s right to possession, Landlord shall have no
obligation to mitigate Landlord’s damages, except to the
extent required by applicable Law. If Landlord has not terminated
this Lease or Tenant’s right to possession, Landlord shall
have no obligation to mitigate under any circumstances and may
permit the Premises to remain vacant or abandoned; in such case,
Tenant may seek to mitigate damages by attempting to sublease the
Premises or assign this Lease pursuant to Article 13. If
Landlord is required to mitigate damages: (i) Landlord shall
be required only to use reasonable efforts to mitigate, which shall
not exceed such efforts as Landlord generally uses to lease other
space at the Property, (ii) Landlord will not be deemed to
have failed to mitigate if Landlord or its affiliates lease any
other portions of the Property or other projects owned by Landlord
or its affiliates in the same geographic area, before reletting all
or any portion of the Premises, and (iii) any failure to
mitigate as described herein with respect to any period of time
shall only reduce the Rent and other amounts to which Landlord is
entitled hereunder by the reasonable rental value of the Premises
during such period, taking into account the factors described in
clause B(1) above. In recognition that the value of the
Property depends on the rental rates and terms of leases therein,
Landlord’s rejection of a prospective replacement tenant
based on an offer of rentals below Landlord’s published rates
for new leases of comparable space at the Property at the
time
15
in question, or at Landlord’s
option, below the rates provided in this Lease, or containing terms
less favorable than those contained herein, shall not give rise to
a claim by Tenant that Landlord failed to mitigate Landlord’s
damages.
D.
Reletting .
If this Lease or Tenant’s right to possession is
terminated, or Tenant abandons the Premises, Landlord may:
(i) enter and secure the Premises, change the locks, install
barricades, remove any improvements, fixtures or other property of
Tenant therein, perform any decorating, remodelling, repairs,
alterations, improvements or additions and take such other actions
as Landlord shall determine in Landlord’s sole discretion to
prevent damage or deterioration to the Premises or prepare the same
for reletting, and (ii) relet all or any portion of the
Premises (separately or as part of a larger space), for any rent,
use or period of time (which may extend beyond the Term hereof),
and upon any other terms as Landlord shall determine in
Landlord’s sole discretion, directly or as Tenant’s
agent (if permitted or required by applicable Law). The
consideration received from such reletting shall be applied
pursuant to the terms of Paragraph H hereof, and if such
consideration, as so applied, is not sufficient to cover all Rent
and damages to which Landlord may be entitled hereunder, Tenant
shall pay any deficiency to Landlord as the same accrues or after
the same has accrued from time to time upon demand, subject to the
other provisions hereof.
E.
Specific Performance, Collection of Rent and
Acceleration .
Landlord shall at all times have the right without prior
demand or notice except as required by applicable Law to:
(i) seek any declaratory, injunctive or other equitable
relief, and specifically enforce this Lease or restrain or enjoin a
violation of any provision hereof, and Tenant hereby waives any
right to require that Landlord post a bond or other security in
connection therewith, and (ii) sue for and collect any unpaid
Rent which has accrued. Notwithstanding anything to the contrary
contained in this Lease, to the extent not expressly prohibited by
applicable Law, in the event of any Default by Tenant, Landlord may
terminate this Lease or Tenant’s right to possession and
accelerate and declare all Rent reserved for the remainder of the
Term to be immediately due and payable (in which event,
Tenant’s obligations for Taxes and Expenses that would have
accrued thereafter shall be projected in the manner described in
Section B (1), above); provided the Rent so accelerated shall
be discounted in accordance with accepted financial practice at the
rate of four percent (4%) per annum to the then present value, and
Landlord shall, after receiving payment of the same from Tenant, be
obligated to turn over to Tenant any actual net reletting proceeds
(net of all Costs of Reletting) thereafter received during the
remainder of the Term, up to the amount so received from Tenant
pursuant to this provision.
F.
Late Charges, Interest, and Returned Checks . Tenant shall pay, as additional
Rent, a service charge of Three Hundred Dollars ($300.00) or four
percent (4%) of the delinquent amount, whichever is greater, if any
portion of Rent is not received when due. In addition, any Rent not
paid when due shall accrue interest from the due date at the
Default Rate until payment is received by Landlord. Such service
charges and interest payments shall not be deemed consent by
Landlord to late payments, nor a waiver of Landlord’s right
to insist upon timely payments at any time, nor a waiver of any
remedies to which Landlord is entitled as a result of the late
payment of Rent. If Landlord receives two (2) or more checks
from Tenant which are returned by Tenant’s bank for
insufficient funds, Landlord may require that all checks thereafter
be bank certified or cashier’s checks (without limiting
Landlord’s other remedies). All bank service charges
resulting from any returned checks shall be borne by
Tenant.
G.
Landlord’s Cure of Tenant Defaults . If Tenant fails to perform any
obligation under this Lease for five (5) days after notice
thereof by Landlord (except that no notice shall be required in
emergencies), Landlord shall have the right (but not the duty), to
perform such obligation on behalf and for the account of Tenant. In
such event, Tenant shall reimburse Landlord upon demand, as
additional Rent, for all expenses incurred by Landlord in
performing such obligation together with an amount equal to fifteen
(15%) thereof for Landlord’s overhead, and interest thereon
at the Default Rate from the date such expenses were incurred.
Landlord’s performance of Tenant’s obligations
hereunder shall not be deemed a waiver or release of Tenant
therefrom.
H.
Other Matters .
No re-entry or repossession, repairs, changes, alterations
and additions, reletting, or any other action or omission by
Landlord shall be construed as an election by Landlord to terminate
this Lease or Tenant’s right to possession, nor shall the
same operate to release Tenant in whole or in part from any of
Tenant’s obligations hereunder, unless express notice of such
intention is sent by Landlord to Tenant. Landlord may bring suits
for amounts owed by Tenant hereunder or any portions thereof, as
the same accrue or after the same have accrued, and no suit or
recovery of any portion due hereunder shall be deemed a waiver of
Landlord’s right to collect all amounts to which Landlord is
entitled hereunder, nor shall the same serve as any defense to any
subsequent suit brought for any amount not therefor reduced
to
16
judgment. Landlord may pursue one or
more remedies against Tenant and need not make an election of
remedies until findings of fact are made by a court of competent
jurisdiction. All rent and other consideration paid by any
replacement tenants shall be applied at Landlord’s option:
(i) first, to the Costs of Reletting, (ii) second, to the
payment of all costs of enforcing this Lease against Tenant or any
Guarantor, (iii) third, to the payment of all interest and
service charges accruing hereunder, (iv) fourth, to the
payment of Rent theretofore accrued, and (v) with the residue,
if any, to be held by Landlord and applied to the payment of Rent
and other obligations of Tenant as the same become due (and with
any remaining residue to be retained by Landlord). “Costs of
Reletting” shall include without limitation, all costs and
expenses incurred by Landlord for any repairs or other matters
described in Paragraph D above, brokerage commissions, advertising
costs, attorneys’ fees, any economic incentives given to
enter leases with replacement tenants, and costs of collecting rent
from replacement tenants. Landlord shall be under no obligation to
observe or perform any provision of this Lease on its part to be
observed or performed which accrues while Tenant is in Default
hereunder. The times set forth herein for the curing of Defaults by
Tenant are of the essence of this Lease. Tenant hereby irrevocably
waives any right otherwise available under any Law to redeem or
reinstate this Lease, or Tenant’s right to possession, after
this Lease, or Tenant’s right to possession, is terminated
based on a Default by Tenant.
ARTICLE 16: SECURITY DEPOSIT
Tenant shall deposit with Landlord
the amount set forth in Article 1 (“Security
Deposit”), upon Tenant’s execution and submission of
this Lease. The Security Deposit shall serve as security for the
prompt, full and faithful performance by Tenant of the terms and
provisions of this Lease. If Tenant commits a Default, or owes any
amounts to Landlord upon the expiration of this Lease, Landlord may
use or apply the whole or any part of the Security Deposit for the
payment of Tenant’s obligations hereunder. The use or
application of the Security Deposit or any portion thereof shall
not prevent Landlord from exercising any other right or remedy
provided hereunder or under any Law and shall not be construed as
liquidated damages. In the event the Security Deposit is reduced by
such use or application, Tenant shall deposit with Landlord within
ten (10) days after notice, an amount sufficient to restore
the full amount of the Security Deposit. Landlord shall not be
required to keep the Security Deposit separate from
Landlord’s general funds or pay interest on the Security
Deposit. Any remaining portion of the Security Deposit shall be
returned to Tenant (or, at Landlord’s option, to the last
assignee of Tenant’s interest in this Lease) within sixty
(60) days after Tenant (or such assignee) has vacated the Premises
in accordance with Article 23. If the Premises shall be
expanded at any time, or if the Term shall be extended at an
increased rate of Rent, the Security Deposit shall thereupon be
proportionately increased. Tenant shall not assign, pledge or
otherwise transfer any interest in the Security Deposit except as
part of an assignment of this Lease approved by Landlord under
Article 13, and any attempt to do so shall be null and
void.
ARTICLE 17: ATTORNEYS’
FEES, JURY TRIAL, COUNTERCLAIMS AND VENUE
In the event of any litigation or
arbitration between the parties relating to this Lease, the
Premises or Property (including pretrial, trial, appellate,
administrative, bankruptcy or insolvency proceedings), the
prevailing party shall be entitled to recover its attorneys’
fees and costs as part of the judgment, award or settlement
therein. In the event of a breach of this Lease by either party
which does not result in litigation but which causes the
non-breaching party to incur attorneys’ fees or costs, the
breaching party shall reimburse such fees and costs to the
non-breaching party upon demand. If either party or any of its
officers, directors, trustees, beneficiaries, partners, agents,
affiliates or employees shall be made a party to any litigation or
arbitration commenced by or against the other party and is not at
fault, the other party shall pay all costs, expenses and
attorneys’ fees incurred by such parties in connection with
such litigation. IN THE INTEREST OF OBTAINING A SPEEDIER AND
LESS COSTLY HEARING OF ANY DISPUTE, LANDLORD AND TENANT HEREBY
WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
BROUGHT BY EITHER PARTY AGAINST THE OTHER ARISING OUT OF OR
RELATING TO THIS LEASE, THE PREMISES OR THE PROPERTY . Although
such jury waiver is intended to be self-operative and irrevocable,
Landlord and Tenant each further agree, if requested, to confirm
such waivers in writing at the time of commencement of any such
action, proceeding or counterclaim. If Landlord commences any
detainer suit, summary proceedings or other action seeking
possession of the Premises, Tenant agrees not to interpose by
consolidation of actions, removal to chancery or otherwise, any
counterclaim, claim of set-off, recoupment or deduction of Rent, or
other claim seeking affirmative relief of any kind (except a
mandatory or compulsory counterclaim which Tenant would forfeit if
not so interposed). Any action or proceeding brought by either
party against the other for any matter arising out of or
in
17
any way relating to this Lease, the
Premises or the Property, shall be heard, at Landlord’s
option, in the court having jurisdiction located closest to the
Property.
ARTICLE 18: SUBORDINATION,
ATTORNMENT AND LENDER PROTECTION
This Lease is subject and
subordinate to all Mortgages now or hereafter placed upon the
Property, and all other encumbrances and matters of public record
applicable to the Property. Whether before or after any foreclosure
or power of sale proceedings are initiated or completed by any
Lender or a deed in lieu is granted (or any ground lease is
terminated), Tenant agrees upon written request of any such Lender
or any purchaser at such sale, to attorn and pay Rent to such
party, and recognize such party as Landlord (provided such Lender
or purchaser shall agree not to disturb Tenant’s occupancy so
long as Tenant does not Default hereunder, on a form customarily
used by, or otherwise reasonably acceptable to, such party).
However, in the event of attornment, no Lender shall be:
(i) liable for any act or omission of Landlord, or subject to
any offsets or defenses which Tenant might have against Landlord
(arising prior to such Lender becoming Landlord under such
attornment), (ii) liable for any security deposit or bound by
any prepaid Rent not actually received by such Lender, or
(iii) bound by any modification of this Lease not consented to
by such Lender. Any Lender may elect to make this Lease prior to
the lien of its Mortgage by written notice to Tenant, and if the
Lender of any prior Mortgage shall require, this Lease shall be
prior to any subordinate Mortgage; such elections shall be
effective upon written notice to Tenant, or shall be effective as
of such earlier or later date set forth in such notice. Tenant
agrees to give any Lender by certified mail, return receipt
requested, a copy of any notice of default served by Tenant upon
Landlord, provided that prior to such notice Tenant has been
notified in writing (by way of service on Tenant of a copy of an
assignment of leases, or otherwise) of the address of such Lender.
Tenant further agrees that if Landlord shall have failed to cure
such default within the time permitted Landlord for cure under this
Lease, any such Lender whose address has been provided to Tenant
shall have an additional period of thirty (30) days in which to
cure (or such additional time as may be required due to causes
beyond such Lender’s control, including time to obtain
possession of the Property by appointment of receiver, power of
sale or judicial action). Except as expressly provided to the
contrary herein, the provisions of this Article shall be
self-operative; however Tenant shall execute and deliver, within
ten (10) days after requested, such documentation as Landlord
or any Lender may reasonably request from time to time, whether
prior to or after a foreclosure or power of sale proceeding is
initiated or completed, a deed in lieu is delivered, or a ground
lease is terminated, in order to further confirm or effectuate the
matters set forth in this Article in recordable form (and
Tenant hereby authorizes Landlord acting in good faith to
execute
