<PAGE>
EXHIBIT 10.64
(CARILLON POINT LOGO)
OFFICE LEASE AGREEMENT
BETWEEN
CARILLON PROPERTIES (LANDLORD)
AND CLEARWIRE CORPORATION (TENANT)
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TABLE OF CONTENTS
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1. Lease Data
and Exhibits.............................................
1
(a)
Development, Building,
Premises................................ 1
(b)
Premises.......................................................
1
(c)
Space
Pocket...................................................
1
(d)
Tenant's Pro Rata
Share........................................ 1
(e)
Tenant's Pro Rata
Share of Development Common Areas............ 1
(f)
Term, Commencement and
Expiration Dates........................ 1
(g)
Basic
Rent.....................................................
1
(h)
Adjustments to Basic
Rent...................................... 3
(i)
Base
Year......................................................
3
(j)
Prepaid
Rent...................................................
3
(k)
Letter of
Credit............................................... 3
(l)
Security
Deposit............................................... 3
(m)
Rent
Abatement.................................................
3
(n)
Exhibits.......................................................
3
2.
Premises............................................................
4
3.
Rent................................................................
4
4. Construction
of Tenant Improvements.................................
4
5.
Uses................................................................
4
(a)
General
Use....................................................
4
6. Hazardous
Materials.................................................
4
(a)
Landlord's Right to
Cure....................................... 5
(b)
Landlord's
Release............................................. 5
(c)
Third
Parties..................................................
5
(d)
Complete
Agreement............................................. 5
7. Additional
Rent.....................................................
5
(a)
Tenant
Payment.................................................
5
(b)
Definitions....................................................
5
(c)
Manner of
Payment.............................................. 8
(d)
Proration......................................................
8
(e)
Landlord's
Records............................................. 9
(f)
Audit
Rights...................................................
9
8. Personal
Property Taxes.............................................
9
9. Taxes on
Rent.......................................................
9
10. Maintenance and
Other Services Provided by Landlord................. 9
11. Assignment and
Subletting........................................... 10
(a)
Prior Written
Consent.......................................... 10
(b)
Approval
Process............................................... 10
(c)
Limitation of
Landlord's Withholding Consent................... 10
(d)
Allowed Transfer
Requirements.................................. 11
(e)
Processing
Fee................................................. 11
(f)
Subleasing
Profits............................................. 11
(g)
Recapture......................................................
11
12. Care of
Premises....................................................
12
13. Surrender of
Possession.............................................
12
14.
Alterations.........................................................
12
15. Entry and
Inspection................................................
13
16. Damage or
Destruction...............................................
13
(a)
Damage and
Repair.............................................. 13
(b)
Business
Interruption.......................................... 13
(c)
Tenant
Improvements-Alterations-Tenant's Personal Property.....
13
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17.
Indemnification.....................................................
14
18.
Insurance...........................................................
14
(a)
Liability
Insurance............................................ 14
(b)
Property
Insurance............................................. 14
(c)
Insurance Policy
Requirements.................................. 14
(d)
Waiver of
Subrogation.......................................... 14
(e)
Landlord's
Insurance........................................... 15
19. Advertising and
Signs............................................... 15
20. Insolvency and
Liens................................................ 15
(a)
Insolvency.....................................................
15
(b)
Liens..........................................................
15
21.
Condemnation........................................................
15
(a)
Entire
Taking..................................................
15
(b)
Partial
Taking.................................................
16
(c)
Awards and
Damages............................................. 16
22.
Default.............................................................
16
(a)
Cumulative
Remedies............................................ 16
(b)
Tenant's Right to
Cure......................................... 16
(c)
Vacation and
Abandonment....................................... 16
(d)
Landlord's
Re-entry............................................ 16
(e) Reletting the
Premises......................................... 16
(f)
Right to
Perform............................................... 17
(g)
Late
Payments..................................................
17
(h)
Landlord
Default............................................... 17
23. Subordination to
Mortgage........................................... 17
24. Mortgagee
Protection................................................
17
25.
Holdover............................................................
17
26.
Agent...............................................................
18
27.
Notices.............................................................
18
28. Costs and
Attorneys' Fees...........................................
18
29. Estoppel
Certificates...............................................
18
30. Limitation of
Liability............................................. 18
31. Transfer of
Landlord's Interest.....................................
18
32.
Nonwaiver...........................................................
19
33. Quiet
Possession....................................................
19
34. Letter of Credit /
Security Deposit................................. 19
(a)
Letter of
Credit............................................... 19
(b)
Security
Deposit............................................... 19
(c)
Return of Letter of
Credit / Security Deposit.................. 19
35.
General.............................................................
20
(a)
Headings.......................................................
20
(b)
Heirs and
Assigns.............................................. 20
(c)
No
Brokers.....................................................
20
(d)
Identification of
Tenant....................................... 20
(e)
Entire
Agreement...............................................
20
(f)
Severability...................................................
20
(g)
Force
Majeure..................................................
20
(h)
Changes to
Building............................................ 20
(i)
Building
Directory............................................. 20
(j)
Governing
Law.................................................. 20
(k)
Corporate
Authority............................................ 20
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(l)
Notice
Addresses...............................................
20
(m)
Recordation....................................................
21
(n)
Time is of the
Essence......................................... 21
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______
...........................................................
22
Exhibit A-1
Legal and Development Description..........................
23
Exhibit A-2 Site
Layout................................................ 24
Exhibit B Floor
Plan................................................. 25
Exhibit C Tenant
Improvements........................................ 27
Exhibit D Additional
Provisions...................................... 33
Exhibit E Parking
Agreement.......................................... 36
Exhibit F Subordination,
Non-Disturbance & Attornment Agrmt.......... 38
Exhibit G Form of Tenant
Estoppel Certificate........................ 42
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<PAGE>
CARILLON POINT
OFFICE LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease") is dated the 12th day of October,
2006, by and
between CARILLON PROPERTIES, a Washington general partnership
("Landlord"), and
CLEARWIRE CORPORATION, a Delaware corporation ("Tenant").
Landlord and Tenant agree as follows:
1.
Lease Data and Exhibits. The following terms shall have the
meanings
provided in this Section 1 unless otherwise specifically modified
herein:
(a) Development, Building and Premises. "Development" as used in
this
Lease means all of the buildings, grounds, streets, parking areas
and other
improvements comprising the multi-use development known as Carillon
Point and
located in Kirkland, Washington, legally described on Exhibit A-1
and shown on
Exhibit A-2. "Building" as used in this Lease mean Buildings 4000
and 6000 in
the Development; the 4000 Building is comprised of approximately
123,500
rentable square feet, and the 6000 Building is comprised of
approximately 21,356
rentable square feet.
(b) Premises. "Premises" as used in this Lease means that space
consisting of approximately 47,153 net rentable square feet on the
2nd, 3rd and
4th floors of the 4000 Building (the "4000 Premises") and a maximum
of 21,356
net rentable square feet on the 1st and 2nd floors of the 6000
Building (the
"6000 Premises"), as outlined on the floor plan attached hereto as
Exhibit B.
The address of the Premises is 4400 Carillon Point, Kirkland, WA
98033. Landlord
warrants and represents that the rentable and usable area of the
Premises shall
be determined in accordance with the standards set forth in
ANSI/BOMA
Z65.1-1996, as promulgated by the Building Owners and Managers
Association
("BOMA Standard"). Tenant shall have the right, exercisable within
forty-five
(45) days after this Lease is fully executed, to remeasure the
Premises under
the BOMA Standard, within such forty-five (45) day period. In the
event that
such remeasurement of the Premises by Tenant indicates that the
square footage
measurement prepared by Landlord produces a square footage number
in excess of
or lower than three percent (3%) of the square footage number
prepared by
Tenant, then Landlord, Tenant, and their respective architects
shall meet and
use good faith efforts to agree upon the square footage of the
Premises. If
Landlord and Tenant are unable to agree upon the square footage of
the Premises
within thirty (30) days after receipt of Tenant's remeasurement,
then the
parties shall mutually select a third architect to measure the
Premises using
the BOMA Standard and the measurement of the third architect shall
be conclusive
and controlling. Any payments due to Landlord from Tenant based
upon the amount
of square feet contained in the Premises shall be proportionally,
retroactively
and prospectively reduced or increased, as appropriate, to reflect
the number of
square feet agreed to by Landlord and Tenant pursuant to the
provisions of this
paragraph.
(c) Space Pocket. As of the Commencement Date, Tenant is electing
to
lease only one full floor of the 6000 Building, which is
approximately 10,678
rentable square feet. The remainder of the 6000 Premises ("Pocket
Space") shall
be reserved for Tenant and no Basic Rent or Additional Rent shall
be due with
respect to the Pocket Space until the earlier of (i) the date
Tenant occupies
the Pocket Space or (ii) the first day of month thirteen (13) of
the Term.
Tenant may elect to occupy the Pocket Space in one-half floor
increments upon
written notice to Landlord ("Tenant's Election Notice") specifying
which portion
of the Pocket Space Tenant desires to occupy (the "Elected Space").
This Lease
shall become effective as to the Elected Space ten (10) business
days after the
date of Tenant's Election Notice and the Basic Rent and Tenant's
Pro Rata Share
shall be adjusted accordingly as of such date. Prior to the first
day of the
thirteenth (13th) month of the Term, Tenant shall not use, occupy
or store any
furniture or equipment in any portion of the Pocket Space that
Tenant has not
elected to lease.
(d) Tenant's Pro Rata Share. Tenant's Pro Rata Share of the
4000
Building is 38.18%. Tenant's Pro Rata Share of the 6000 Building
shall be
calculated by dividing the rentable square feet of the Premises
leased by Tenant
by the rentable square feet of the Building, as each may be
reasonably
determined from time to time by Landlord, in accordance with BOMA
International
Standards. As of the first day of the thirteenth (13th) month of
the Term,
Tenant's Pro Rata Share of the 6000 Building shall be 100%.
(e) Building's Pro Rata Share of the Development Common Areas.
The
4000 Building's Pro Rata Share of the Development is 20.93%, and
the 6000
Building's Pro Rata Share of the Development is 3.62%, calculated
by dividing
the rentable square feet of the Building by the rentable square
feet of all
buildings in the Development (and Landlord shall include a
reasonable portion of
rentable square feet for the hotel and marina), as each may be
reasonably
determined from time to time by Landlord, in accordance with BOMA
International
Standards.
(f) Term. Commencement and Expiration Dates. The term of this
Lease
(the "Term") shall commence on the earlier of: (i) October 10, 2006
or (ii)
sixty (60) days following the full execution of this Lease, (the
"Commencement
Date"), and expiring eighty seven (87) months thereafter (the
"Expiration
Date"), unless earlier terminated as provided herein.
<PAGE>
(g) Basic Rent.
For
the 4000 Premises Tenant shall pay Basic Rent as follows:
(i) From the Commencement Date and continuing for a period of
six
(6) months, Tenant shall pay monthly Basic Rent of Zero and 00/100
Dollars
($0.00) per month based upon S0.00 per rentable square foot of the
Premises,
which represents a rent abatement equal to $136,350.75 per
month.
(ii) From the seventh (7th) month through the twelfth (12th)
month Tenant shall pay monthly Basic Rent of One Hundred Thirty Six
Thousand
Three Hundred Fifty and 75/100 Dollars ($136,350.75) per month
based upon $34.70
per rentable square foot of the Premises.
(iii) From the thirteen (13th) month through the twenty fourth
(24th) month Tenant shall pay monthly Basic Rent of One Hundred
Forty Thousand
Two Hundred Eighty and 18/100 DOLLARS ($140,280.18) per month based
upon $35.70
per rentable square foot of the Premises.
(iv) From the twenty fifth (25th) month through the thirty
sixth
(36th) month Tenant shall pay monthly Basic Rent of One Hundred
Forty-Four
Thousand Two Hundred Nine and 59/100 DOLLARS ($144,209.59) per
month based upon
$36.70 per rentable square foot of the Premises.
(v) From the thirty seventh (37th) month through the forty
eighth
(48th) month Tenant shall pay monthly Basic Rent of One Hundred
Forty-Eight
Thousand One Hundred Thirty-Nine and 01/100 DOLLARS ($148,139.01)
per month
based upon $37.70 per rentable square foot of the Premises.
(vi) From the forty ninth (49th) month through the sixtieth
(60th) month Tenant shall pay monthly Basic Rent of One Hundred
Fifty-Two
Thousand Sixty-Eight and 43/100 DOLLARS ($152,068.43) per month
based upon
$38.70 per rentable square foot of the Premises.
(vii) From the sixty first (61st) month through the seventy
second (72nd) month Tenant shall pay monthly Basic Rent of One
Hundred
Fifty-Five Thousand Nine Hundred Ninety-Seven and 84/100 DOLLARS
($155,997.84)
per month based upon $39.70 per rentable square foot of the
Premises.
(viii) From the seventy third (73rd ) month through the eighty
seventh (87th) month Tenant shall pay monthly Basic Rent of One
Hundred
Fifty-Nine Thousand Nine Hundred Twenty-Seven and 26/100 DOLLARS
($159,927.26)
per month based upon $40.70 per rentable square foot of the
Premises.
Tenant has elected to receive the abatement of Basic Rent for the
4000
Premises during the fourth (4th) through the sixth (6th) month of
the Term.
Therefore, the amount of Eleven Thousand Five Hundred Eighty and
62/100 Dollars
($11,580.62) will be added to the monthly Basic Rent due during
months thirty
seven (37) through eighty seven (87) of the Term.
For
the 6000 Premises Tenant shall pay Basic Rent as follows:
(i) From the
Commencement Date and continuing for a period of six
(6) months, Tenant shall pay monthly Basic Rent of Zero and 00/100
Dollars
($0.00) per month based upon $0.00 per rentable square foot of the
Premises,
which represents a rent abatement equal to $28,474.67 per
month.
(ii) From the seventh (7th) month through the twelfth (12th)
month Tenant shall pay monthly Basic Rent of Twenty-Eight Thousand
Four Hundred
Seventy-Four and 67/100 Dollars ($28,474.67) per month based upon
$32.00 per
rentable square foot of the Premises; provided that, such Basic
Rent shall be
adjusted if Tenant elects to lease Elected Space pursuant to
subparagraph 1(c)
above.
(iii) From the thirteenth (13th) month through the twenty
fourth
(24th) month Tenant shall pay monthly Basic Rent of Fifty-Eight
Thousand Seven
Hundred Twenty-Nine and 00/100 DOLLARS ($58,729.00) per month based
upon $33.00
per rentable square foot of the Premises.
(iv) From the twenty fifth (25th) month through the thirty
sixth
(36th) month Tenant shall pay monthly Basic Rent of Sixty Thousand
Five Hundred
Eight and 67/100 DOLLARS ($60,508.67) per month based upon $34.00
per rentable
square foot of the Premises.
(v) From the thirty seventh (37th) month through the forty
eighth
(48th) month Tenant shall pay monthly Basic Rent of Sixty-Two
Thousand Two
Hundred Eighty-Eight and 33/100 DOLLARS ($62,288.33) per month
based upon $35.00
per rentable square foot of the Premises.
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<PAGE>
(vi) From the forty ninth (49th) month through the sixtieth
(60th) month Tenant shall pay monthly Basic Rent of Sixty-Four
Thousand
Sixty-Eight and 00/100 DOLLARS ($64,068.00) per month based upon
$36.00 per
rentable square foot of the Premises.
(vii) From the sixty first (61st) month through the seventy
second (72nd) month Tenant shall pay monthly Basic Rent of
Sixty-Five Thousand
Eight Hundred Forty-Seven and 67/100 DOLLARS ($65,847.67) per month
based upon
$37.00 per rentable square foot of the Premises.
(viii) From the seventy third (73rd) month through the
eighty seventh (87th) month Tenant shall pay monthly Basic Rent of
Sixty-Seven
Thousand Six Hundred Twenty-Seven and 33//100 DOLLARS ($67,627.33)
per month
based upon $38.00 per rentable square foot of the Premises.
(h) Adjustments to Basic Rent. If Tenant leases less than 100%
of
the 6000 Building during the first twelve (12) months of the Term,
the Basic
Rent for the 6000 Building set forth above shall be adjusted to
reflect the
actual square footage leased. In the event the precise number of
rentable square
feet in the Premises cannot be determined as of the date of this
Lease, the
rentable square feet of the Premises shall be calculated within
thirty (30) days
of Tenant's occupancy, based on the Final Construction Documents
for the
Premises, and as reasonably determined by Landlord in accordance
with BOMA
International Standards. Landlord shall thereafter notify Tenant of
any
adjustments to Basic Rent calculated by multiplying the
recalculated rentable
square feet in the Premises by the per rentable square foot Basic
Rent.
(i) Base Year. Basic Rent includes the Base Amount, which shall
be the Actual Expenses (as defined in Section 7 below) for the 2007
calendar
year (the "Base Year"). In addition to Basic Rent, to the extent
that the Actual
Expenses for each succeeding Operating Year exceed the Base Amount,
Tenant shall
pay its Pro Rata Share of such excess as Additional Rent in the
manner described
in Section 7 below. "Rent" as used in this Lease shall mean Basic
Rent and
Additional Rent.
(j) Prepaid Rent. Tenant has deposited with Landlord, and
Landlord hereby acknowledges receipt of the sum of One Hundred
Sixty-Four
Thousand Eight Hundred Twenty-Five and 42/100 Dollars ($164,825.42)
to be
applied to the Basic Rent for the first month under this Lease for
which Basic
Rent is due.
(k) Letter of Credit. Within ten (10) business days after full
execution of this Lease by Landlord and Tenant, which 10-day period
may be
extended for a reasonable period of time if Tenant has applied for
the Letter of
Credit described in this paragraph and is diligently and in good
faith seeking
the issuance of the Letter of Credit, Tenant shall deliver to
Landlord in the
form of an unconditional and irrevocable standby Letter of Credit,
a security
deposit of in the amount of One Million and No/100 Dollars
($1,000,000.00). The
Letter of Credit shall be drawn and administered pursuant to
Section 34. The
Letter of Credit shall be made in favor of Landlord and shall: (i)
be in form
and substance acceptable to Landlord in Landlord's reasonable
discretion; (ii)
be issued by a national banking association maintaining offices in
the United
States of America acceptable to Landlord in Landlord's reasonable
discretion
(the "Bank"); (iii) be available for draw by Landlord at an office
of the Bank
located in the Seattle area in the State of Washington; (iv) be
governed by the
International Standby Practices set by the International Chamber of
Commerce;
(v) provide that Landlord shall be entitled to draw upon the Letter
of Credit
upon demand, without prior notice to Tenant, upon presentation to
the Bank of
the Letter of Credit and a statement by Landlord that Tenant is in
uncured
default under this Lease, but without any other evidence or
certificate of the
basis for the draw; (vi) permit one draw of the entire amount or
partial
drawings; (vii) have an initial expiration date no earlier than the
first
anniversary of the date of its issuance and shall provide for its
automatic
renewal from year to year unless terminated by Bank by notice to
Landlord given
not less than sixty (60) days prior to its expiration date; (viii)
have a final
expiration date following all renewals no earlier than sixty (60)
days following
the end of the Term; and (ix) be transferable and any applicable
transfer fees
shall by paid for by Tenant. Timely delivery of the Letter of
Credit shall, at
Landlord's election, (1) be treated as a condition subsequent to
the
effectiveness of this Lease such that this Lease shall be voidable
by Landlord
by notice to Tenant if timely delivery of the Letter of Credit does
not occur or
(2) be treated by Landlord as a default (with no cure right
available to Tenant)
under this Lease. If Landlord elects to treat the failure to
deliver the Letter
of Credit in a timely manner as an uncured default, Landlord may
pursue all
available rights and remedies, including the right to specific
performance.
(l) Security Deposit. Tenant has deposited with Landlord, and
Landlord hereby acknowledges receipt of, the sum of Four Hundred
Thirty-Eight
Thousand One Hundred Forty-Four and 39/100 DOLLARS ($438,144.39)
consisting of
two months of Basic Rent (the 24th month's Rent and the 87th
month's Rent) to be
applied and used pursuant to Section 34.
(m) Rent Abatement. If at any time during the Term there is an
uncured default in payment of Basic Rent for either the 4000
Premises or the
6000 Premises, the abated rent with respect to the 4000 Premises
and the 6000
Premises for months 1-6 of the Term shall become immediately due
and payable
which rent shall have been amortized over the Term at a rate of
eight percent
(8%) per annum.
(n) Exhibits. Landlord and Tenant agree that this Lease is
further subject to the provisions of the attached Exhibits which
are listed
below. The provisions of the Exhibits are understood to be an
integral portion
of this Lease.
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<PAGE>
Exhibit A-1 -
Legal and
Development Description
Exhibit A-2 -
Site Layout
Exhibit B - Premises Floor Plan
Exhibit C - Tenant Improvements
Exhibit D - Additional Provisions
Exhibit E - Parking Agreement
Exhibit F - Subordination, Non
Disturbance and Attornment Agreement
Exhibit G - Landlord's Mortgagee's form
of Tenant Estoppel Certificate
2. Premises. Landlord hereby leases to Tenant and Tenant hereby
leases
from Landlord upon the terms and conditions herein set forth
herein, the
Premises together with the non-exclusive rights of ingress and
egress over the
Building Common Areas and the Development Common Areas, all as
shown on Exhibit
A-2 below.
3. Rent. Tenant shall pay Landlord without notice the Rent, and
any
other payments due hereunder, from and after the Commencement Date,
without
deduction or offset in lawful money of the United States of America
in advance
on or before the first day of each month (or at other dates
specified in this
Lease) during the Term at Landlord's Notice Address set forth on
the signature
page, or to such other party or at such other place as Landlord may
hereafter
from time to time designate in writing. Rent for any partial month
at the
beginning or end of the Term shall be prorated.
4. Construction of Tenant Improvements.
With respect to the 4000 Premises, Landlord shall provide to Tenant
a
total Tenant Improvement Allowance, including the Plan Allowance,
of Nine
Hundred Ninety Nine Thousand Eighty Five and 50/100 Dollars
($999,085.50).
With respect to the 6000 Premises, Landlord shall provide to Tenant
a
total Tenant Improvement Allowance, including the Plan Allowance,
of Five
Hundred Sixty Six Thousand Three Hundred Sixty Seven and 75/100
Dollars
($566,367.75).
All Improvements shall be designed and constructed pursuant to
Exhibit
C.
5. Uses.
(a) General Use. The Premises shall be used only for general
offices, including without limitation, in support of the sales and
service of
wireless communication services and equipment and ancillary,
incidental purposes
which are consistent with applicable zoning and the operation of a
first class
building (the "Permitted Use") and for no other business or other
purpose
without the prior written consent of Landlord, which consent shall
not be
unreasonably withheld. No act shall be done in or about the
Premises, the
Building Common Areas or the Development Common Areas that is
unlawful or that
will increase the Landlord's then existing rate of insurance,
unless Tenant pays
all of such increases. Tenant shall not commit, or allow to be
committed, any
waste upon the Premises, or any public or private nuisance or other
act or thing
that disturbs the quiet enjoyment of any other tenant in the
Building. Tenant
shall not, without written consent of Landlord, use any apparatus,
machinery or
device in or about the Premises, other than Tenant's Generator as
provided in
Exhibit D of this Lease, that will cause any substantial noise,
vibration or
fumes or disturb the quiet enjoyment of any other tenant in the
Building. Tenant
shall observe such reasonable and nondiscriminatory rules and
regulations
concerning Tenant's use, operations, or occupancy of the Premises,
the Building
Common Areas, or the Development Common Areas, as may be adopted by
Landlord
from time to time and made available to Tenant by written notice,
so long as the
same are not inconsistent with this Lease. Tenant, at its own
expense, shall
comply with all laws, rules, orders, regulations and requirements
of any
federal, state, county or local governmental authority
(collectively,
"Requirements") which impose any duty on Landlord or Tenant that
arise
exclusively from Tenant's use, operations, or occupancy of the
Premises,
including the Requirements of the Americans with Disabilities Act
("ADA").
Tenant shall indemnify, defend and hold Landlord harmless from any
liabilities,
damages, obligations, losses, claims, actions, costs or expenses,
including
attorneys' and other professional fees, arising from any violation
of the
Requirements by Tenant or its officers, partners, members,
employees,
contractors, or agents. Landlord represents and warrants to Tenant
that as of
the Commencement Date, to Landlord's actual knowledge, the Premises
shall be in
material compliance with ADA Requirements.
6. Hazardous Materials. Tenant, its officers, partners,
members,
employees, contractors, or agents shall not cause or permit the
escape, disposal
or release of any hazardous substances or materials on or in the
Development,
the Building or the Premises. Tenant, its officers, partners,
members,
employees, contractors, or agents shall not store or use such
hazardous
substances or materials in any manner not sanctioned by law or by
the highest
standards prevailing in the industry for the storage and use of
such hazardous
substances or materials, nor bring into the Development any such
hazardous
substances or materials, except in amounts which are not subject to
regulation.
Without limitation, hazardous substances or materials shall include
those
described in the Comprehensive Environmental Response, Compensation
and
Liability Act of 1980, as amended, 42 U.S.C. Section 9601 et seq.,
any
applicable state or local laws and the regulations adopted
under
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<PAGE>
these acts. If any lender or governmental agency shall ever require
testing to
ascertain whether or not there has been any release of hazardous
substances or
materials by Tenant, its employees, agents or contractors, then the
reasonable
costs thereof shall be reimbursed by Tenant to Landlord upon demand
if such
requirement applies to the Premises, a release of hazardous
substance or
materials is found in such testing and such release was caused by
Tenant or its
officers, partners, members, employees, contractors, or agents. In
addition,
Tenant shall execute affidavits, representations and the like from
time to time
at Landlord's request concerning Tenant's best knowledge and belief
regarding
the presence of hazardous substances or materials on the Premises.
In all
events, Tenant shall indemnify Landlord in the manner elsewhere
provided in this
Lease from any escape, disposal or release by Tenant, its officers,
partners,
members, employees, contractors, or agents of hazardous substances
or materials
on the Premises, the Building or the Development. The covenants and
indemnities
contained in this Section 6 shall survive the expiration or earlier
termination
of the Term.
(a) Landlord's Right to Cure. After notice to Tenant and a
reasonable
opportunity for Tenant to effect such compliance, Landlord may, but
is not
obligated to, enter upon the Premises and take such actions and
incur such costs
and expenses to effect such compliance as it deems advisable to
protect its
interest in the Premises and the Building. However, Landlord shall
not be
obligated to give Tenant notice and an opportunity to effect
compliance if: (i)
such delay might result in material adverse harm to Landlord or the
Premises,
Building or Development, or (ii) an emergency exists. Whether or
not Tenant has
actual knowledge of the release of hazardous substances or
materials on the
Premises, the Building or Development caused or otherwise resulting
from
Tenant's use, operations or occupancy of the Premises, Tenant shall
reimburse
Landlord for the full amount of all costs and expenses incurred by
Landlord in
connection with such compliance activities, and such obligation
shall continue
even after the expiration or earlier termination of this Lease.
Tenant shall
notify Landlord immediately of any emission, disposal or release of
any
hazardous substances or materials on the Premises.
(b) Landlord's Release. Landlord represents and warrants to
Tenant
that as of the Commencement Date, to Landlord's actual knowledge,
there are no
hazardous substances on, in, or under the Premises and Landlord has
no intent to
bring any hazardous substances on, in or under the Premises. Tenant
shall not be
liable for, and Landlord hereby releases Tenant, its officers,
partners, members
and employees from all losses, costs, claims, liabilities and
damages (including
attorneys' and consultants' fees) of every type and nature, arising
out of or in
connection with any hazardous substances or materials present on or
before the
Commencement Date on or about the Premises, the Building or the
Development, or
the violation of any Requirements relating to such hazardous
substances or
materials, except to the extent that any of the forgoing results
from the
release or emission of hazardous substances or materials by Tenant,
its
officers, partners, members, employees, contractors, affiliates, or
agents.
(c) Third Parties. If any hazardous substances or materials
(other
than hazardous substances spilled into the Carillon Point Marina)
are used,
disposed of or otherwise occurs within the Premises, the Building,
or the
Development due to an act or omission of a third party (i.e., a
party other than
described in the Tenant and Landlord indemnifications set forth
above), then all
costs of cleanup, repair, remediation and litigation shall be
treated as an
operating expense for which Tenant shall pay its Pro Rata Share,
but there shall
be a credit against such operating expenses to the extent Landlord
receives
compensation or insurance from the third party or insurer for such
loss or
damage.
(d) Complete Agreement. This Section 6 constitutes the entire
agreement of Landlord and Tenant regarding hazardous substances and
materials.
No other provisions of the Lease shall apply thereto.
7.
Additional Rent.
(a) Tenant Payment. From and after January 1, 2008, to the extent
that
the Actual Expenses for a calendar year exceeds the Base Amount,
Tenant shall
pay its Pro Rata Share of such excess as Additional Rent.
(b) Definitions.
(1) "Actual Expenses" shall mean the actual expenses paid or
incurred by Landlord during any Operating Year for the Building
Operating
Expenses, the Building's Pro Rata Share of the Development Common
Area Expenses,
and Real Property Taxes.
(2) "Base Amount" shall mean the Actual Expenses for the Base
Year.
(3) "Building Operating Expenses" shall mean all expenses paid
or
incurred by Landlord for maintaining, operating and repairing the
Building and
the personal property used in conjunction therewith, including,
without
limitation: the costs of refuse collection, water, sewer,
electricity, gas and
other utilities; supplies; janitorial and cleaning services;
interior and
exterior window washing; plant maintenance; services of independent
contractors;
compensation (including employment taxes and fringe benefits) of
all persons who
perform duties in connection with the operation, maintenance and
repair of the
Building; insurance deductible payments and premiums on insurance
as Landlord in
its sole discretion decides to carry; licenses, permits and
inspection fees;
management fees not to exceed market rates, but in no event greater
than five
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<PAGE>
percent (5%) of gross revenues; legal and accounting expenses; the
amortized
amount of capital improvements constructed after completion of the
Building
determined by dividing the capital improvement costs by the useful
life of the
capital improvements that Landlord reasonably determines will
preserve the
Building as a Class A office building; Maintenance Reserves, costs
arising from
any Requirements requiring changes to the Building, including,
without
limitation, the ADA; and any other expense or charge whether or not
hereinabove
described, which in accordance with generally accepted accounting
and management
practices would be considered an expense of maintaining, operating
or repairing
the Building, subject to the Building Operating Expense
Exclusions:
(A) costs to replace the foundation and structural portions
of the exterior walls and roof of the Building, or to comply with
any
Requirement applicable to the Building or the Development Common
Areas prior to
the date of this Lease;
(B) payments of principal and interest charges incurred on
debt, or depreciation expenses;
(C) the wages and benefits of any employee who does not
devote substantially all of his or her time to the Development
unless such wages
and benefits are appropriately prorated:
(D) costs of any items for which Landlord is entitled to
receive an unqualified reimbursement from insurance proceeds, from
a tenant, or
from any third party;
(E) legal fees and costs, settlements, judgments or awards
arising out of negotiations or disputes with any other tenant or
potential
tenant of the Building;
(F) marketing costs, brokerage fees, leasing commissions,
legal fees, advertising and promotional expenses specifically
designed for
marketing and letting space within the Building;
(G) costs of electrical, heating, cooling and combined
utility services to the extent that such services are separately
metered to a
premises and paid directly by such tenant; and
(H) any item of expense included in the Development Common
Area Expenses or Real Property Taxes.
(4) "Development Common Areas" shall mean the areas in the
Development other than the buildings, the parking garages, the
hotel and the
marina.
(5) "Development Common Area Expenses" shall mean all expenses
paid or incurred by Landlord for maintaining, operating and
repairing the
Development Common Areas and the personal property used in
conjunction
therewith, including, without limitation: the cost of maintaining
the asphalt
drives and parking areas: refuse collection, water, sewer,
electricity, gas and
other utilities; supplies; janitorial and cleaning services;
landscape
maintenance; services of independent contractors; compensation
(including
employment taxes and fringe benefits) of all persons who perform
duties in
connection with the operation, maintenance and repair of the
Development Common
Areas; insurance deductibles and premiums on insurance which
Landlord in its own
discretion decides to carry; licenses, permits and inspection fees;
management
fees; legal and accounting expenses; amortization of capital
improvements
constructed after completion of the Development determined by
dividing the
capital improvement costs by the useful life of the capital
improvements that
Landlord reasonably determines will preserve the Development and
the Development
Common Areas as a Class A mixed-use complex; costs arising from any
Requirements
requiring changes in the Development or rearrangements of the
Development Common
Areas, including, without limitation, costs of compliance with the
ADA; and any
other expense or charge whether or not hereinafter described, which
is in
accordance with generally accepted accounting and management
practices would be
considered an expense of maintaining, operating or repairing the
Development
Common Areas, subject to the Development Common Area Expense
Exclusions:
(A) costs to replace the foundation and structural portions
of the exterior walls and roof of a building in the Development, or
to comply
with any Requirement applicable to the Development prior to the
date of this
Lease;
(B) payments of principal and interest charges incurred on
debt, or depreciation expenses;
(C) the wages and benefits of any employee who does not
devote substantially all of his or her time to the Development
unless such wages
and benefits are appropriately prorated;
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<PAGE>
(D) costs of any items for which Landlord is entitled to
receive an unqualified reimbursement from insurance proceeds, from
a tenant, or
from any third party;
(E) legal fees and costs, settlements, judgments or awards
arising out of negotiations or disputes with any other tenant or
potential
tenant of the Development;
(F) marketing costs, brokerage fees, leasing commissions,
legal fees, advertising and promotional expenses specifically
designed for
marketing and letting space within the Development;
(G) costs of electrical, heating, cooling and combined
utility services to the extent that such services are separately
metered and
paid directly;
(H) all capital expenditures including without limitation,
(i) the original investment in capital improvements, i.e., upon the
initial
construction of the Premises and Building, and (ii) improvements
and
replacements, to the extent capitalized on Landlord's records,
shall be included
only to the extent of a reasonable depreciation or amortization
(including
interest accruals commensurate with Landlord's interest costs);
(I) costs incurred to benefit (or as a result of) a specific
tenant or items and services selectively supplied to any specific
tenant;
(J) expenses for the defense of Landlord's title to the
Premises and Building;
(K) charitable or political contributions;
(L) costs of improving or renovating space for a tenant or
space vacated by a tenant;
(M) expenses paid directly by Tenant for any reason (such as
excessive utility use);
(N) any repair, rebuilding or other work necessitated by
condemnation, fire, windstorm or other insured casualty or
hazard;
(O) any other amounts as a result of Landlord's violation or
failure to comply with any governmental regulations and rules or
any court
order, decree or judgment;
(P) costs of decorating, redecorating, or special cleaning
or other services not provided on a regular basis to tenants of the
Premises and
Building;
(Q) any charge for Landlord's income taxes, excess profit
taxes, franchise taxes or similar taxes on Landlord's business;
(R) any increase in insurance premium to the extent that
such increase is caused or attributable to the use, occupancy of
another tenant;
(S) any operating expense representing an amount paid to a
related corporation, entity or person which is in excess of the
among which
would be paid in the absence of such relationship; and
(T) any operating expense, cost or fee incurred arising from
the Carillon Point Marina.
(6) Any item of expense included in Building Operating Expenses
or Real Property Taxes.
(7) "Estimated Expenses" shall mean Landlord's estimate of
Actual
Expenses for a Operating Year minus the Base Amount multiplied by
Tenant's Pro
Rata Share, to be given by Landlord to Tenant pursuant to Section
7(c) below.
(8) "Maintenance Reserves" shall mean an amount established for
the purpose of paying for repairs, maintenance and replacements to
the Building
systems in the Building or the Premises incurred on a periodic, but
less
frequent than annual, basis.
(9) "Occupancy Adjustment" shall mean that in the event the
average occupancy level of the Building for any Operating Year,
including the
Base Year, was or is not one hundred percent (100%) of full
occupancy, then the
Actual Expenses that vary with occupancy rates (including, for
example,
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<PAGE>
water, power, HVAC and janitorial), for such year shall be
proportionately
adjusted by Landlord to reflect those costs which would have
occurred had the
Building been one hundred percent (100%) occupied during such year.
Landlord
shall use commercially reasonable efforts to minimize Actual
Expenses incurred
with respect to any vacant space in the Building. In no event shall
Landlord be
entitled to recover more than one hundred percent (100%) of Actual
Expenses
actually paid by Landlord.
(10) "Operating Year" shall mean January 1 through December 31
of
each calendar year of the Term.
(11)"Real Property Taxes" shall mean: (i) the total amount of
all
real and personal property taxes, assessments, including omit tax,
and other
governmental impositions and charges of every kind and nature, now
or hereafter
imposed, including surcharges with respect to the Development
(excluding the
hotel and the marina) or the use, occupancy or possession thereof;
and (ii)
taxes on Tenant's Personal Property (as defined in Section 13).
which have not
been paid by Tenant directly to the taxing authority, as well as
any taxes
levied or assessed in addition to, in lieu of, or as a substitute
for, in whole
or part, taxes now levied or assessed or any other tax upon owning,
leasing or
rents receivable by Landlord from the Development (excluding the
hotel and
marina), but not including any federal or state or local income tax
or
inheritance, transfer, gift, succession or franchise taxes imposed
on Landlord,
all determined with respect to the period for which such taxes are
(or would
have been if timely levied) due and payable. The Real Property
Taxes for the
Development (excluding the hotel and marina) shall be allocated
amongst the
buildings in the Development (excluding the hotel and marina) on a
per rentable
square foot basis. All assessments shall be paid by Landlord and
charged to
Tenant in installments over the longest permitted term.
(c) Manner of Payment. Tenant's payment of Additional Rent shall
be
made as follows:
(1) Within ninety (90) days of the commencement of each
Operating
Year following the Base Year, Landlord shall furnish Tenant a
written statement
of the Estimated Expenses for such Operating Year and a calculation
of the
twelve (12) monthly installments of Additional Rent to be paid by
Tenant and the
deficit, if any, for the first three (3) months of such Operating
Year. If at
any time or times during a Operating Year it reasonably appears to
Landlord that
the amount of Actual Expenses will vary from the Estimated Expenses
by more than
three percent (3%) on an annual basis, then Landlord by written
notice to Tenant
may revise the Estimated Expenses for such Operating Year and the
monthly
installments of Additional Rent made by Tenant for the balance of
such Operating
Year shall be thereafter based on such revised Estimated
Expenses.
(2) Within ninety (90) days after the end of each Operating
Year,
or as soon thereafter as practicable, Landlord shall provide a
statement (the
"Statement") to Tenant showing: (a) the amount of Actual Expenses,
with a
listing of amounts of Actual Expenses in the major categories of
Building
Operating Expenses, Development Common Area Expenses and Real
Property Taxes,
(b) any amount paid by Tenant toward such Additional Rent during
such Operating
Year on an estimated basis, and (c) any revised estimate of
Tenant's obligations
for Additional Rent for the current Operating Year.
(3) If the Statement shows Tenant's estimated payments were
less
than Tenant's Actual Expenses, less the Base Amount, then Tenant
shall pay the
difference. If the Statement shows an increase from Tenant's
Estimated Expenses,
then Tenant shall pay the difference between the new and former
estimates, for
the period from January 1 of the current Operating Year through the
month in
which the Statement is sent. Tenant shall make such payments within
thirty (30)
days after Landlord sends the Statement.
(4) If the Statement shows the Tenant's Estimated Expense
payments exceeded Tenant's Actual Expenses, less the Base Amount,
then Tenant
shall receive a credit for the difference against payments of Rent
next due. If
the Term shall have expired and no further Rent shall be due,
Tenant shall
receive a refund of such difference, within thirty (30) days after
Landlord
sends the Statement.
(5) So long as Tenant's obligations hereunder are not
materially
adversely affected thereby, Landlord reserves the right to
reasonably change,
from time to time, the manner or timing of the foregoing payments.
In lieu of
providing one (1) Statement covering Building Operating Expenses,
Real Property
Taxes, and Development Common Area Expenses, Landlord may provide
separate
statements, at the same or different times. 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 Building Operating Expenses, Real Property
Taxes, or
Development Common Area Expenses.
(d) Pro Ration. If the Term ends other than on December 31,
Tenant's
obligations to pay Estimated Expenses and actual amounts towards
Additional Rent
for such final Operating Year shall be prorated to reflect the
portion of such
year included in the Term. Such pro ration shall be made by
multiplying (i) the
Base Amount (as stated on an annual basis) and (ii) the total
estimated or
actual Additional Rent for such Operating Year, by a fraction
wherein the
numerator is the number of days of the Term during such Operating
Year and the
denominator is 365 days.
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<PAGE>
(e) Landlord's Records. The determination of Additional Rent shall
be
made by Landlord. Landlord or its agents shall keep records for
three (3) years
after delivery of a Statement, in reasonable detail, showing all
expenditures
made or items enumerated in the Statement.
(f) Audit Rights. Tenant may, at Tenant's sole cost and expense,
cause
a Qualified Person (defined below) to inspect Landlord's records.
Such
inspection, if any, shall be conducted no more than once each year,
during
Landlord's normal business hours within twelve (12) months after
receipt of
Landlord's Statement of Actual Expenses for the previous year, upon
first
furnishing Landlord at least twenty (20) calendar days prior
written notice. Any
errors disclosed by the review shall be promptly corrected by
Landlord;
provided, however, that if Landlord reasonably disagrees with any
such claimed
errors, Landlord shall have the right to cause another review to be
made by an
auditor of Landlord's choice. In the event the results of the
review of records
(taking into account, if applicable, the results of any additional
review caused
by Landlord) reveal that Tenant has overpaid obligations for a
preceding period,
the amount of such overpayment shall be credited against Tenant's
subsequent
installment of Basic Rent, Additional Rent or other payments due to
Landlord
under the Lease. In the event that such results show that Tenant
has underpaid
its obligations for a preceding period, the amount of such
underpayment shall be
paid by Tenant to Landlord with the next succeeding installment of
Additional
Rent. If the Actual Expenses for any given year are overstated by
more than 5%,
Landlord shall reimburse Tenant for its reasonable audit expenses,
not to exceed
Two Thousand and No/100 Dollars ($2,000.00) per audit. For purposes
of this
subparagraph, the term "Qualified Person" means an accountant or
other person
experienced in accounting for income and expenses of office
projects, who is
engaged solely by Tenant on terms which do not entail any
compensation based or
measured in any way upon any savings in Additional Rent or
reduction in Actual
Expenses achieved through the inspection process described in this
subparagraph.
8.
Personal Property Taxes. Tenant shall pay, prior to delinquency,
all
personal property taxes payable with respect to all of Tenant's
Personal
Property as defined in Section 13 below, located on the Premises or
in the
Building and promptly upon request of Landlord shall provide
written proof of
such payment. "Personal Property Taxes" shall include all property
taxes
assessed against Tenant's Personal Property, whether assessed as
real or
personal property.
9.
Taxes on Rent. The Rent stated herein and any payment provided for
in
this Lease is exclusive of any sales, business and occupation or
other tax or
charge upon, based upon or measured by rents payable to Landlord
hereunder, the
number of employees of Tenant, or any other tax which is not
currently in
effect. If during the Term any such tax or other charge becomes
payable by
Landlord to any governmental authority, the Rent hereunder shall be
deemed
increased by such amount upon twenty (20) days' written notice by
Landlord to
Tenant. The foregoing does not apply to federal, state, or local
income,
inheritance, gift, succession or franchise taxes payable by
Landlord.
10.
Maintenance and Other Services Provided by Landlord.
(a) Landlord's Maintenance. Landlord will maintain and repair
the
foundation, exterior walls and structural portions of the roof of
the Building,
the other buildings in the Development in a manner customary for
Class A office
buildings in the Greater Seattle area. In addition, Landlord will
provide,
maintain, replace the Building systems, including without
limitation:
electricity for lighting and standard power usage office machines;
water and
sewer; security system; and mechanical, cooling, heating, and
ventilation, at
such times as the Landlord normally furnishes this service to other
tenants of
the Building, but in no event less than normal business hours, and
at such
temperatures and in such amounts as are reasonably standard for
Class A office
buildings in the Greater Seattle area. All services including
elevator, Building
access through the security system, water, and parking, but not
including the
cooling, heating, and ventilation systems, shall be available at
all times.
Normal business hours shall be from 7:00 a.m. to 6:00 p.m. on
weekdays, and 8:00
a.m. to noon on Saturdays, excluding legal holidays. Landlord shall
also provide
daily (i.e., five days per week) janitorial service, lamp
replacement for
building standard lighting, toilet room supplies and perimeter
window washing,
all with reasonable frequency customary to Class A office buildings
in the
Greater Seattle area. Unless charged to individual tenants
(including the
Tenant) as hereinafter provided, the costs of such Landlord
services shall be
included as "Building Operating Expenses" or "Development Common
Area Expenses",
as applicable, and paid as Additional Rent pursuant to Section
7.
(b) Interruption of Services. Except to the extent that loss or
damage
arise out of or in any way are connected with, or result from the
gross
negligence, act or omission of Landlord, its officers, agents,
contractors or
employees, Landlord shall not be liable for any loss or damage
caused by or
resulting from any variation, interruption or failure of such
services due to
any cause whatsoever, and no temporary interruption or failure of
such services
incident to the making of repairs, alterations or improvements or
due to
accident or strike conditions shall be deemed as an eviction of
Tenant or
relieve Tenant from any of Tenant's obligations hereunder. For
those services
within Landlord's reasonable control, Landlord will take
commercially reasonable
steps to correct any interruption of services as soon as
practicable; provided,
however, in the event there is an interruption of utilities or
services caused
by the gross negligence or willful misconduct of Landlord, its
officers, agents,
contractors or employees, which materially affects Tenant's use of
the Premises
for more than forty-eight (48) hours, Tenant's Rent shall be abated
until such
time as the utilities or services are restored.
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<PAGE>
(c) After-hours' HVAC. Standard operating hours for HVAC are 7:00
a.m.
to 6:00 p.m., Monday through Friday and 8:00 a.m. to 12:00 p.m.
Saturday.
Landlord shall provide mechanical, cooling, heating, and
ventilation at times
other than normal business hours upon Tenant's written request and
reasonable
notice to Landlord, and Tenant shall pay the reasonable cost
thereof. For
after-hour use, the Building HVAC need only be operated for half of
each floor
to save energy expense. Presently, the cost to operate the HVAC
during
after-hours is $30.00 per hour for each half of each floor.
(d) Access. Tenant will have access to its Premises 24-hours per
day,
seven days per week via proximity card key access system which
records the time,
date and identification number of all after-hour Building use.
Additionally, the
Development is patrolled by security personnel 24-hours per
day.
(e)
Special Requirements. If Tenant has special mechanical,
cooling,
heating, ventilation, electrical or other requirements, Landlord
shall have the
right to approve any modifications or additions to the existing
Building
systems, in Landlord's sole discretion. The cost of furnishing,
installing,
operating and maintaining such additional equipment and
appurtenances to satisfy
these requirements, including separate meters if requested by
Landlord, shall be
borne by Tenant, with Tenant either paying directly to the utility
if separately
metered or paying to Landlord as Additional Rent, the reasonable
cost of
providing such additional services.
11.
Assignment and Subletting.
(a) Prior Written Consent. Without Landlord's prior written
consent,
which shall not be unreasonably withheld or delayed, Tenant shall
not cause or
permit, directly or indirectly, voluntarily or involuntarily, any
of the
following events (or any amendment to the instrument affecting the
same): (i)
sale, assignment, hypothecation, mortgage, encumbrance, conveyance
or other
transfer of the Lease (or any interest therein); (ii) a sublease of
the Premises
or any portion thereof; or (iii) the use and/or occupancy of the
Premises or any
portion thereof by anyone other than Tenant (individually referred
to as a
"Transfer"). Notwithstanding the foregoing, Tenant's Transfer of
the Premises to
any parent, subsidiary, or affiliate entity, or an entity which
directly or
indirectly, through one or more intermediaries' controls, is
controlled by, or
is under common control with Tenant or any successor-in-interest of
all or
substantially all of the assets or business of Tenant in the market
defined by
the FCC in which the Property is located as a result of merger,
acquisition,
consolidation, non-bankruptcy reorganization, or government action,
or to a
lender in connection with a financing agreement (individually
referred to as an
"Allowed Transfer"), shall not constitute a "Transfer" for the
purpose of this
Lease.
(b) Approval Process. If Tenant desires the consent of Landlord to
a
Transfer, Tenant shall submit to Landlord the items listed below
and Landlord
shall approve or disapprove of Tenant's request within thirty (30)
days after
the date Landlord receives the last of the items listed below:
(1) A copy of the proposed sublease, assignment, or other
transfer agreement at least fifteen (15) business days (but no more
than 180
days) prior to the proposed effective date of such instrument. As a
condition
precedent to any Transfer being effective, the instrument (with
this Lease as an
Exhibit thereto) shall provide that the sublessee or assignee (the
"Transferee")
is bound by all of the provisions, terms, covenants, and conditions
of this
Lease (other than, in the case of a sublease, payment of Rent),
that Tenant (and
all guarantors) shall continue to be and remain liable hereunder
jointly and
severally with the Transferee, and that Landlord's consent to the
Transfer shall
not be deemed a consent to any subsequent Transfer;
(2) A copy of all material changes to or modifications of the
proposed sublease, assignment or other transfer agreement promptly
if and when
made;
(3) An original or a copy of the final sublease, assignment or
other transfer agreement, duly executed and acknowledged by the
Tenant and the
proposed Transferee, at least five (5) business days prior to the
proposed
effective date of such assignment, sublease, or other transfer
agreement; and
(4) Any other items or information Landlord may reasonably
request, including, without limitation, sufficient information to
permit
Landlord to determine acceptability of the financial wherewithal
and character
of the proposed Transferee.
(c) Limitation of Landlord's Withholding of Consent. Landlord
shall
not unreasonably withhold or delay its consent to or approval of
any proposed
Transfer if all of the following conditions are fully
satisfied:
(1) Tenant has not been in default beyond any applicable cure
period in any of its obligations under this Lease during the Term,
and Tenant is
not in default of its obligations under this Lease at the time of
Tenant's
request;
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<PAGE>
(2) The use and occupancy of the Premises by the Transferee
is consistent with applicable zoning, the applicable Requirements,
and is
consistent with the nature of Development as a Class A mixed-use
office, hotel
and retail complex;
(3) The proposed assignment or sublease does not conflict
with or cause Landlord to be in default under any provision of any
other lease
for any other part of the Development;
(4) The Transferee (and its guarantors, if any,) has or have
the financial wherewithal to fully perform the obligations with
respect to the
proposed assignment, sublease or transfer agreement; and
(5) The form and substance of all proposed assignments,
subleases, and transfer documents are consistent with the terms of
this Lease,
and provide that Landlord's consent to the Transfer shall not be
deemed a
consent to any subsequent Transfer.
(d) Allowed Transfer Requirements. For an Allowed Transfer to be
valid
and effective, the following conditions must be fully
satisfied:
(1) Tenant is not in default beyond any applicable cure
period of its obligations under this Lease at the time of Tenant's
request;
(2) Landlord must have received written notice of Tenant's
exercise of its right to enter into an Approved Transfer, including
the name and
address of the Transferee, or the related or successor entity;
(3) Tenant shall have provided Landlord with a copy of the
proposed sublease, assignment or transfer agreement which states
the effective
date of the Allowed Transfer; and
(4) Tenant shall have received no monetary consideration for
the Lease (other than any portion of the sales proceeds allocated
to the Lease
in the transfer of all or substantially all of the assets or
business of
Tenant); and
(5) If Tenant has subleased or assigned this Lease to a
parent, subsidiary or affiliate of Tenant, the Transferee shall
increase the
amount of the Security Deposit to include the cost of any
unamortized leasing
commissions and tenant improvements if so requested by Landlord, in
Landlord's
sole discretion.
(e) Processing Fee. Tenant shall pay Landlord a reasonable fee
to
review the Transfer documentation submitted to Landlord, not to
exceed One
Thousand Five Hundred and No/100 Dollars ($1,500.00), which fee
shall not be
applicable in the event of an Allowed Transfer. Such fee shall
cover the direct
and indirect costs and expenses incurred by Landlord in connection
with such
review, including but not limited to the following: wages,
salaries, and
benefits of Landlord's employees; fees for services rendered and
costs advanced
by architects, engineers, space planners, landscape architects,
construction
managers, attorneys, real estate consultants, and other
professionals; copying
and messenger fees; general and administrative expenses.
(f) Subleasing Profits. Except in the case of an Allowed
Transfer,
fifty percent (50%) of any rent, additional rent, fee or charge
collected from
Assignee in excess of the Rent due under the Lease as described in
Sections 3
and 7, shall be payable to Landlord as it is collected by
Tenant.
(g) Recapture.
(1) Any proposed Transfer shall be subject to Landlord's
right to recapture the space proposed for Transfer (the "Recapture
Space").
(2) If Landlord intends to exercise its right to recapture,
Landlord will give notice of such intent within thirty (30) days
after Landlord
becomes aware that Tenant has made the Recapture Space available
for assignment
or sublease, or within thirty (30) days after Tenant has requested
Landlord's
consent to a proposed Transfer, whichever occurs last, provided
that in the
event that Landlord exercises its right to recapture, Tenant shall
have the
right to withdraw the proposed Transfer by providing notice of such
withdrawal
no later than ten (10) business days after receipt of Landlord's
notice of
exercise of its recapture right in which event Landlord exercise
its right to
recapture shall be null and void.
(3) If Landlord exercises its right to recapture, and Tenant
does not timely withdraw the proposed Transfer, Tenant's right to
occupy and/or
use the Recapture Space shall terminate on the earlier of: the date
Landlord
begins construction of tenant improvements for the new tenant; or
when the lease
between Landlord and the new tenant commences (the "Recapture
Date").
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<PAGE>
(4) If Landlord exercises its right to recapture, and Tenant
does not timely withdraw the proposed Transfer, Tenant's obligation
to pay Rent
for the Recaptured Space shall terminate on the earlier of: the
Recapture Date;
or ninety (90) days after Landlord exercises its right to
recapture.
12.
Care of Premises. Tenant shall keep the Premises in a reasonably
neat,
clean and sanitary condition and shall at all times preserve them
in good
condition and repair, ordinary wear and tear or damage due to
casualty or
condemnation excepted. If Tenant shall fail to do so, and after
expiration of
Tenant's cure period, Landlord may at its option place the Premises
into said
condition and state of repair, and in such case, the Tenant on
demand shall pay
the costs thereof. Tenant shall reimburse Landlord for the cost of
replacing all
broken interior or exterior glass with glass of same or similar
quality. Tenant
shall have no responsibility to perform, repair, maintain or
improve any
Building system serving the Premises which is located outside the
demising walls
of the Premises. Landlord shall perform such work and the cost of
such work
shall be included in Building Operating Expenses and/or Development
Common Area
Expenses, as applicable.
13.
Surrender of Possession. Subject to the terms of Section 16
relating to
damage and destruction, and Section 21 relating to condemnation,
upon expiration
or termination of the Term of this Lease, whether by lapse of time
or otherwise
(including any holdover period), Tenant at its expense shall: (1)
remove
Tenant's personal property which is not attached to the Premises or
the removal
of which will not damage the Premises, including, but not limited
to: wires,
data and voice cabling and appurtenant installations related
thereto including,
without limitation plenums and/or risers (the "Wires"); furniture;
equipment;
inventory, and all other personal property located on the
Premises
(collectively, "Tenant's Personal Property"); (2) repair and
restore the
Premises to a commercially reasonably good condition, reasonable
wear tear, and
casualty events excepted; and (3) promptly and peacefully surrender
the Premises
(including surrender of all Tenant Improvements and/or other
alterations,
additions or improvements installed in the Premises, except
Tenant's Personal
Property that does not become part of the Building). Any of
Tenant's Personal
Property left on the Premises after the expiration or termination
of the Term
shall be deemed to have been abandoned and the property of Landlord
to dispose
of as Landlord deems expedient, and Tenant shall be liable for all
costs
associated with the disposal of such Tenant's Personal Property.
Notwithstanding
the forgoing: (1) Landlord shall have the right, within thirty (30)
days of the
expiration or termination of the Term of this Lease, to notify
Tenant that it
intends to reuse all or any portion of the Wires, and in such event
such Wires
shall remain in the Premises upon surrender; and (2) if the
Premises have been
improved with Non-Standard Items, upon surrender, Tenant shall pay
Landlord an
amount equal to the cost to replace all such Non-Standard Items
with Building
Standard Items, as defined in Section 14 of this Lease, in an
amount as
reasonably determined by Landlord.
14.
Alterations. Other than the Tenant Improvements, Tenant shall make
no
additions, changes, alterations or improvements (collectively,
"Alterations") to
the Premises without the prior written consent of Landlord, which
shall not be
unreasonably withheld or delayed. Notwithstanding the provisions of
the previous
sentence, Tenant shall have the right, after providing at least ten
(10) days'
prior written notice to Landlord, but without the necessity of
obtaining
Landlord's consent, to recarpet, repaint, or to make purely
"cosmetic" or
"decorative" nonstructural Alterations in and to the Premises that
(i) do not
include any Non-Standard Items, as defined below, (ii) are not
readily visible
to the exterior of the Building or the common and public areas
thereof, (iii) do
not adversely affect the electrical, mechanical, fire or life
safety systems
within the Building, (iv) do not require the issuance of a building
permit, and
(v) do not cost in the aggregate more than One Dollar ($1.00) per
square foot
per Lease year. In addition, Tenant shall make no Alternations to
the Premises
which include Non-Standard Items, as defined below, which impact or
involve any
structural components or the exterior design of the Building, or
which require
modification of the electrical or mechanical systems pertaining to
the Building
or the Premises, without the prior written consent of Landlord,
which consent
may be withheld in Landlord's sole discretion.
(a) All Alterations shall be consistent with building standard:
ceiling suspension systems and ceilings; fluorescent light
fixtures; mechanical
cooling, heating and ventilation unit covers; millwork detail;
doors and door
sills; hardware; hard surface floor tile; and base trim and all
materials used
shall be of a quality comparable to those in the Premises and
Building
("Building Standard Items"). Tenant shall submit to Landlord no
later than sixty
(60) days before commencing construction of an Alteration Tenant's
plans and/or
specifications. To the extent any proposed item of an Alteration is
not
consistent with Building Standard Items, Landlord shall advise
Tenant in writing
(collectively, "Non-Standard Items").
(b) In the event that Tenant Alterations require Landlord's
consent,
Tenant shall pay Landlord a reasonable fee, not to exceed
$1,000.00, to review
Tenant's plans and specifications, to inspect the Alterations, and
(if Landlord
requires that the Alterations be performed under Landlord's
supervision) to
supervise the Alterations; such fee shall be no less than the
amount necessary
to cover all direct and indirect costs and expenses incurred by
Landlord in
connection with such review, inspection, and supervision, including
but not
limited to the following: wages, salaries, and benefits of
Landlord's employees;
fees for services rendered and costs advanced by architects,
engineers, space
planners, landscape architects, construction managers, attorneys,
real estate
consultants, and other professionals; copying and messenger fees;
general and
administrative expenses; etc. All Alterations shall be performed in
a good and
workmanlike manner and shall be in accordance with plans and
specifications
approved by Landlord, and Landlord may require that all such
Alterations be
performed under Landlord's supervision. If Landlord consents to
and/or
supervises any such
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<PAGE>
Alterations by Tenant, the same shall not be deemed a warranty as
to the
adequacy of the design, workmanship or quality of materials, and
Landlord hereby
expressly disclaims any responsibility or liability for the same,
except for
Landlord's negligent supervision. Landlord shall under no
circumstances have any
obligation to repair, maintain or replace any portion of the
Alterations.
(c) During the construction of Alterations, Tenant shall maintain
a
safe working environment, including the continuation of all fire
and security
protection devices, if any, previously installed in the Premises by
Landlord.
15.
Entry and Inspection. In recognition of Tenant's proprietary
technology
and sophisticated and sensitive communications equipment, Landlord,
after not
less than three (3) days notice and at reasonable times may enter
the Premises
in the company of Tenant's designated representative for the
purpose of
inspecting the Premises or the Building subject to Tenant's
reasonable security
measures; provided, that such entry shall not materially interfere
with Tenant's
business operations in the Premises; provided further, however, in
the event of
an emergency, Landlord may immediately enter the Premises, without
notice.
During any such entry and inspection by Landlord, Landlord shall
comply with all
requests and procedures of Tenant so as not to interrupt Tenant's
business
operations, the operations of Tenant's customers or subject
Tenant's tangible or
intangible property to any risk. Nothing in this Section shall
impose upon
Landlord any obligation not expressly imposed elsewhere in this
Lease. Landlord
shall have the right at reasonable times to enter the Premises for
the purpose
of showing the Premises to prospective purchasers and lenders and
to prospective
tenants during the period beginning one hundred and eighty (180)
days prior to a
the expiration or sooner termination of this Lease.
16. Damage or
Destruction.
(a) Damage and Repair. In case of damage to the Premises or the
Building by fire or other casualty, Tenant immediately shall notify
Landlord.
(i) If the cost of restoration as estimated by Landlord shall
amount to less than twenty-five percent (25%) of said replacement
value of the
Building and insurance proceeds sufficient for restoration
(including the amount
of any deductibles and coinsurance amounts collected by Landlord as
Building
Operating Expenses) are available, then Landlord shall restore the
Building and
the Premises to the extent that the improvements to the Premises
were either
originally provided by Landlord or insured by Landlord, with
reasonable
promptness, subject to Force Majeure delays and to delays in the
making of
insurance adjustments, and Tenant shall have no right to terminate
this Lease.
(ii) If the Building is damaged by fire or any other cause to
such extent that the cost of restoration, as reasonably estimated
by Landlord,
will equal or exceed twenty five percent (25%) of the replacement
value of the
Building, or if insurance proceeds sufficient for full restoration
(including
the amount of any deductibles and coinsurance amounts collected by
Landlord as
Building Operating Expenses) are unavailable for any reason, then
Landlord, no
later than the sixty (60) days following the date of the damage,
shall give
Tenant a notice of election to either terminate this Lease or to
restore the
Building to the extent that the improvements were either originally
provided by
Landlord or insured by Landlord, in which case this Lease shall
remain in full
force and effect.
(iii) During the period of restoration of the Premises, the
Rent
shall abate for the period during which the Premises are not
suitable for
Tenant's business needs, but in no event longer than 365 days from
the date of
the casualty.
(iv) Notwithstanding subsections (i) and (ii) above, in the
event
the Building is damaged such that it in Landlord's reasonable
opinion it would
take more than three hundred and sixty-five (365) days from the
date of such
damage to restore the Building, then either Landlord or Tenant may
elect to
terminate this Lease in the manner provided herein. Landlord shall
notify Tenant
no later than sixty (60) days following the date of the damage if
Landlord
reasonably concludes the time to complete restoration of the
Building will
exceed 365 days. Landlord may include in such notice that it
desires to
terminate the Lease; provided, however, if the Landlord's notice
does not
include a termination, Tenant may terminate the Lease, by giving
written notice
to the Landlord within ten (10) days thereafter. In the event
either party
elects to terminate the Lease, Tenant shall surrender possession of
the Premises
within a reasonable time thereafter, and the Rent shall be
apportioned as of the
date of Tenant's surrender and any Rent paid for any period beyond
such date
shall be repaid to Tenant. If neither party elects to terminate the
Lease as
provided in this subsection (iv), then Landlord shall restore the
Premises as
described in subsection (ii) above. During the restoration period,
Landlord
shall make available to Tenant as temporary space at fair market
rental (as
defined in Exhibit Dl(b), any vacant space in the Development that
is not
subject to the prior rights of any other tenant.
(b) Business Interruption. No damages, compensation or claim shall
be
payable by Landlord for inconvenience, loss of business or
annoyance arising
from any repair or restoration of any portion of the Premises or
the Building.
Landlord shall use commercially reasonable efforts to affect such
repair
promptly.
(c) Tenant Improvements - Alterations - Tenant's Personal
Property.
Landlord will carry insurance on the Tenant Improvements
constructed pursuant to
Exhibit C. Landlord shall not carry, and Tenant
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<PAGE>
shall be responsible for insurance coverage for any Alterations and
Tenant's
Personal Property. Landlord shall not be obligated, and Tenant
shall repair any
damage thereto or replace the same.
17.
Indemnification.
(a) Tenant's Indemnification. Tenant shall indemnify, hold
harmless
and defend Landlord from and against all liabilities, damages,
obligations,
losses, claims, actions, costs, or expenses, including reasonable
attorneys' and
other professional fees and costs, in conjunction with loss of
life, personal
injury and/or property damage arising out of the occupancy or use
by Tenant of
any part of the Premises or the Development, to the extent caused
by the acts or
omissions of Tenant or its officers, partners, members,
contractors, licensees,
agents, servants, or employees. The foregoing provisions shall not
be construed
to make Tenant responsible for loss, damage, liability or expense
resulting from
injuries to third parties caused by the negligence or willful
misconduct of
Landlord, its officers, partners, members, contractors, licensees,
agents,
servants, or employees or other tenants of the Building. Landlord
shall not be
liable for any loss or damage to persons or property sustained by
Tenant or
other persons, which may be caused by theft, or by any act or
neglect of any
tenant or occupant of the Building or any other third parties as
set forth
herein except as otherwise provided in Section 17(b) below.
(b) Landlords' Indemnification. Landlord shall indemnify, hold
harmless and defend Tenant from and against all liabilities,
damages,
obligations, losses, claims, actions, costs, or expenses, including
reasonable
attorneys' and other professional fees, in conjunction with loss of
life,
personal injury and/or property damage, to the extent caused by the
acts or
omissions of Landlord or its officers, partners, members,
contractors,
licensees, agents, servants, or employees. The foregoing provisions
shall not be
construed to make Landlord responsible for loss, damage, liability
or expense
resulting from injuries to third parties caused by the negligence
or willful
misconduct of Tenant, its agents or employees or other tenants of
the Building.
(c) General Indemnity Provisions. The indemnities in Section 17(a)
and
Section 17(b) above are intended to specifically cover actions
brought by the
indemnifying party's own employees, and with respect to acts or
omissions during
the term of this Lease shall survive termination or expiration of
this Lease.
Such indemnities are specifically and expressly intended to
constitute waivers
by the indemnifying party of its immunity, if any, under
Washington's Industrial
Insurance Act, RCW Title 51, to the extent necessary to provide the
other party
with a full and complete indemnity from claims made by the
indemnifying party
and its employees, to the extent of their negligence. If losses,
liabilities,
damages, liens, costs and expenses covered by either party's
indemnity are
caused by the concurrent negligence of both Landlord and Tenant,
their
employees, agents,
