3131 ELLIOTT AVENUE
OFFICE LEASE
THIS LEASE, made the 29th day of April, 1996 by and between MARTIN
SELIG, whose address is 1000 Second Avenue, Suite 1800, Seattle, Washington,
98104-1048, hereinafter referred to as "Lessor" and Emeritus Corporation,
hereinafter referred to as "Lessee".
1. DESCRIPTION. Lessor in consideration of the agreements contained in
this lease, does hereby lease to Lessee, upon the terms and conditions
hereinafter set forth, that certain space consisting of the agreed upon
square footage of 22,248 (hereinafter referred to as "Premises") situated on
the fifth floor level of the 3131 Elliott Building, 3131 Elliott Avenue, City
of Seattle, State of Washington, 98121. The legal description of which is:
Lots 3 through 11, Block 166 Seattle Tideland: together with that
portion of lots 1 through 5, Block 2, William N. Bell's seventh
addition to the City of Seattle, which lies easterly of Block 166
of Seattle Tidelands.
Suite 500
2. TERM. The term of this lease shall be for a period of one-hundred
twenty (120) months, commencing the date substantial completion or the 1st
day of July, 1996, whichever is later, and ending one-hundred (120) months
thereafter.
In the event the Premises are not ready for occupancy on the date set
forth above, whether occasioned by Lessor or Lessee, the lease term shall be
extended in such a manner as to reflect the delay occasioned by the failure
of the Premises to be ready to occupancy. In no event shall Lessor or Lessee
be liable for any further damages.
3. RENT. Lessee covenants and agrees to pay Lessor rent each month
advance on the first day of each calendar month. Rent shall be computed at
the annual base rental rate of $17.00 per rentable square foot for months
1-60 and $19.00 per rentable square foot for months 61-120. Rent for any
fractional calendar month, at the beginning or end of the term, shall be the
pro rated portion of the rent computed on an annual basis. Lessee will not be
deemed to be in default with respect to the payment of rent unless the same
is not paid when due or within ten (10) days thereafter.
4. CONSIDERATION. As consideration for the execution of this lease,
Lessee has this date paid to Lessor the sum of $0.00, receipt of which is
hereby acknowledged. In the event Lessee fully complies with all the terms
and conditions of this lease, but not otherwise, an amount equal to such sum
shall be credited on the last month's rental on the term of this lease.
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5. USES. Lessee agrees that Lessee will use and occupy said Premises
for general offices and related purposes and for no other purposes.
6. RULES AND REGULATIONS. Lessee and its agents, employees, servants or
those claiming under Lessee will at all times observe, perform and abide by
all of the Rules and Regulations printed on this instrument, or which may be
hereafter promulgated by Lessor, all of which it is covenanted and agreed by
the parties hereto shall be and are hereby made a part of this lease.
7. CARE AND SURRENDER OF PREMISES. Lessee shall take good care of the
Premises and shall promptly make all necessary repairs except those required
herein to be made by Lessor. At the expiration or sooner termination of this
lease,
Lessee, without notice, will immediately and peacefully quit and surrender
the Premises in good order, condition and repair (damage by reasonable wear,
the elements, or fire excepted). Lessee shall be responsible for removal of
all personal property from the Premises, (excepting fixtures being that which
is attached to the Premises, and property of the Lessor) including, but not
limited to, the removal of Lessee's communication cabling, telephone
equipment and signage. Lessee shall be responsible for repairing any damage
to the Premises caused by such removal. If Lessee fails to remove and restore
the Premises at lease expiration, then Lessor shall have the right to remove
said property and restore the Premises and Lessee shall be responsible for
all costs associated therewith. Lessee shall also be responsible for those
costs incurred by Lessor for removing debris Lessee may discard in the
process of preparing to vacate the Premises and for a final cleaning of the
Premises, including, but not limited to removal and disposal of Lessee's
personal property remaining in the Premises.
8. ALTERATIONS. Lessee shall not make any alterations or improvements
in, or additions to said Premises without first obtaining the written consent
of Lessor. All such alterations, additions and improvements shall be at the
sole cost and expense of Lessee and shall become the property of Lessor and
shall remain in and be surrendered with the Premises as a part thereof at the
termination of this lease, without disturbance, molestation or injury.
9. RESTRICTIONS. Lessee will not use or permit to be used in said
Premises anything that will increase the rate of insurance on said building
or any part thereof, nor anything that may be dangerous to life or limb; nor
in any manner deface or injure said building or any part thereof; nor
overload any floor or part thereof; nor permit any objectionable noise or
odor to escape or to be emitted from said Premises, or do anything or permit
anything to be done upon said Premises in any way tending to create a
nuisance or to disturb any other tenant or occupant of any part of said
building. Lessee, at Lessee's expense, will comply with all health, fire and
police regulations respecting said Premises. The Premises shall not be used
for lodging or sleeping, and no animals or birds will be allowed in the
building.
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10. WEIGHT RESTRICTIONS. Safes, furniture or bulky articles may be moved
in or out of said Premises only at such hours and in such manner as will
least inconvenience other tenants, which hours and manner shall be at the
discretion of Lessor. No safe or other article of over 2,000 pounds shall be
moved into said Premises without the consent of Lessor, and Lessor shall have
the right to locate the position of any article of weight in said Premises if
Lessor so desires.
11. SIGN RESTRICTION. No sign, picture, advertisement or notice shall be
displayed, inscribed, painted or affixed to any of the glass or woodwork of
the building without the prior approval of Lessor. Notwithstanding the above,
Lessee shall have the right to install monument type signage outside the
building off Elliott Avenue at Lessee's sole cost and expense but with
Lessor's prior written approval of such signage.
12. LOCKS. Lessee shall have access to the premises twenty-four (24)
hours per day, three-hundred sixty-five (365) days per year. Lessor shall
provide, at no charge, Lessee's keys and card keys at the time of lease
commencement, but thereafter at Lessee's expense. No additional locks shall
be placed upon any doors of the Premises. Keys will be furnished to each door
lock. At the termination of the lease, Lessee shall surrender all keys, to
the Premises including card keys whether paid for or not.
13. KEY. Lessor, his janitor, engineer or other agents may retain a pass
key to said Premises to enable him to examine the Premises from time to time
with reference to any emergency or to the general maintenance of said
Premises.
14. TELEPHONE SERVICE. If Lessee desires telephonic or any other
electric connection, Lessor will direct the electricians as to where and how
the wires are
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to be introduced, and without such directions no boring or cutting for wires
in installation thereof will be permitted.
15. SERVICES. Lessor shall maintain Premises and the public and common
areas of building, such as lobbies, stairs, corridors and restrooms, in
reasonably good order and condition and in a manner consistent with
comparable first class office buildings in Seattle, except for damage
occasioned by the act of Lessee.
Lessor shall furnish the Premises with electricity for lighting and
operation of low power usage office machines, heat, normal office
air-conditioning, and elevator services, during the ordinary business hours
of the building. Heating and air conditioning shall be available to Lessee at
times at no additional cost. Air-conditioning units and electricity therefore
for special air-conditioning requirements, such as for computer centers,
shall be at Lessee's expense. Lessor shall also provide lighting replacement
for Lessor furnished lighting, toilet room supplies, window washing with
reasonable frequency, and customary janitor service.
Lessor shall not be liable to Lessee for any loss or damage caused by or
resulting from any variation, interruption or any failure of said services
due to any cause whatsoever, except in the event the same is due to the
negligence or willful misconduct of Lessor or the breach by Lessor of it
obligations hereunder. No temporary interruption or failure of such services
incident to the making of repairs, alterations, or improvements, or due to
accident or strike or conditions or events not under Lessor's control shall
be deemed as an eviction of Lessee or relieve Lessee from any of Lessee's
obligations hereunder. For purposes hereof, an interruption in or failure of
service shall be deemed to be temporary if it lasts for less than forty eight
(48) consecutive hours. In which case Lessee shall be limited to a rent
abatement for any period exceeding forty eight (48) consecutive hours for any
portion of the premises rendered unusable.
Lessor acknowledges and agrees that it shall promptly respond to and to
take appropriate corrective action with respect to any defects or
deficiencies identified by Lessee in the condition of the building or the
Premises or the services provided by Lessor under the terms of this Lease. In
the event of any lack of attention on the part of Lessor and any
dissatisfaction with the service of the building, or any unreasonable
annoyance of any kind, Lessee is requested to make complaints at Lessor's
building office and not to Lessor's employees or agents seen within the
building. Lessee is further requested to remember that Lessor is as anxious
as Lessee to transact business with the greatest possible ease and comfort.
The rules and regulations are not made to unnecessarily restrict Lessee, but
to enable Lessor to operate the building to the best advantage of both
parties hereto. To this end Lessor shall have the right to waive from time to
time such part or parts of such rules and regulations as may from time to
time be implemented by Lessor as in his judgment may not be necessary for the
proper maintenance or operation of the building or consistent with good
service, and may from time to time make such further reasonable rules and
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regulations as in his judgment may be needed for the safety, care and
cleanliness of the Premises and the building and for the preservation of
order therein.
16. SOLICITORS. Lessor will make an effort to keep solicitors out of the
building, and Lessee will not oppose Lessor in his attempt to accomplish this
end.
17. FLOOR PLAN. The floor plan and specifications for Lessee's occupancy
shall be attached hereto and marked Exhibit "A" which shall be approved by
both Lessor and Lessee, both of whose approval shall not be unreasonably
withheld.
18. ASSIGNMENT. Lessee will not assign this lease, or any interest
hereunder, and this lease, or any interest hereunder, shall not be assigned
by operation of law. Lessee will not sublet said Premises or any part thereof
and will not permit the use of said Premises by others other than Lessee and
the agents of Lessee without first obtaining the written consent of Lessor,
which shall not be unreasonably withheld or
delayed, provided however, Lessee shall have the right to sublease all or any
portion of the Premises to an affiliated entity, i.e., an entity which is
controlled by or under common control with Lessee, without the prior written
consent of Lessor but with written notice to Lessor. In the event such written
consent shall be given, no other or subsequent assignment or subletting shall
be made without the previous written consent of Lessor, which shall not be
unreasonably withheld or delayed. In the event Lessee desires to assign or
sublet said Premises or any part thereof, Lessor shall have the first right,
but not the obligation to re-lease the Premises.
19. OPERATING SERVICES AND REAL ESTATE TAXES. The annual base rental
rate per rentable square foot in Paragraph 3 includes Lessee's proportionate
share of Operating Services and Real Estate Taxes for the first twelve months
of the lease term, "Base Year Costs". Only actual increases from these Base
Year Costs, if any, will be passed on to Lessee on a proportionate basis.
DEFINITIONS
BASE YEAR
For computing the Base Year Costs, the base year shall be the calendar year
stated herein or if a specific calendar year is not stated herein then the base
year shall be the calendar year in which the lease term commences. The base
year shall be the calendar year 1996.
COMPARISON YEAR
The Comparison Year(s) shall be the calendar year(s) subsequent to the base
year.
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OPERATING SERVICES
"Operating Services" include, but are not limited to, the charges incurred by
Lessor for: building operation salaries, benefits, management fee of five
percent (5%) of gross income for the building, insurance, electricity,
janitorial, supplies, telephone, HVAC, repair and maintenance, window
washing, water and sewer, security, landscaping, disposal, elevator, etc.
Operating Services shall also include the amortization cost of capital
investment items and of the installation thereof, which are primarily for the
purpose of safety, saving energy or reducing operating costs, or which may be
required by governmental authority, (all such costs shall be amortized over
the reasonable life of the capital investment item, with the reasonable life
and amortization schedule being determined in accordance with generally
accepted accounting principles). Notwithstanding anything to the contrary
contained herein, Operating Services shall not include any of the following:
(i) legal fees, auditing fees, brokerage commissions, advertising costs,
or other related expenses incurred by Lessor in an effort to generate rental
income;
(ii) repairs, alterations, additions, improvements, or replacements made
to rectify or correct any defect in the original design, materials or
workmanship of the building or common areas (but not including repairs,
alterations, additions, improvements or replacements made as a result of
ordinary wear and tear);
(iii) damage and repairs attributable to fire or other casualty;
(iv) damage and repairs necessitated by the negligence or willful
misconduct of Lessor, Lessor's employees, contractors or agents;
(v) executive salaries to the extent that such services are not in
connection with the management, operation, repair or maintenance of the
building;
(vi) Lessor's general overhead expenses not related to the building;
(vii) legal fees, accountant's fees and other expenses incurred in
connection with disputes with tenants or other occupants of the building or
associated with the enforcement of the terms of any leases with tenants or the
defense of Lessor's title to or interest in the building or any part thereof
unless the outcome is to the financial benefit of all tenants;
(viii) costs (including permit, license and inspection fees) incurred in
renovating or otherwise improving, decorating, painting or altering (1) vacant
space (excluding common areas) in the building or (2) space for tenants or
other occupants in the building and costs incurred in supplying any item or
service to less than all of the tenants in the building;
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(ix) costs incurred due to a violation by Lessor or any other tenant of
the building of the terms and conditions of a lease;
(x) cost of any specific service provided to Lessee or other occupants of
the building for which Lessor is reimbursed (but not including Operating
Services and Real Estate Tax Increases above Base Year Costs to the extent
reimbursed Lessor) or any other expense for which Lessor is or will be
reimbursed by another source (i.e., expenses covered by insurance or
warranties);
(xi) costs and expenses which would be capitalized under generally
accepted accounting principles, with the exception of the capital investment
items specified hereinabove;
(xii) building management fees in excess of the management fees specified
hereinabove;
(xiii) cost incurred with owning and/or operating the parking lot(s)
serving the building by independent parking operator(s).
(xiv) fees paid to Lessor or any affiliate of Lessor for goods or
services in excess of the fees that would typically be charged by unrelated,
independent persons or entities for similar goods and services;
(xv) rent called for under any ground lease or master lease;
(xvi) principal and/or interest payments called for under any debt
secured by a mortgage or deed of trust on the building; and
Operating Services shall be adjusted for the Base Year and all Comparison
Year(s) to reflect the greater of actual occupancy or 95% occupancy.
REAL ESTATE TAXES
Real Estate Taxes shall be the taxes paid by Lessor in the base year and each
respective Comparison Year.
PROPORTIONATE BASIS
Lessee's share of Base Year and Comparison Year(s) Costs shall be a fraction,
the numerator of which shall be the number of rentable square feet contained in
the leased Premises (see Paragraph 1) and the denominator of which shall be the
number of rentable square feet in the building in which the leased Premises are
located.
COMPUTATION OF ADJUSTMENTS TO BASE YEAR COSTS
Any adjustment to Base Year Costs will commence to occur in Month 13 of the
lease term with subsequent adjustments commencing every twelve months of the
lease term or in Months 25, 37, 49, etc. as appropriate under the lease term.
Lessee shall be
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responsible for any increase between Lessee's proportionate
share of Base Year Costs and Lessee's proportionate share of each respective
Comparison Year(s) Costs. The increase shall be the increase to each expense
individually. These costs shall be initially calculated based on estimated
(projected) costs with reconciliation to actual costs when annual audited
numbers are completed. For the purpose of calculating projected increases to
Base Year Costs, Lessor shall review historical data to predict if any
estimated increases would be anticipated in a Comparison Year(s). If they are,
then commencing in Month 13 and/or every twelve month period thereafter, Lessor
will assess a monthly charge to be paid together with monthly base rent. Once
actual cost data for Comparison Year(s) Real Estate Taxes and Operating
Services for the entire building is formulated in accordance with generally
accepted accounting principles and adjusted to the greater of actual occupancy
or 95% occupancy, then Lessee's estimated pass-through costs shall be corrected
with Lessee or Lessor, as appropriate, reimbursing the other for the difference
between the estimated and actual costs, at that time in a lump sum payment.
Upon termination of this lease, the amount of any corrected amount between
estimated and actual costs with respect to the final comparison year shall
survive the termination of the lease and shall be paid to Lessee or Lessor as
appropriate within thirty (30) days after final reconciliation.
Computation of or adjustment to Operating Services and/or Real Estate Taxes
pursuant to this paragraph or to rent pursuant to Paragraph 3 shall be computed
based on a three hundred sixty-five (365) day year.
For an example, see Exhibit B attached hereto.
Notwithstanding the other provisions of this lease, the pass-through of all
Operating Services, as described in Paragraph 19, shall not exceed eight
percent (8%) per year on a cumulative basis. For example, if in years 2 and 3,
Lessee's total escalation charges increased by seven percent (7%) and eight
percent (8%) respectively, then if in year 4 costs increase by ten percent
(10%), then Lessor can charge Lessee a maximum increase of nine percent (9%) or
a total escalation cost increase of twenty-four percent (24%) over the three
subsequent years after year 1. Real Estate Taxes shall be passed through based
on the actual taxes paid.
20. ADDITIONAL TAXES OR ASSESSMENTS. Should there presently be in effect
or should there be enacted during the term of the lease, any law, statute or
ordinance levying any assessment or any tax upon rents or the income from real
estate or rental property (other than federal or state income taxes), Lessee
shall reimburse Lessor for Lessee's proportionate share of said expenses at the
same time as rental payments.
21. LATE PAYMENTS. Any payment, required to be made pursuant to this
Lease, not made on the date the same is due or within any cure period provided
for herein or shall bear Interest at a rate equal to three percent (3%) above
the prime rate of interest charged from time to time by Seafirst National Bank,
or its successor.
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In addition to any Interest charged herein, a late charge of five percent
(5%) of the payment amount shall be incurred for payments received more than
five (5) days late.
22. RISK. All personal property of any kind or description whatsoever in
the demised Premises shall be at Lessee's sole risk. Lessor shall not be
liable for any damage done to or loss of such personal property or damage or
loss suffered by the business or occupation of the Lessee arising from any acts
or neglect of co-tenants or other occupants of the building, or of Lessor or
the employees of Lessor, or of any other persons, or from bursting, overflowing
or leaking of water, sewer or steam pipes, or from the heating or plumbing or
sprinkling fixtures, or from electric wires, or from gas, or odors, or caused
in any other manner whatsoever except in the case of the negligence
or willful misconduct of Lessor or a breach by Lessor of its obligations
hereunder, in which case Lessor shall be responsible therefor Lessor's
proportionate share and shall indemnify Lessee from any and all loss, costs,
damages and expenses which it may incur as a result of Lessor's proportionate
share thereof. Lessee shall keep in force throughout the term of this lease
such casualty, general liability and business interruption insurance as a
prudent tenant occupying and using the Premises would keep in force.
23. INDEMNIFICATION. Lessee will defend, indemnify and hold harmless
Lessor from any claim, liability or suit including reasonable attorney's fees
on behalf of any person, persons, corporations and/or firm for any injuries
or damages occurring in or about the said Premises or on or about the
sidewalk, stairs, or thoroughfares adjacent thereto where said damages or
injury was caused or partially caused by the ordinary or gross negligence or
intentional act of Lessee and/or by Lessee's agents, employees, servants,
customers or clients.
24. WAIVER OF SUBROGATION. Lessee and Lessor do hereby release and
relieve the other, and waive their entire claim of recovery for loss, damage,
injury, and all liability of every kind and nature which may arise out of, or
be incident to, fire and extended coverage perils, in, on, or about the
Premises herein described, whether due to negligence of either of said
parties, their agents, or employees, or otherwise.
25. SUBORDINATION. This lease and all interest and estate of Lessee
hereunder is subject to and is hereby subordinated to all present and future
mortgages and deeds of trust affecting the Premises or the property of
which said Premises are a part. Lessee agrees to execute at no expense to the
Lessor, any instrument which may be deemed necessary or desirable by the
Lessor to further effect the subordination of this lease to any such mortgage
or deed of trust. In the event of a sale or assignment of Lessor's interest
in the Premises, or in the event of any proceedings brought for the
foreclosure of, or in the event of exercise of the power of sale under any
mortgage or deed of trust made by Lessor covering the Premises, Lessee shall
attorn to the purchaser and recognize such purchaser as Lessor. Lessee agrees
to execute, at no expense to Lessor, all customary estoppel certificates
deemed necessary or desirable by Lessor to further effect the provisions of
this paragraph.
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26. CASUALTY. In the event the leased Premises or the said building is
destroyed or injured by fire, earthquake or other casualty to the extent that
they are untenantable in whole or in part, then Lessor may, at Lessor's
option, proceed with reasonable diligence to rebuild and restore the said
Premises or such part thereof as may be injured as aforesaid, provided that
within sixty (60) days after such destruction or injury Lessor will notify
Lessee of Lessor's intention to do so, and during the period of such
rebuilding and restoration the rent shall be abated on the portion of the
Premises that is unfit for occupancy. If necessary, Lessor will provide
access to any needed alternative space for Lessee at the fair market rate not
to exceed Lessee's rental rate hereunder.
27. INSOLVENCY. If Lessee becomes insolvent, or makes an assignment for
the benefit of creditors, or a receiver is appointed for the business or
property of Lessee, or a petition is filed in a court of competent
jurisdiction to have Lessee adjudged bankrupt, then Lessor may at Lessor's
option terminate this lease. Said termination shall reserve unto Lessor, all
of the rights and remedies available under Paragraph 28 ("Default") hereof,
and Lessor may accept rents from such assignee or receiver without waiving or
forfeiting said right of termination. As an alternative to exercising his
right to terminate this lease, Lessor may require Lessee to provide adequate
assurances, including the posting of a cash bond, of Lessee's ability to
perform its obligations under this lease.
28. DEFAULT. If this lease is terminated in accordance with any of the
terms herein (with the exception of Paragraph 27), or if Lessee vacates or
abandons the Premises or if Lessee shall fail at any time to keep or perform
any of the covenants or conditions of this lease, i.e. specifically the
covenant for the payment of monthly rent, then, and in any of such events
Lessor may with or without notice or demand, at Lessor's
option, and without being deemed guilty of trespass and/or without
prejudicing any remedy or remedies which might otherwise be used by Lessor
for arrearages or preceding breach of covenant or condition of this lease,
enter into and repossess said Premises and expel the Lessee and all those
claiming under Lessee. In such event Lessor may eject and remove from said
Premises all goods and effects (forcibly if necessary). This lease if not
otherwise terminated may immediately be declared by Lessor as terminated. The
termination of this lease pursuant to this Article shall not relieve Lessee
of its obligations to make the payments required herein. In the event this
lease is terminated pursuant to this Article, or if Lessor enters the
Premises without terminating this lease and Lessor relets all or a portion of
the Premises, Lessee shall be liable to Lessor for all the costs of
reletting, including necessary renovation and alteration of the leased
Premises. Lessee shall remain liable for all unpaid rental which has been
earned plus late payment charges pursuant to Paragraph 21 and for the
remainder of the term of this lease for any deficiency between the net
amounts received following reletting and the gross amounts due from Lessee,
or if Lessor elects, Lessee shall be immediately liable for all rent and
additional rent (Paragraph 19) that would be owing to the end of the term,
less any rental loss Lessee proves could be reasonably avoided, which amount
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shall be discounted by the discount rate of the Federal Reserve Bank,
situated nearest to the Premises, plus one percent (1%). Lessor shall not be
entitled to exercise any of the rights or remedies provided for herein before
Lessee has been given an opportunity to cure the default upon which said
remedies are based, which cure period shall be ten (10) days in the case of a
monetary default and thirty (30) days in the case of a non-monetary default;
provided, however, that in the event said non-monetary default cannot be
cured within said thirty (30) day period but Lessee commences the cure when
said thirty (30) day period and diligently prosecutes the same to completion,
Lessee shall have such additional period of time as may be reasonably
necessary to effect such cure.
29. BINDING EFFECT. The parties hereto further agree with each other
that each of the provisions of this lease shall extend to and shall, as the
case may require, bind and inure to the benefit, not only of Lessor and
Lessee, but also of their respective heirs, legal representatives, successors
and assigns, subject, however, to the provisions of Paragraph 18 of this
lease.
It is also understood and agreed that the terms "Lessor" and "Lessee"
and verbs and pronouns in the singular number are uniformly used throughout
this lease regardless of gender, number or fact of incorporation of the
parties hereto. The typewritten riders or supplemental provisions, if any,
attached or added hereto are made a part of this lease by reference. It is
further mutually agreed that no waiver by Lessor of a breach by Lessee of any
covenant or condition of this lease shall be construed to be a waiver of any
subsequent breach of the same or any other covenant or condition.
30. HOLDING OVER. If Lessee holds possession of the Premises after term
of this lease, Lessee shall be deemed to be a month-to-month tenant upon the
same terms and conditions as contained herein, except rent which shall be
revised to reflect 125% of the last month's rent payment. During
month-to-month tenancy, Lessee acknowledges Lessor will be attempting to
relet the Premises. Lessee agrees to cooperate with Lessor and Lessee further
acknowledges Lessor's statutory right to terminate the lease with proper
notice.
31. ATTORNEY'S FEES. If any legal action is commenced to enforce any
provision of this lease, the prevailing party shall be entitled to an award
of reasonable attorney's fees and disbursements.
32. NO REPRESENTATIONS. The Lessor has made no representations or
promises except as contained herein or in some future writings signed by
Lessor.
33. QUIET ENJOYMENT. So long as Lessee pays the rent and performs the
covenants contained in this lease, Lessee shall hold and enjoy the Premises
peaceably and quietly, subject to the provisions of this lease.
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34. RECORDATION. Lessee shall not record this lease without the prior
written consent of Lessor. However, at the request of Lessor or Lessee, both
parties shall execute a memorandum or "short form" of this lease for the
purpose of recordation in a form customarily used for such purpose. Said
memorandum or short form of this lease shall describe the parties, the
Premises and the lease term, and shall incorporate this lease by reference.
A copy of the Memorandum of Lease is attached hereto.
35. MUTUAL PREPARATION OF LEASE. It is acknowledged and agreed that this
lease was prepared mutually by both parties. In the event of ambiguity, it is
agreed by both parties that it shall not be construed against either party as
the drafter of this lease.
36. GOVERNING LAW. This lease shall be governed by, construed and
enforced in accordance with the laws of the State of Washington.
37. DESIGN SERVICES. Lessor shall, at Lessor's expense, provide for
design, documentation and contract administration in connection with all work
to be done in the Premises in order to prepare the Premises for Lessee's
effective occupancy. Lessor will furthermore contract with, and pay for the
design and engineering services pertaining to structural, mechanical,
electrical, and fire protection. Lessor shall, at Lessor's expense, furnish
to Lessee, for Lessee's approval, all drawings necessary for the preparation
of the Premises for Lessee's use and occupancy.
38. TENANT IMPROVEMENT ALLOWANCE. The space will be completed in
accordance with mutually agreed upon working drawings by a Lessor approved
contractor. Lessee will be responsible for construction costs and will be
provided an allowance of up to $7.50 per rentable square foot. The actual
amount expended will be given to Lessee as a rent credit to be offset against
rents commencing upon lease inception. Lessee shall provide Lessor copies of
the actual invoices. This tenant improvement allowance is for Lessor provided
HVAC and fire alarms, and tenant improvements, may include furniture,
furnishings, or equipment. Lessor shall provide Lessee with a bid to do HVAC
work in the Premises. Lessor shall also provide construction management for
the tenant improvement work. Any tenant improvements in excess of this
allowance shall be paid for by Lessee.
39. CONTRACTOR'S AGREEMENT. Prior to commencement of any payment for
tenant improvement work, Lessor will require unconditional lien releases from
Lessee's contractor and all subcontractors (Exhibit C). In addition, Lessor
will require Lessee or Lessee's contractor to provide certificates of
insurance, executed copies of indemnification forms (Exhibit D) and Lessor's
construction policies (Exhibit E) (attached).
40. PARKING. Lessee shall be provided parking for thirty (30) cars
inside the building garage. Twenty-six (26) of those stalls shall be at
market rate and paid for by the Lessee. The remaining four (4) stalls shall
be reserved for Lessee's exclusive use at no charge to Lessee. Lessee shall
be provided eight (8) additional stalls within two (2) blocks of the building
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at the prevailing market rate. All parking inside the building shall be
available to Lessee twenty-four (24) hours per day. If additional space is
leased to Lessee in the 3131 Elliott Avenue Building, Lessee shall be
provided additional parking at the rate of two (2) stalls per 1,000 rentable
square feet, with one (1) stall per 750 rentable square feet inside the
building garage, all at market rate and paid for by Lessee.
41. OPTION TO TERMINATE. Lessee shall have the option to terminate this
lease upon the expiration of the 60th month of the lease term by giving
Lessor six (6) months prior written notice of its intention to terminate.
42. STORAGE. At Lessee's option, Lessor shall provide Lessee with
approximately 1,000 square feet of storage space within two (2) blocks of the
3131 Elliott Avenue Building. Such storage shall be charged at the annual
rate of $8.00 per square foot.
43. ADJACENT SPACE. Upon request by Lessee, Lessor shall use its best
efforts to provide Lessee, the balance of the 5th floor space occupied by
Airborne Freight Corporation, comprised of an additional 4,258 rentable
square feet. This expansion space shall be leased to Lessee under the same
terms and conditions, including the rental rate contained herein with the
exception of the tenant improvement allowance which shall be pro-rated over
the balance of the initial five (5) year lease term.
44. FIRST RIGHT OF REFUSAL. Lessee shall have a right of refusal to
lease any available space within the 3131 Elliott Avenue Building subject to
a first right of refusal granted to Airborne Freight Corporation. If Lessor
has an interested party for that space, Lessor will notify Lessee accordingly
and Lessee shall have ten (10) working days from receipt of said notice to
respond either way. Rent for this space shall be at the same rental rate that
Lessee is paying at the time for the other space under this lease through the
5th year of the lease term; provided, however, that the tenant improvement
allowance shall be pro-rated for the remaining balance of the five (5) year
term. Any such expansion space leased after the expiration of the initial
five (5) year term shall be at the fair market rate for comparable space
within the 3131 Elliott Avenue Building.
45. BUILDING AMENITIES. Lessor agrees to proceed in good faith with all
due diligence to secure permission from Airborne Freight Corporation to allow
Lessee's use of Airborne's exercise facility and daycare center.
46. REAL ESTATE COMMISSION. A real estate commission equivalent to $3.50
per rentable square foot for years 1-5 of the lease term and $1.75 per
rentable square foot for years 6-10, is due Teutsch Partners for their
services in negotiating this lease. In addition, Teutsch Partners is due a
commission equivalent to 2 1/2% of the gross rental amount for any expansion
space leased by Lessee during the initial three (3) years of the term of this
lease. The commissions shall be paid directly by Lessee to Teutsch Partners,
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one half upon execution of the Lease and one half upon occupancy of the
Premises, and the amount so paid shall be given to Lessee as a rent credit to
be offset against rents beginning with the commencement of this lease.
47. OPTION TO RENEW. Provided that Lessee is not in default under any
terms and conditions of this lease, Lessor grants to Lessee the option to
renew this lease for two successive five (5) year periods each of which
option period shall commence upon the expiration of the immediately preceding
lease term and shall be available to Lessee upon written notice to Lessor
delivered no later than one-hundred eighty (180) days prior to the expiration
of the then current lease term.
The lease shall be renewed for each option period on the same terms and
conditions as this lease except for the base rental rate which shall be
adjusted for each option period to the then current market rate for
comparable office space in the 3131 Elliott Avenue Building, taking into
consideration common rental concessions and tenant improvement allowances at
the time.
48. LESSOR CONSENT. Whenever this Lease requires Lessee to secure the
consent of Lessor, unless specifically provided otherwise herein, the same
shall not be unreasonably withheld.
49. AMENDMENTS. This Agreement may not be amended or modified except by
written instrument signed by the parties hereto.
50. ENTIRETY. This Agreement, along with the exhibits hereto, represents
the entire and final agreement of the parties hereto with respect to the
subject matter hereof and shall supersede all prior negotiations, discussions
or agreements, including, but not limited to, that Letter of Intent dated
March 13, 1996.
51. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed to be an original, but all of which taken together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereof have executed this lease the day
and year first above written.
/s/ MARTIN SELIG
- ---------------------------------- ------------------------------------
Martin Selig By: /s/ FRANK RUFFO
---------------------------------
Its: Vice President
---------------------------------
"Lessor" "Lessee"
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Attachment
STATE OF WASHINGTON )
)ss.
COUNTY OF KING )
On this 29th day of April, 1996 before me, a Notary Public in and for the
State of Washington, personally appeared MARTIN SELIG, the individual who
executed the within and foregoing instrument and acknowledged said instrument
to be his free and voluntary act and deed for the uses and purposes
therein mentioned.
[SEAL] /s/ NOELLE MRAMOR
-------------------------------
Notary Public in and for the
State of Washington, residing at Seattle
My commission expires: 2/15/2000
(Individual)
STATE OF WASHINGTON )
)ss.
COUNTY OF KING )
On this 29th day of April, 1996 before me, a Notary Public in and for the
State of Washington, personally appeared Frank A. Ruffo, the individuals who
executed the within and foregoing instrument, and acknowledged said
instrument to be his/her/their free and voluntary act and deed for the uses
and purposes therein mentioned.
Catherine L. Pasquan
[SEAL] ----------------------------------------
Notary Public in and for the
State of Washington, residing at Seattle
My commission expires: 3-30-99
(Partnership)
STATE OF WASHINGTON )
)ss.
COUNTY OF )
On this day of 19 , before me, a Notary Public in and
for the State of , personally appeared ,
to me known to be partner(s) of , the partnership that
executed the foregoing instrument, and acknowledged said instrument to be the
free and voluntary act and deed of said partnership, for the uses and
15
purposes therein mentioned, and on oath stated that he/she/they is/are
authorized to execute said instrument on behalf of the partnership.
----------------------------------------
Notary Public in and for the
State of Washington, residing at
-------
----------------------------------------
My commission expires:-----------
(Corporation)
STATE OF WASHINGTON )
)ss.
COUNTY OF )
On this day of , 19 , before me, a Notary Public in and for
the State of , personally appeared ,
to me known to be the , respectively, of ,
the corporation that executed the within and foregoing instrument, and
acknowledged said instrument to be the free and voluntary act and deed of
said corporation, for the uses and purposes therein mentioned, and on oath
stated that he/she/they is/are authorized to execute said instrument and that
the seal affixed is the corporate seal of said corporation.
----------------------------------------
Notary Public in and for the
State of Washington, residing at
-------
----------------------------------------
My commission expires:
-----------
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