exv10w1



 





Exhibit
10.1



Basic Lease Information Sheet




	 	 	 
	1. Date of Lease

	 	June 25, 2007
	 
	 	 
	2. Tenant:

	 	EXPEDIA, INC., a Washington corporation
	 
	 	 
	3. Tenant’s Address:

	 	General Counsel

Expedia, Inc.

3150 139th Ave SE 

Bellevue, WA 98005
	 
	 	 
	 

	 	With a copy to
	 
	 	 
	 

	 	VP Real Estate 

Expedia, Inc. 

3150 139th Ave SE 

Bellevue, WA 98005
	 
	 	 
	4. Landlord:

	 	TOWER 333 LLC, a Delaware limited liability company
	 
	 	 
	5. Landlord’s Address:

	 	Tower 333 LLC

2800 Post Oak Boulevard, 50th Floor

Houston, TX 77056
	 
	 	 
	6. Initial Premises;
Net Rentable Area:

	 	Three Hundred Forty-seven Thousand Six Hundred Sixty-one (347,661) square feet
of Net Rentable Area, which includes all of the office space located on Floors
3 through 18 (inclusive) of the Building.
	 
	 	 
	7. Building Net
Rentable Area:

	 	Four Hundred Thirteen Thousand Seven Hundred Eighty (413,780) square feet
	 
	 	 
	8. Tenant’s
Proportionate Share:

	 	Estimated to be eighty-eight and 44/100 percent (88.44%) as calculated under
Section 4.3 below
	 
	 	 
	9. Target Commencement
Date:

	 	November 1, 2008
	 
	 	 
	10. Target Delivery
Date

	 	May 1, 2008
	 
	 	 
	11. Term:

	 	Initial Term: Ten (10) years
Extension Term(s): Two (2) options for five (5) years each






	 	 	 	 	 
	12. Base Rent:

	 	Time Period
	 	Annual Base Rent Rate per Square Foot of Net Rentable Area
(exclusive of Operating Costs)
	 

	 	Lease Year 1
	 	Twenty-five Dollars and Eighty-five Cents ($25.85)
	 

	 	Lease Year 2
	 	Twenty-six Dollars and Eighty-five Cents ($26.85)
	 

	 	Lease Year 3
	 	Twenty-seven Dollars and Eighty-five Cents ($27.85)
	 

	 	Lease Year 4
	 	Twenty-eight Dollars and Eighty-five Cents ($28.85)
	 

	 	Lease Year 5
	 	Twenty-nine Dollars and Eighty-five Cents ($29.85)
	 

	 	Lease Year 6
	 	Thirty Dollars and Eighty-five Cents ($30.85)
	 

	 	LeaseYear 7
	 	Thirty-one Dollars and Eighty-five Cents ($31.85)
	 

	 	Lease Year 8
	 	Thirty-two Dollars and Eighty-five Cents ($32.85)






A









 






	 	 	 	 	 
	 

	 	Lease Year 9
	 	Thirty-three Dollars and Eighty-five Cents ($33.85)
	 

	 	Lease Year 10
	 	Thirty-four Dollars and Eighty-five Cents ($34.85)
	 

	 	Lease Year 11
	 	Thirty-five Dollars and Eighty-five Cents ($35.85)
	13. Parking:	 	Three (3) parking passes per one thousand (1,000) square feet of Net Rentable
Area in the Premises, subject Section 14.22.
	 
	 	 	 	 
	14. Cash Allowance:	 	Fifty and 00/100 Dollars ($50.00) per square foot of Net Rentable Area in the
Premises, to be allocated as provided in Exhibit C.
	 
	 	 	 	 
	15. Broker(s):	 	Landlord’s Broker: Broderick Group
Tenant’s Broker: Cushman & Wakefield






	 	 	 	 	 
	                                        /                    
Tenant’s Initials/Date

	 	 
	 	                                        /                    
Landlord’s Initials/Date






B




 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	Basic Lease Information Sheet
	 	 	A	 
	 
	 	 	 	 
	ARTICLE 1 Premises
	 	 	1	 
	 
	 	 	 	 
	1.1 Lease
	 	 	1	 
	1.2 Landlord’s Reserved Rights
	 	 	3	 
	1.3 Common Areas
	 	 	3	 
	1.4 Calculation of Net Rentable Area; Useable Area
	 	 	4	 
	1.5 Confirmation of Area
	 	 	4	 
	 
	 	 	 	 
	ARTICLE 2 Term, Use of Premises and Base Rent
	 	 	5	 
	 
	 	 	 	 
	2.1 Term
	 	 	5	 
	2.2 Delay in Delivery
	 	 	6	 
	2.3 Confirmation
	 	 	6	 
	2.4 Use
	 	 	6	 
	2.5 Payments by Tenant
	 	 	7	 
	2.6 Payment of Base Rent
	 	 	7	 
	2.7 Partial Months
	 	 	9	 
	 
	 	 	 	 
	ARTICLE 3 Security Deposit
	 	 	10	 
	 
	 	 	 	 
	ARTICLE 4 Payment of Operating Costs
	 	 	10	 
	 
	 	 	 	 
	4.1 Net Lease
	 	 	10	 
	4.2 Estimated Payments
	 	 	10	 
	4.3 Tenant’s Proportionate Share
	 	 	10	 
	4.4 Operating Costs
	 	 	10	 
	4.5 Adjustment for Occupancy
	 	 	15	 
	4.6 Computation of Operating Costs Adjustment
	 	 	15	 
	4.7 Adjustment for Variation Between Estimated and Actual
	 	 	15	 
	4.8 Cap on Controllable Operating Costs
	 	 	16	 
	4.9 Audit Right
	 	 	16	 
	4.10 Review, Approval of Budget
	 	 	17	 
	 
	 	 	 	 
	ARTICLE 5 Landlord’s Covenants
	 	 	17	 
	 
	 	 	 	 
	5.1 Basic Services
	 	 	17	 
	5.2 Hours of Operation
	 	 	19	 
	5.3 Interruption
	 	 	19	 
	5.4 Extra Services
	 	 	20	 
	5.5 Window Coverings
	 	 	21	 
	5.6 Graphics and Signage
	 	 	21	 
	5.7 Tenant Extra Improvements
	 	 	21	 
	5.8 Peaceful Enjoyment
	 	 	21	 
	5.9 Corporate Authority
	 	 	21	 
	5.10 Building Naming and Signage Rights
	 	 	22	 
	 
	 	 	 	 
	ARTICLE 6 Tenant’s Covenants
	 	 	23	 
	 
	 	 	 	 
	6.1 Compliance With Exhibit C
	 	 	23	 
	6.2 Construction of Tenant Improvements
	 	 	23	 
	6.3 Telecommunications
	 	 	23	 






 i 





 









 








	 	 	 	 	 
	6.4 Taxes on Personal Property and Tenant Extra Improvements
	 	 	24	 
	6.5 Repairs by Tenant
	 	 	24	 
	6.6 Waste
	 	 	25	 
	6.7 Alterations, Additions, Improvements
	 	 	25	 
	6.8 Liens
	 	 	26	 
	6.9 Compliance With Laws and Insurance Standards
	 	 	26	 
	6.10 Entry for Repairs, Inspection, Posting Notices, Etc.
	 	 	27	 
	6.11 No Nuisance
	 	 	28	 
	6.12 Rules and Regulations
	 	 	28	 
	6.13 Surrender of Premises on Termination
	 	 	28	 
	6.14 Corporate Authority
	 	 	29	 
	6.15 Utilities
	 	 	29	 
	 
	 	 	 	 
	ARTICLE 7 Hazardous Materials
	 	 	29	 
	 
	 	 	 	 
	7.1 Prohibition and Indemnity With Respect to Hazardous Materials
	 	 	29	 
	7.2 Definitions
	 	 	30	 
	 
	 	 	 	 
	ARTICLE 8 Assignment or Sublease
	 	 	31	 
	 
	 	 	 	 
	8.1 Consent Required
	 	 	31	 
	8.2 Transfers to Qualified Transferees
	 	 	32	 
	8.3 Landlord’s Options
	 	 	32	 
	8.4 Minimum Rental and Terms; Division of Excess Rent
	 	 	33	 
	8.5 Tenant Not Released
	 	 	33	 
	8.6 Written Agreement
	 	 	33	 
	8.7 No Transfer Period
	 	 	33	 
	8.8 Conditions
	 	 	33	 
	8.9 Expenses
	 	 	33	 
	8.10 Restriction on Landlord
	 	 	33	 
	8.11 No Leasehold Financing
	 	 	34	 
	 
	 	 	 	 
	ARTICLE 9 Condition and Operation of the Building
	 	 	34	 
	 
	 	 	 	 
	9.1 No Warranty
	 	 	34	 
	9.2 Building Alterations
	 	 	34	 
	 
	 	 	 	 
	ARTICLE 10 Lender Rights
	 	 	35	 
	 
	 	 	 	 
	10.1 Subordination
	 	 	35	 
	10.2 Attornment
	 	 	35	 
	10.3 REAs
	 	 	35	 
	10.4 Estoppel Certificate
	 	 	35	 
	 
	 	 	 	 
	ARTICLE 11 Insurance
	 	 	36	 
	 
	 	 	 	 
	11.1 Landlord’s Property Insurance
	 	 	36	 
	11.2 Liability Insurance
	 	 	36	 
	11.3 Tenant’s Insurance
	 	 	37	 
	11.4 Indemnity and Exoneration
	 	 	38	 
	11.5 Indemnity for Liens
	 	 	38	 
	11.6 Waiver of Subrogation Rights
	 	 	39	 
	 
	 	 	 	 
	ARTICLE 12 Casualty and Eminent Domain
	 	 	39	 
	 
	 	 	 	 
	12.1 Damage and Destruction
	 	 	39	 
	12.2 Condemnation
	 	 	41	 






 ii 




 









 








	 	 	 	 	 
	ARTICLE 13 Default
	 	 	42	 
	 
	 	 	 	 
	13.1 Events of Default
	 	 	42	 
	13.2 Remedies Upon Default
	 	 	43	 
	13.3 Damages Upon Termination
	 	 	44	 
	13.4 Computation of Rent for Purposes of Default
	 	 	44	 
	13.5 Late Charge
	 	 	45	 
	13.6 Remedies Cumulative
	 	 	45	 
	13.7 Tenant’s Remedies
	 	 	45	 
	 
	 	 	 	 
	ARTICLE 14 Miscellaneous
	 	 	47	 
	 
	 	 	 	 
	14.1 No Waiver
	 	 	47	 
	14.2 Holding Over
	 	 	47	 
	14.3 Attorneys’ Fees
	 	 	48	 
	14.4 Amendments
	 	 	48	 
	14.5 Transfers by Landlord
	 	 	48	 
	14.6 Severability
	 	 	48	 
	14.7 Notices
	 	 	48	 
	14.8 No Option
	 	 	48	 
	14.9 Integration and Interpretation
	 	 	49	 
	14.10 Quitclaim
	 	 	49	 
	14.11 No Easement for Light, Air and View
	 	 	49	 
	14.12 No Merger
	 	 	49	 
	14.13 Memorandum of Lease
	 	 	49	 
	14.14 Survival
	 	 	49	 
	14.15 Financial Statements
	 	 	50	 
	14.16 No Joint Venture
	 	 	50	 
	14.17 Successors and Assigns
	 	 	50	 
	14.18 Applicable Law
	 	 	50	 
	14.19 Time of the Essence; Force Majeure
	 	 	50	 
	14.20 Confidentiality
	 	 	50	 
	14.21 Interpretation
	 	 	51	 
	14.22 Parking
	 	 	51	 
	14.23 Rent Assumption
	 	 	54	 
	14.24 Brokers
	 	 	54	 
	14.25 Roof Top Equipment
	 	 	54	 
	14.26 USA Patriot Act Disclosures
	 	 	55	 
	14.27 Generator
	 	 	56	 
	14.28 Changes to Base Building
	 	 	57	 
	14.29 Dedicated Move In
	 	 	58	 






iii









 






 




	 	 	 
	Attachments:	 	 
	Exhibit A

	 	Floor Plans for the Premises, Depiction of Outdoor Amenity Area and Generator Location
	Exhibit B

	 	Legal Description of the Real Property
	Exhibit C

	 	Initial Tenant Improvements
	Schedule C-1

	 	Base Building Improvements
	Schedule C-2

	 	Definition of Building Standard Improvements
	Schedule C-3

	 	Typical Floor Plan for Building Standard Improvements
	Exhibit D

	 	Rules and Regulations
	Exhibit E

	 	Lease Commencement Certificate
	Exhibit F

	 	Form of Estoppel Certificate
	Exhibit G

	 	Form of SNDA
	Exhibit H

	 	Environmental Reports
	Exhibit I

	 	Memorandum of Lease
	Exhibit J

	 	Existing Leases and Assumed Obligations






 iv 




 









 








SCHEDULE OF DEFINED TERMS




	 	 	 	 	 	 	 
	 	 	Section No.	 	Page No.	 
	Actual Cost 
	 	Section 5.4	 	 	20	 
	Adjustment Date 
	 	Section 2.6(b)	 	 	7	 
	Alterations 
	 	Section 6.7	 	 	25	 
	amortization 
	 	Section 4.4(k)	 	 	13	 
	Availability Notice 
	 	Section 1.1(b)	 	 	2	 
	Base Building 
	 	Exhibit C, Paragraph 1(a)	 	 	1	 
	Base Building Improvements 
	 	Exhibit C, Paragraph 2	 	 	1	 
	Base Building Plans 
	 	Exhibit C, Paragraph 1(b)	 	 	1	 
	Basic Services 
	 	Section 5.1	 	 	17	 
	Blocked Persons 
	 	Section 14.26	 	 	56	 
	BOMA Standard 
	 	Section 1.4	 	 	4	 
	Building Components 
	 	Section 1.2	 	 	3	 
	Building Name 
	 	Section 5.9	 	 	22	 
	Building 
	 	Section 1.1(a)	 	 	1	 
	Building Standard Improvements 
	 	Schedule C-2	 	 	1	 
	Business Days 
	 	Section 5.2	 	 	19	 
	CAD 
	 	Exhibit C, Paragraph 1(d)	 	 	1	 
	Cash Allowance 
	 	Exhibit C, Paragraph 15(a)	 	 	7	 
	Claims 
	 	Section 7.1(b)	 	 	30	 
	Common Areas 
	 	Section 1.3	 	 	4	 
	Comparable Buildings 
	 	Section 2.6(c)	 	 	8	 
	Competitor 
	 	Section 8.10	 	 	33	 
	Conceptual Plans 
	 	Exhibit C, Paragraph 5	 	 	3	 
	Control 
	 	Section 8.2	 	 	32	 
	Controllable Operating Costs 
	 	Section 4.8	 	 	16	 
	Cosmetic Alteration 
	 	Section 6.7	 	 	25	 
	Cost Statement 
	 	Section 4.6	 	 	15	 
	Covered Parties 
	 	Section 14.26	 	 	56	 
	CPI Index 
	 	Section 13.4(b)	 	 	45	 
	Delivery Date 
	 	Section 2.1(a)	 	 	5	 
	Design Manual 
	 	Section 6.1	 	 	23	 
	Devices 
	 	Section 14.25	 	 	55	 
	Environmental Reports 
	 	Section 7.1(a)	 	 	29	 
	Estimated Operating Costs 
	 	Section 4.2	 	 	10	 
	Event of Default 
	 	Section 13.1	 	 	42	 
	Excess Rent 
	 	Section 8.4	 	 	33	 
	Executive Order 
	 	Section 14.26	 	 	56	 
	Existing Leases 
	 	Section 14.23	 	 	54	 
	Expiration Date 
	 	Section 2.1(a)	 	 	5	 
	Extension Notice 
	 	Section 2.1(b)	 	 	6	 
	Extension Option 
	 	Section 2.1(b)	 	 	6	 
	Extension Terms 
	 	Section 2.1(b)	 	 	6	 
	Extra Services 
	 	Section 5.4	 	 	20	 
	Fair Market Rent 
	 	Section 2.6(c)	 	 	7	 
	Final Finding 
	 	Section 4.9(g)	 	 	17	 
	Final Removal Notice 
	 	Section 6.13	 	 	28	 
	Final Submission 
	 	Section 2.6(c)(i)	 	 	8	 






v









 






	 	 	 	 	 	 	 
	 	 	Section No.	 	Page No.	 
	Force Majeure 
	 	Section 14.19	 	 	50	 
	Garage 
	 	Section 14.22(d)	 	 	53	 
	Generator 
	 	Section 14.27(a)	 	 	56	 
	HVAC 
	 	Section 5.1(b)	 	 	18	 
	Initial Assessments 
	 	Section 4.4(j)	 	 	12	 
	Initial Premises 
	 	Section 1.1(a)	 	 	1	 
	Initial Tenant 
	 	Section 1.1(b)	 	 	1	 
	Initial Term 
	 	Section 2.1(a)	 	 	5	 
	Interest Rate 
	 	Section 13.5	 	 	45	 
	Land 
	 	Section 7.1(a)	 	 	29	 
	Landlord Covered Parties 
	 	Section 14.26	 	 	56	 
	Landlord 
	 	Introduction	 	 	1	 
	Landlord Parties 
	 	Section 6.5	 	 	25	 
	Laws 
	 	Section 6.9(a)	 	 	26	 
	Lease 
	 	Introduction	 	 	1	 
	Lease Year 
	 	Section 2.1(a)	 	 	5	 
	List 
	 	Section 14.26	 	 	56	 
	Major Vertical Penetrations 
	 	Section 1.2	 	 	3	 
	Market Area 
	 	Section 2.6(c)	 	 	8	 
	Minimum Leasing Requirement 
	 	Section 5.9	 	 	22	 
	Negotiation Period 
	 	Section 2.6(c)(i)	 	 	8	 
	Net Rentable Area 
	 	Section 1.4	 	 	4	 
	Normal Office Hours 
	 	Section 5.2	 	 	19	 
	OFAC 
	 	Section 14.26	 	 	56	 
	Offer Space 
	 	Section 1.1(d)	 	 	1	 
	Operating Costs Adjustments 
	 	Section 4.6	 	 	15	 
	Operating Costs 
	 	Section 4.4	 	 	10	 
	Outdoor Amenity Area 
	 	Section 2.4	 	 	7	 
	Parking Pass 
	 	Section 14.22(a)	 	 	51	 
	Parking Rent 
	 	Section 14.22(a)	 	 	51	 
	Permitted Use 
	 	Section 2.4	 	 	6	 
	Premises 
	 	Section 1.1(a)	 	 	1	 
	Prime Rate 
	 	Section 4.4(k)	 	 	13	 
	Provider 
	 	Section 6.3	 	 	23	 
	Qualified Auditor 
	 	Section 4.9(d)	 	 	16	 
	Qualified Transferee 
	 	Section 8.2	 	 	32	 
	Real Property 
	 	Section 1.1(a)	 	 	1	 
	Real Property Taxes 
	 	Section 4.4(j)	 	 	12	 
	REAs 
	 	Section 10.3	 	 	35	 
	Relet Term 
	 	Section 13.2(b)	 	 	43	 
	Reletting Expenses 
	 	Section 13.2(b)	 	 	44	 
	Removable Improvements 
	 	Section 6.13	 	 	28	 
	Rent 
	 	Section 2.5	 	 	7	 
	Repair Notice 
	 	Section 12.1	 	 	39	 
	ROFO 
	 	Section 1.1(b)	 	 	1	 
	Rules and Regulations 
	 	Section 6.12	 	 	28	 
	Secured Areas 
	 	Section 6.10	 	 	27	 
	Senior Instruments 
	 	Section 10.1	 	 	35	 
	Senior Parties 
	 	Section 10.1	 	 	35	 
	SNDA 
	 	Section 10.1	 	 	35	 
	Successor 
	 	Section 10.2	 	 	35	 






vi









 






	 	 	 	 	 	 	 
	 	 	Section No.	 	Page No.	 
	Supplemental Parking 
	 	Section 14.22(c)	 	 	52	 
	Tenant Extra Improvements 
	 	Exhibit C, Paragraph 3	 	 	2	 
	Tenant Improvements 
	 	Exhibit C, Paragraph 3	 	 	2	 
	Tenant 
	 	Introduction	 	 	1	 
	Tenant Parties 
	 	Section 6.5	 	 	24	 
	Tenant’s Personal Property 
	 	Section 6.4	 	 	24	 
	Tenant’s Proportionate Share 
	 	Section 4.3	 	 	10	 
	Tenant’s Security 
	 	Section 5.1(g)	 	 	19	 
	Term Commencement Date 
	 	Section 2.1(a)	 	 	5	 
	Termination Notice 
	 	Section 12.1(f)	 	 	40	 
	TI Architect 
	 	Exhibit C, Paragraph 1(i)	 	 	1	 
	TI Construction Contract 
	 	Exhibit C, Paragraph 10	 	 	5	 
	TI Contractor 
	 	Exhibit C, Paragraph 1(j)	 	 	1	 
	Transfer 
	 	Section 8.1	 	 	31	 
	Transferee 
	 	Section 8.1	 	 	31	 
	UPS 
	 	Section 14.27(a)	 	 	56	 
	Useable Area 
	 	Section 1.4	 	 	4	 
	Variable Operating Costs 
	 	Section 4.5	 	 	15	 
	Working Drawings 
	 	Exhibit C, Paragraph 6	 	 	3	 






vii









 





OFFICE BUILDING LEASE




     This Office Building Lease (the “Lease”) is made and entered into as of the date specified in
Item 1 of the Basic Lease Information Sheet attached hereto and incorporated herein by this
reference, by and between TOWER 333 LLC, a Delaware limited liability company (“Landlord”) and
EXPEDIA, INC., a Washington corporation (“Tenant”). Tenant authorizes Landlord to insert the date
of Landlord’s execution hereof on the Basic Lease Information Sheet as the date of this Lease.



     Now, therefore, in consideration of the mutual covenants and agreements contained in this
Lease, the parties agree as follows:



ARTICLE 1

Premises




     1.1 Lease.



          (a) Initial Premises. Subject to the terms, covenants and conditions set forth herein,
Landlord leases to Tenant and Tenant leases from Landlord those certain premises identified in the
Basic Lease Information Sheet as Item 6, which are schematically depicted on the floor
plans and/or stacking diagrams attached hereto as Exhibit A (the “Initial Premises”). The
“Premises,” which will include the Initial Premises and any additional space leased by Tenant
hereunder, are a part of the building and other improvements, including common areas (collectively,
the “Building”), to be constructed on the real property situated in the City of Bellevue, County of
King, State of Washington, legally described on Exhibit B (the “Real Property”). The
precise location of and floor plans for the Initial Premises shall be modified to reflect any
revisions to the Building design after the date hereof; provided that any material modifications of
the Building design which would (i) materially affect Tenant’s access to or use of the Premises or
the size or configuration of the Premises, (ii) reduce the number of parking spaces in the Garage
by more than ten (10) spaces, or (iii) alter the character of the Common Areas, will be subject to
the prior written approval of Tenant unless the same are required by applicable Law, permits or
inspections from or by any governmental authorities or changes in materials due to unavailability
or precipitous price increases (as long as materials of equivalent quality are substituted), and
Tenant’s approval shall not be unreasonably withheld, delayed or conditioned. The calculation of
Net Rentable Area and Useable Area for the Building and the Premises shall be determined in
accordance with Section 1.4 below and if a final measurement is different from that set
forth herein, the parties shall enter into an amendment to this Lease to confirm the correct square
footage and Tenant’s Proportionate Share.



          (b) Right of First Offer. Subject to the terms and conditions of this Section 1.1(b),
Tenant shall have an ongoing right of first offer (“ROFO”) to include within the Premises any
office space which becomes available in the Building (the “Offer Space”). Vacant space shall not
be considered Offer Space until the Landlord has entered into a lease with a third party (the
“Initial Tenant”) and the Initial Tenant has surrendered the space. Tenant’s ROFO shall be
subordinate to the rights (including any expansion or first offer rights with respect to the floors
on which such tenant is located and any renewal or extension rights) granted to the Initial Tenant
and any other tenant to whom the Offer Space is leased if Landlord offers the space to Tenant under
this Section 1.1(b) and Tenant does not lease such space; provided that with respect to the
nineteenth (19th) floor only, Landlord shall not grant any tenant expansion rights that extend
beyond the initial term of such tenant’s lease. Landlord shall not be required to offer any Offer
Space to Tenant at any time if a material Event of Default (as defined in Section 13.1
below) is outstanding under this Lease or if more than one (1) material Event of Default has
occurred under this Lease during the immediately preceding two (2) years or if Tenant is not
occupying and paying Rent on at least half of the Initial Premises. Tenant’s ROFO shall not be
exercisable after the date two (2) years prior to the Expiration Date of this Lease unless Tenant
timely exercises an Extension Option pursuant to Section 2.1(b) below (if such Extension
Option is then available to Tenant) concurrently with its exercise of the ROFO and if Tenant fails
to exercise an Extension Option the first time Offer Space is offered to Tenant during such two (2)
year period, the



J-1









 




ROFO shall automatically terminate and shall be of no further force nor effect. In addition,
if at any time after the earlier of (x) the date on which Tenant occupies the Initial Premises or
(y) one (1) year after the Term Commencement Date, Tenant leases and occupies less than one hundred
seventy-three thousand (173,000) square feet of Net Rentable Area, the ROFO shall automatically
terminate and shall be of no further force nor effect.




     For the purposes of this Section 1.1, and any other provision of this Lease
(including, without limitation, Sections 2.1(b), 5.9, and 8.10) which
includes a requirement that at the time in question Tenant be occupying and paying Rent on, or
leasing and occupying, or leasing, occupying, and paying Rent on, a specified portion of the
Initial Premises or a specified number of rentable square feet, Tenant shall be deemed to be
occupying any portion of the Premises that Tenant is then prevented from occupying by the operation
of Force Majeure, and Tenant shall be deemed to be paying Rent on any space as to which abatement
of Rent pursuant to the provision of this Lease is then applicable.



     Landlord shall provide Tenant written notice of the date when any Offer Space is expected to
be available based upon (A) the expiration date of the third party lease affecting such Offer Space
(but in no event prior to the date that is eighteen (18) months prior to the scheduled date of
expiration of such third party lease) and (B) in the event of an early termination of the lease of
an occupant of any portion of the Offer Space, the date of any early termination of any such lease
that accelerates the date when an Offer Space will be available (“Availability Notice”). Any
Availability Notice will specify the approximate location and configuration of the Offer Space and
the date upon which Landlord estimates such space will become available for occupancy or the
construction of improvements. Landlord will include in the Availability Notice Landlord’s
nonbinding good faith estimate of the Fair Market Rent that would be applicable to the Offer Space
provided that such estimate will not be used in determining the Base Rent for the Offer Space. If
Tenant desires to exercise the ROFO with respect to such space, Tenant must deliver irrevocable
written notice of exercise to Landlord no later than fifteen (15) days after Landlord’s
Availability Notice is given to Tenant. During such fifteen (15) day period, Tenant shall be
entitled to tour the Offer Space described in the Availability Notice. So long as this ROFO
remains in effect, Landlord will not enter into any lease for any portion of the Offer Space with a
third party (other than a lease with an Initial Tenant) unless and until Landlord has delivered to
Tenant an Availability Notice with respect to such space and Tenant has failed to exercise the ROFO
with respect to such space. If Tenant exercises the ROFO, Landlord and Tenant shall enter into an
amendment to this Lease reflecting the inclusion of the Offer Space as part of the Premises.
Tenant shall lease each increment of Offer Space commencing as soon as the Offer Space actually
becomes available for occupancy, upon the terms and conditions of this Lease except that (a) the
Base Rent for the Offer Space shall be the Fair Market Rent (as defined in and determined in
accordance with Section 2.6 below), but in no event will the Base Rent for such space be
less than the Base Rent rate then applicable for the Initial Premises, (b) the Offer Space shall be
leased in its then-current as-is condition and Landlord shall not be required to make or contribute
any funds toward any improvements in such space (except that Landlord shall pay Tenant an allowance
equal to One Dollar ($1.00) per square foot of Net Rentable Area leased by Tenant under this ROFO
for each year of the then-remaining Term plus a pro-rata share of One Dollar ($1.00) per square
foot for any partial year) nor to pay any commission or fee to any broker representing Tenant in
connection therewith. For the purposes of application of Section 2.6(c) below, Landlord
will notify Tenant of Landlord’s good faith determination of Fair Market Rent for the Offer Space
within ten (10) Business Days following Tenant’s exercise of the ROFO. Thereafter, the provisions
of Section 2.6(c) will apply to the determination of Fair Market Rent for the Offer Space,
with references in said Section 2.6(c) to the “Adjustment Date” being deemed references to
the date upon which Tenant’s obligation to pay rent for the Offer Space commences. If Tenant does
not exercise the ROFO with respect to such space within the time period required then (subject to
the terms of the third sentence of this Section 1.1(b) and Section 8.10 below)
Landlord shall be free to lease the Offer Space to a third party on any terms and conditions
Landlord may desire. In the event this Lease is terminated for any reason, the rights granted to
Tenant in this paragraph shall also terminate at the same time. In the event Tenant exercises the
ROFO and



J-2









 




thereafter an Event of Default on the part of Tenant occurs prior to Tenant’s occupancy of the
Offer Space, Landlord may elect, by written notice to Tenant, to terminate Tenant’s prior exercise
of the ROFO, in which event Tenant shall have no rights with respect to such Offer Space.




     The ROFO is personal to Tenant and any Qualified Transferee who takes an assignment of all of
Tenant’s rights under this Lease. The ROFO shall be a continuing right, and Offer Space shall be
offered to Tenant as provided herein from time to time as any portion of the Offer Space becomes
available.



     1.2 Landlord’s Reserved Rights. In addition to all other rights reserved by Landlord under
this Lease, Landlord reserves from the leasehold estate hereunder, and the Premises shall not
include: (a) the exterior surfaces of the walls and windows bounding the Premises, and (b) all
space located within the Premises for Major Vertical Penetrations (as defined below), conduits
(subject to Tenant’s conduit rights set forth herein), electric and all other utilities, heating
ventilation and air-conditioning and fire protection and life safety systems, sinks or other
Building facilities that do not constitute Tenant Improvements (collectively, “Building
Components”). Landlord shall have the use of the Building Components and (provided Landlord gives
Tenant at least twenty-four (24) hours advance notice, which may be e-mail notice, except in the
case of emergency when no notice shall be required) access through the Premises for operation,
maintenance, repair or replacement thereof, subject to the provisions of this Section 1.2.
Landlord shall have the right from time to time, to install, remove or relocate any of the Building
Components within the Premises to locations that do not permanently and materially reduce the
square footage of the Premises. As used herein, the term “Major Vertical Penetrations” shall mean
the area or areas within Building stairs, elevator shafts, flues, pipe shafts, vertical ducts and
the like that service more than one floor of the Building and their enclosing walls. The area of
Major Vertical Penetrations shall be bounded and defined to include the perimeter walls thereof (or
the extended plane of such walls over areas that are not enclosed). Notwithstanding the foregoing,
Major Vertical Penetrations shall exclude, however, the structure to support the Building,
including the structural concrete core walls and areas for the specific use of Tenant or installed
at the request of Tenant, such as special stairs or elevators. Landlord shall use commercially
reasonable efforts to ensure that the performance of any such work of repairs or alterations shall
not materially interfere with Tenant’s use of or access to the Premises (or any material portion
thereof) for Tenant’s business purposes (such efforts may include performing such work outside
Normal Office Hours if performance of such work would be disruptive and shall include cleaning any
work area prior to the commencement of the next Business Day).



     1.3 Common Areas. Tenant shall have the nonexclusive right (in common with other tenants or
occupants of the Building, Landlord and all others to whom Landlord has granted or may hereafter
grant such rights) to use the Common Areas (defined below), subject to the Rules and Regulations
(as defined in Section 6.12 below). Landlord may at any time close temporarily any Common
Areas to make repairs or changes therein or to effect construction, repairs, or changes within the
Building, or to prevent the acquisition of public rights in such areas, or to discourage parking by
parties other than tenants, and may do such other acts in and to the Common Areas as in its
reasonable judgment may be desirable as long as such changes (i) do not change the nature of the
Building to something other than a first class office building project, (ii) do not materially,
adversely effect Tenant’s use of the Premises for the Permitted Use, or materially, adversely
affect Tenant’s ingress to or egress from the Building, the Premises or the Garage, or (iii) do not
reduce the number of parking spaces in the Garage by more than ten (10) spaces. The manner in
which the Common Areas are maintained and operated shall be at the reasonable discretion of
Landlord, provided that Landlord shall at all times maintain and operate the Common Areas in a
first class manner consistent with “Comparable Buildings,” as such term is defined in Section
2.6(c) below. Landlord may from time to time permit portions of the Common Areas to be used
exclusively by specified tenants such as, by way of example only, a tenant reception/party in the
Building lobby. Landlord may also, from time to time, place or permit customer service and
information booths, kiosks, stalls, push carts and other merchandising facilities (consistent with
those in Comparable Buildings) but Landlord may not permit such facilities to be used by any
Competitor (as defined in



J-3









 




Section 8.10 below) in the Common Areas. “Common Areas” shall mean any of the
following or similar items: (a) to the extent included in the Building the total square footage of
areas of the Building devoted to nonexclusive uses such as ground floor lobbies, seating areas and
elevator foyers; fire vestibules; mechanical areas; restrooms and corridors on all floors; elevator
foyers and lobbies on multi-tenant floors; electrical and janitorial closets; telephone and
equipment rooms; and other similar facilities maintained for the benefit of Building tenants and
invitees, but shall not mean Major Vertical Penetrations; and (b) all parking garage vestibules;
restrooms; loading docks; locker rooms, exercise and conference facilities available for use by
Building tenants (if any); walkways, roadways and sidewalks; trash areas; mechanical areas;
landscaped areas including courtyards, plazas and patios; and other similar facilities maintained
for the benefit of Building tenants and invitees. Except when and where Tenant’s right of access
is specifically prevented as a result of (i) an emergency, (ii) a legal requirement, or (iii) a
specific provision set forth in this Lease, Tenant shall have the right of ingress and egress to
the Premises, the Building, and the Garage twenty-four (24) hours per day, seven (7) days per week,
provided access may be subject to reasonable security restrictions.




     1.4 Calculation of Net Rentable Area; Useable Area. Tenant acknowledges that the term “Net
Rentable Area” as used in this Lease shall mean the area or areas of space within the Building
determined substantially in accordance with the ANSI/BOMA 1996 “Standards Method for
Measuring Floor Area in Office Buildings” as customarily used by Landlord to measure space within
the Building (the “BOMA Standard”) and shall include all space within any demising walls (measured
from the mid-point of the demising walls for a multi-tenant floor and, in the case of exterior
walls, measured to the inside surface of the outer pane of glass and extensions of the plane
thereof in non-glass areas), plus Tenant’s pro rata share of Common Areas. Landlord shall
determine Tenant’s pro rata share of Common Areas using any commercially reasonable allocation
formula selected by Landlord excluding any space in the Building designated or leased for retail
uses. No deductions from the rentable area shall be made for structure to the Building (such as
columns or the structural concrete core) or projections necessary to the Building except for Major
Vertical Penetrations. Tenant acknowledges that the term “Useable Area” means the Net
Rentable Area less the Common Areas included in the calculation thereof.



     1.5 Confirmation of Area. Tenant, at Tenant’s sole cost, may hire the TI Architect (as
defined in Exhibit C) to physically measure the as-built Initial Premises and the Building
using the BOMA Standard provided that such remeasurement must be completed within sixty (60) days
after the Delivery Date. If Tenant remeasures the Initial Premises and/or the Building, it shall
deliver to Landlord a complete copy of all documentation relating to such remeasurement so that
Landlord can either confirm or contest the accuracy of such remeasurement. If the result of the
remeasurement varies from the numbers set forth herein then Landlord, Tenant and the TI Architect
shall meet with Landlord’s architect to resolve the discrepancy. If and only if the remeasurement
shows a discrepancy of one percent (1%) (greater than or less than) the numbers set forth in the
Basic Lease Information Sheet, the size of the Initial Premises shall be adjusted accordingly. If
the variance is less than one percent (1%) the numbers shall not be adjusted. In the event that
the remeasurement does not show a discrepancy of one percent (1%) (greater than or less than) the
numbers set forth in the Basic Lease Information Sheet, Tenant shall pay all costs associated with
the remeasurement, including Landlord’s costs to contest or confirm the remeasurement. In the event
that the remeasurement shows a discrepancy of more than one percent (1%) (greater than or less
than) the numbers set forth in the Basic Lease Information Sheet, Landlord shall pay all costs
associated with the remeasurement, including the cost of the TI Architect. If the parties acting
reasonably and in good faith cannot resolve the discrepancy and agree on the actual square footage
within thirty (30) days after Landlord’s receipt of the remeasurement, the matter shall be resolved
through arbitration in accordance with the following paragraph. If Tenant does not elect to
remeasure in accordance with this Section 1.5, Tenant shall be deemed to have waived such
right and the numbers set forth in this Lease shall be conclusively deemed to be correct and shall
not thereafter be subject to remeasurement, modification or adjustment.



J-4









 





     All disputes between Landlord and Tenant regarding the results of any remeasurement under this
Section 1.5 shall be resolved through arbitration in accordance with this paragraph. If a
party objects to the remeasurement calculations, it shall deliver an arbitration demand to the
other party within forty (40) days after receipt of such remeasurement. Within ten (10) Business
Days following delivery of an arbitration demand, the parties shall mutually select one (1)
arbitrator who is a natural person not employed by either of the parties or any parent or
affiliated partnership, corporation or other enterprise thereof, who shall be a licensed AIA
architect with at least ten (10) years experience measuring space in Class A office buildings in
the Seattle/Bellevue vicinity. If the parties do not agree on an arbitrator, then either party, on
behalf of both, may request appointment of such a qualified person by the AAA in a written notice
with a copy given to the other party. The arbitrator so selected shall decide the dispute, if it
has not previously been resolved, by following the procedure set forth herein. The arbitrator
shall state in writing his or her determination of the Net Rentable Area of the Initial Premises
and the Building applying the BOMA Standard supported by the reasons therefor, and shall deliver a
copy to each party. The arbitrator shall have no power to modify the provisions of this Lease or
to revise the BOMA Standard or to apply any methodology for measuring space other than the BOMA
Standard. The arbitrator shall complete its determination within ten (10) Business Days after
appointment. The decision of the arbitrator shall be final and binding upon the parties. Each
party shall pay the fees and costs of its own counsel. Tenant shall pay the costs of the
arbitrator unless there is a discrepancy of one percent (1%) or more, in which case the
non-prevailing party shall pay the costs of the arbitrator. If any arbitrator fails, refuses or is
unable to act, his or her successor shall be appointed in the manner provided above.



ARTICLE 2

Term, Use of Premises and Base Rent




     2.1 Term.



          (a) Initial Term; Lease Year. Except as otherwise provided herein, the term “Term
Commencement Date” shall mean the earlier of (a) the date that is one hundred eighty (180) days
after the date on which Landlord delivers possession of the Premises to Tenant in the condition
required hereunder (the “Delivery Date”), or (b) the date on which Tenant commences business
operations in the Premises (as opposed to the construction of improvements or the installation of
furniture or equipment) but in no event shall the Delivery Date be earlier than May 1, 2008,
without Tenant’s consent. Notwithstanding the foregoing, Landlord shall permit Tenant access to
the Initial Premises for purposes of verifying existing conditions as required under Exhibit
C and for purposes of installing the Tenant Improvements for up to an additional sixty (60)
days without triggering the Delivery Date but only if the Base Building Improvements have been
completed and such access will not materially interfere with any remaining work to be completed by
Landlord. “Initial Term” of this Lease shall mean the number of years set forth in the Basic Lease
Information Sheet as Item 11, commencing on the Term Commencement Date through and
including the Expiration Date. “Expiration Date” shall mean the last day of the calendar month in
which the Term expires or such earlier date upon which this Lease is terminated pursuant to the
terms hereof. “Lease Year” shall mean each twelve (12) month period commencing on April 1 of each
calendar year following the Term Commencement Date and each anniversary thereof, during the Term
except that the first Lease Year shall commence on the Term Commencement Date and shall end on
March 31, 2009. Landlord shall use good faith efforts to keep Tenant informed as to the
anticipated delivery schedule. On or before December 31, 2007, Landlord will provide to Tenant a
status report on the progress of construction and the anticipated Delivery Date. Thereafter, if
the anticipated Delivery Date changes, Landlord will provide updates to Tenant at least once per
calendar month by delivering to Tenant the most recently updated construction schedule from the
Landlord’s general contractor. If the anticipated Delivery Date changes, then beginning three (3)
months prior to the anticipated Delivery Date, Landlord will provide Tenant with weekly updates on
the current status of the Delivery Date.



J-5









 





          (b) Extension Terms. Provided that no material Event of Default is outstanding under this
Lease at the time of exercise or at any time thereafter prior to the then-scheduled Expiration Date
and no more than (1) material Event of Default has occurred during the two (2) years of the Term of
this Lease immediately preceding the date on which Tenant’s Extension Notice is due, Tenant shall
have two (2) consecutive options (each an “Extension Option”) to extend the Term of this Lease with
respect to a minimum of fifty percent (50%) of the Initial Premises consisting of contiguous full
floors (which must include floor 11), for the number of years set forth in the Basic Lease
Information Sheet as “Extension Terms” in Item 11, commencing on the day after the
expiration of the Initial Term or the first Extension Term (as applicable), subject to all of the
terms and conditions of this Lease, except that Base Rent shall be adjusted as provided in
Section 2.6(b) below. The Extension Options shall immediately terminate and be of no
further force and effect if at any time after the earlier of (x) the date on which Tenant occupies
the Initial Premises or (y) one (1) year after the Term Commencement Date, Tenant ceases to lease
and occupy at least two hundred thousand (200,000) square feet of Net Rentable Area in the Building
located on contiguous floors and including no more than one partial floor. If Tenant is in default
at the time it exercises an Extension Option or at any time prior to the first day of such
Extension Term, then Landlord shall, in its sole discretion, have the right to cancel the Extension
Option on or before the date of commencement of the applicable Extension Term, if the default is
not cured within the applicable cure period permitted hereunder, if any. If Tenant wishes to
exercise an Extension Option, Tenant shall deliver an irrevocable written notice to Landlord at
least twelve (12) months prior to the expiration of the Initial Term or the first Extension Term,
as applicable (the “Extension Notice”). Any Extension Notice shall specify the portion of the
Premises for which Tenant’s exercise of the Extension Option will be applicable subject to the
minimum set forth above. If Tenant does not timely deliver an Extension Notice, then the Extension
Options shall immediately terminate and be of no further force or effect and this Lease shall
terminate on the scheduled Expiration Date. If Tenant does not exercise the first Extension Option
then the second Extension Option shall immediately terminate and be of no further force or effect.
The Extension Options shall be personal to Tenant, and may not be exercised by any Transferee
(other than a Qualified Transferee who takes an assignment of all of Tenant’s rights and
obligations under this Lease) without Landlord’s prior written consent. No further renewal or
extension options shall be permitted and such rights shall not be deemed to have been created by
Tenant’s exercise of the Extension Options herein. As used herein the “Term” shall mean the
Initial Term and each Extension Term if validly exercised.



     2.2 Delay in Delivery. Tenant acknowledges that the actual Delivery Date may be delayed
beyond the target Delivery Date set forth above and that Landlord shall not be liable for any such
delay. If the actual Delivery Date has not occurred by September 30, 2008 (as such date may be
extended due to delays caused by Tenant or its contractors and Force Majeure) then Tenant may elect
to cancel this Lease by written notice to Landlord provided that such termination shall not be
effective if the Delivery Date occurs within thirty (30) days after the date of delivery of such
notice.



     2.3 Confirmation. When the actual Term Commencement Date is determined, Tenant shall, within
ten (10) Business Days after receipt thereof, execute (or make good faith comments to) and return
to Landlord a Rent/Lease Commencement Certificate in the form of Exhibit E attached hereto,
or any similar form requested by Landlord, confirming the information thereon.



     2.4 Use. Subject to the restrictions set forth in Section 7.1, Tenant shall use the
Premises solely for executive, professional, corporate and administrative offices (the “Permitted
Use”) and may, at Tenant’s cost, include 24-hour operations, and for no other use or purpose.
Notwithstanding the foregoing, for the purpose of limiting the type of use permitted by Tenant, or
any party claiming through Tenant, but without limiting Landlord’s right to lease any portion of
the Building to a tenant of Landlord’s choice, the Permitted Use shall not include: (a) offices of
any agency or bureau of the United States or any state or political subdivision thereof; (b)
offices or agencies of any foreign government or political subdivision thereof; (c) offices of any
health care professionals or service organization, except



J-6









 




for administrative offices where no diagnostic, treatment or laboratory services are
performed; (d) schools or other training facilities that are not ancillary to Tenant’s business
operations; (e) retail or restaurant uses (provided that this exclusion shall not preclude Tenant
from installing and operating a lunchroom for Tenant’s employees and guests provided that the
lunchroom does not include major cooking equipment such as grills, ovens [other than microwave
ovens] and fryers); (f) broadcast studios or other broadcast production facilities, such as radio
and/or television stations; (g) offices at which deposits or bills are regularly paid in person by
customers; or (h) personnel agencies, except offices of executive search firms. With respect to
the exterior “Outdoor Amenity Area” to be located along Northeast 4th Street approximately where
indicated on Exhibit A, Landlord shall develop the area in cooperation with Tenant in order
to create a mutually acceptable amenity package which could include construction of an outdoor
sport court, outdoor barbeque/fireplace, patio area with “wi/fi” access and landscaping, provided
such improvements do not diminish the value of the Building, subject to Landlord’s review and
written approval. When developed, the Outdoor Amenity Area shall be made available to Tenant (at
no additional cost to Tenant) and other tenants in the Building on a reservation basis coordinated
by Landlord; however, Tenant shall have the first right to reserve the Outdoor Amenity Area at
certain times designated and agreed to by Landlord and Tenant. Provided Landlord and Tenant reach
agreement on the development of such area, Tenant shall be responsible for any incremental costs
incurred in connection with the design, construction or installation of the Outdoor Amenity Area in
excess of Landlord’s Base Building costs for the design, construction or installation of the
Outdoor Amenity Area depicted on Landlord’s marketing materials provided to Tenant, and may apply a
portion of the Cash Allowance to such costs. Tenant acknowledges that the costs of maintenance and
repair of the Outdoor Amenity Area will be included in Operating Costs.




     2.5 Payments by Tenant. As used herein, the term “Rent” shall include Base Rent, Operating
Costs (as defined in Article 4 below) and all other sums payable by Tenant to Landlord.
Tenant shall pay Rent at the times and in the manner herein provided. All obligations of Tenant
hereunder to make payments to Landlord shall constitute Rent and failure to pay the same when due
shall give rise to the rights and remedies provided herein.



2.6 Payment of Base Rent.




          (a) General. Tenant’s obligation to pay Rent and its other obligations under this Lease shall
commence upon the Term Commencement Date (except as expressly otherwise provided herein with
respect to obligations arising earlier). The annual increases in Base Rent shall occur on April 1
of each calendar year after the Term Commencement Date. Tenant shall pay the Base Rent in the
amounts set forth in the Basic Lease Information Sheet as Item 12 (as the same may be
adjusted from time to time hereunder) in advance on or before the first day of each calendar month
during the Term and any extensions or renewals thereof; provided, however, that
Base Rent for the first calendar month in which Base Rent for the Premises is payable shall be paid
on or before the Term Commencement Date. All payments of Rent due under this Lease shall be
payable in advance, without demand (except as specifically provided herein) and without reduction,
abatement (except as specifically provided herein), counterclaim or setoff (except as specifically
provided herein), at the address specified in the Basic Lease Information Sheet as Item 5,
or at such other address as may be designated by Landlord.



          (b) Adjustment
of Base Rent. If Tenant exercises an Extension Option under Section 2.1(b), the Base Rent for the Extension Term shall be the greater of: (i) ninety-five percent
(95%) of the Fair Market Rent (as defined in Section 2.6(c) below) based on a five (5) year
term to begin on the first day of the Extension Term (an “Adjustment Date”); or (ii) Twenty-eight
and 43/100 Dollars ($28.43) per square foot of Net Rentable Area per year for the length of the
Extension Terms.



          (c) Definition of Fair Market Rent. “Fair Market Rent” as of any Adjustment Date shall mean
the rate being charged during the preceding six (6) month period by direct landlords (including
Landlord), in nonsublease, nonassignment, nonequity, nonexpansion, and nonrenewing lease



J-7









 




transactions, for comparable space with comparable quality construction in the Building and
comparable projects in the Market Area (“Comparable Buildings”), taking into consideration such
things as: size (excluding any deals that are not multi floor transactions), location in the
Building or Comparable Buildings, conditions in Comparable Buildings location, quantity and quality
of tenant improvements or allowances existing or to be provided, extent of service provided or to
be provided, age, floor levels, common area factors, finish allowances, conditions or concessions
including rental abatements, parking charges or concessions, lease assumptions, moving allowances,
space planning allowances, refurbishment allowances, the time the particular rate under
consideration became or is to become effective, and any other concession or inducement, expense
stop, other rental adjustments, credit standing of tenant, lease term and any other terms that
would be relevant in making a market rate determination but excluding brokerage commissions. Fair
Market Rent may include periodic or annual increases if such increases are consistent with
then-existing market conditions. “Market Area” means Class A quality office projects and buildings
with comparable finishes and amenities located in the downtown Bellevue central business district.




               (i) Landlord’s Determination. The following procedure set forth in this Section
2.6(b)(i) will apply to establish the Fair Market Rent if (x) Tenant timely delivered an
Extension Notice or (y) Tenant and Landlord are determining the applicable rent payable for any
Offer Space leased by Tenant under Section 1.1(b) above. With respect to any Extension
Notice, not later than ninety (90) days prior to the Adjustment Date, Landlord will notify Tenant
of Landlord’s good faith determination of Fair Market Rent as of such Adjustment Date. Failure on
the part of Landlord to give such notice in a timely manner shall not vitiate the right to require
adjustment of Base Rent or delay the effective date of the adjustment in Base Rent. If Landlord
does not provide its good faith determination in a timely manner then Tenant may request in writing
that Landlord provide its determination and Landlord shall provide the good faith determination of
Fair Market Rent within thirty (30) days after receipt of such request. If Tenant disputes the
amount claimed by Landlord as Fair Market Rent, the parties shall attempt to agree on Fair Market
Rent within thirty (30) days after receipt of Landlord’s good faith determination of the Fair
Market Rent (the “Negotiation Period”). If such dispute is not resolved by mutual agreement within
the Negotiation Period, then either party may submit the issue to arbitration, as described below,
based on each party’s final proposal as to Fair Market Rent submitted in writing to the other party
prior to the end of the Negotiation Period (each a “Final Submission”). Should the arbitration not
be concluded prior to the Adjustment Date, Tenant shall pay Rent to Landlord after the Adjustment
Date at the rates applicable during the period immediately preceding the Adjustment Date. Any
adjustment required to correct the amount previously paid shall be made by payment by or to Tenant
within thirty (30) days after final determination of Fair Market Rent.



               (ii) Arbitration of Fair Market Rent. The award rendered in any such arbitration may be
entered in any court having jurisdiction and shall be final and binding between the parties. The
arbitration shall be conducted and determined in the City of Bellevue, Washington, in accord with
the then-prevailing commercial arbitration rules of the American Arbitration Association or its
successor for arbitration of commercial disputes except that the procedures mandated by said rules
shall be modified as follows:



                    (A) If the parties are unable to reach an agreement on Fair Market Rent during the Negotiation
Period, the party demanding arbitration shall, in its demand, specify the name and address of the
person to act as the arbitrator on its behalf. Each arbitrator hereunder shall be qualified as a
real estate appraiser with at least the immediately preceding five (5) years experience appraising
first-class commercial office space in the Market Area who would qualify as an expert witness over
objection to give testimony addressed to the issue in a court of competent jurisdiction and who is
unrelated to and does not otherwise perform any services for either party. Within ten (10)
Business Days after receipt of a demand for arbitration, the recipient shall give notice to the
other party specifying the name and address of the person to act as the arbitrator on its behalf.
If the recipient fails to timely notify the other party of



J-8









 




the appointment of its arbitrator, then the arbitrator appointed by the other party shall be
the arbitrator to determine the issue. When the arbitrator(s) have been selected, the parties
shall deliver to the arbitrator(s) a copy of each party’s Submission.




                    (B) If two (2) arbitrators are chosen pursuant to the preceding Section, the arbitrators so
chosen shall meet within ten (10) Business Days after the second arbitrator is appointed and
attempt to reach agreement as to which of the two (2) Final Submissions most closely reflects Fair
Market Rent. If, within ten (10) Business Days after such first meeting, the two (2) arbitrators
have not agreed upon a determination of Fair Market Rent, they shall, within an additional five (5)
Business Days, appoint a third arbitrator who shall be similarly qualified. If they are unable to
agree upon such appointment within such five (5) Business Day period, the third arbitrator shall be
selected by the parties themselves if they can agree thereon, within a further period of ten (10)
Business Days. If the parties do not so agree, then either party, on behalf of both, may request
appointment of such a qualified person by a court of the State of Washington sitting in King County
pursuant to RCW 7.04.050. Request for appointment shall be made in writing with a copy given to
the other party. Each party agrees that said court shall have the power to make the appointment;
provided, however, if the court does not make a determination within ten (10)
Business Days of request by either party for the appointment of a third arbitrator, appointment of
such third arbitrator shall be made in accordance with the selection procedure of the commercial
arbitration rules of the American Arbitration Association or its successor for arbitration of
commercial disputes. The three (3) arbitrators shall decide the dispute, if it has not previously
been resolved, by following the procedure set forth below.



                    (C) The arbitrator selected by each of the parties shall state in writing his determination of
which Final Submission most closely reflects the Fair Market Rent, supported by the reasons
therefor, and shall deliver a copy to each party. The arbitrators shall arrange for a simultaneous
exchange of such determinations to the other arbitrator and to the third (3rd) arbitrator. The
role of the third arbitrator shall be to select which of the two (2) Final Submissions most closely
approximates his determination of Fair Market Rent. The third arbitrator shall have no right to
propose a middle ground or any modification of either of the Final Submissions. The Final
Submission he chooses as most closely approximating his determination of Fair Market Rent shall
constitute the decision of the arbitrators and shall be final and binding upon the parties.



                    (D) If any arbitrator fails, refuses or is unable to act, his successor shall be appointed by
him, but in the case of the third arbitrator, his successor shall be appointed in the same manner
as provided for appointment of the third arbitrator. The arbitrators shall attempt to decide the
issue within ten (10) Business Days after the appointment of the third arbitrator. Any decision in
which the arbitrator appointed by Landlord and the arbitrator appointed by Tenant concur shall be
binding and conclusive upon the parties. Each party shall pay the fees and costs of its own
counsel and other consultants. The losing party shall pay the fees and costs of the arbitrators
and of the expert witnesses (if any) of the prevailing party as well as those of its expert
witnesses. For purposes hereof, the losing party shall be that party whose Final Submission was
not selected by the third arbitrator.



                    (E) The arbitrators shall have the right to consult experts and competent authorities with
factual information or evidence pertaining to a determination of Fair Market Rent, but any such
consultation shall be made in the presence of both parties with full right on their part to
cross-examine. The arbitrators will be required to refer to the definition of Fair Market Rent set
forth herein in making their determination and will not be permitted to refer to any other
valuation methodology or declaration. The arbitrators shall render their decision and award in
writing and shall deliver copies to each party. The arbitrators shall have no power to modify the
provisions of this Lease.



     2.7 Partial Months. If the Term Commencement Date occurs on other than the first day of a
calendar month, then Base Rent and Operating Costs for such partial calendar month shall be
prorated based on the actual number of days in the month and the prorated installment shall be paid
on the Term



J-9









 




Commencement Date together with any other amounts payable on that day. If the Expiration Date
occurs on other than the last day of a calendar month, then Base Rent and Operating Costs for such
partial calendar month shall be prorated based on the actual number of days in the month and the
prorated installment shall be paid on the first day of the calendar month in which the Expiration
Date occurs.




ARTICLE 3

Security Deposit

[Intentionally Omitted]




ARTICLE 4

Payment of Operating Costs




     4.1 Net Lease. This is a net lease. Except as otherwise provided herein, Base Rent shall be
paid to Landlord absolutely net of all costs and expenses. The provisions of this Article
4 for payment of Operating Costs by means of periodic payment of Tenant’s Proportionate Share
(as defined in Section 4.3) of Estimated Operating Costs (as defined in Section
4.2) and the Operating Costs Adjustment (as defined in Section 4.6) are intended to
pass on to Tenant and reimburse Landlord for Tenant’s Proportionate Share of all costs and expenses
of the nature described in Section 4.4.



     4.2 Estimated Payments. Tenant shall pay Tenant’s Proportionate Share of Estimated Operating
Costs in advance on or before the first day of each calendar month during the Term and any
extensions or renewals thereof. “Estimated Operating Costs” for any calendar month shall mean
Landlord’s estimate of Operating Costs for the calendar year within which such month falls, divided
into twelve (12) equal monthly installments. Landlord shall provide Tenant with a statement
setting forth the Estimated Operating Costs and Tenant’s Proportionate Share thereof within a
reasonable period of time not later than sixty (60) days before the Term Commencement Date and the
commencement of each calendar year thereafter. Landlord’s annual statement of estimated Operating
Costs for any ensuing year shall be set forth in reasonable detail and shall contain (i) a
breakdown of component costs by major cost category, and (ii) the method of calculation of any
adjustment performed by Landlord in estimating Operating Costs pursuant to the terms of Section
4.5 below. Landlord may, in good faith, adjust such estimate from time to time by written
notice but not more often than twice in any calendar year. Until a new statement of Estimated
Operating Costs is received Tenant shall continue to make the monthly payment of Estimated
Operating Costs applicable to the prior year.



     4.3 Tenant’s Proportionate Share. “Tenant’s Proportionate Share” shall be calculated by
Landlord for each calendar year of the Term and shall mean a percentage equal to the Net Rentable
Area of the Premises divided by the greater of (a) ninety-five percent (95%) of the total Net
Rentable Area in the Building leased or held for lease, or (b) the Net Rentable Area of the
Building actually leased to tenants. As of the date of this Lease, Tenant’s Proportionate Share is
estimated to be the percentage set forth in the Basic Lease Information Sheet as Item 8.



     4.4 Operating Costs. “Operating Costs” shall, subject to the exclusions set forth below, mean
all expenses and costs (but not specific costs that are separately billed to and payable by
specific tenants) that Landlord shall pay or incur or become obligated to pay or incur (including,
without limitation, costs incurred by managers and agents that are reimbursed by Landlord) (without
duplication) in the management, repair, maintenance, replacement, preservation, and operation of
the Building and any supporting facilities directly serving the Building (as allocated to the
Building in accordance with standard accounting principles), calculated in accordance with standard
accounting principles and commercially reasonable property management practices, both consistently
applied on a year-over-year basis). Operating Costs shall include, but not be limited to the
following expenses:



          (a) Wages, salaries, reimbursable expenses and benefits of all on-site and off-site personnel
(including supervisory personnel who are directly involved in the management of the Building)
engaged in the operation, repair, maintenance and security of the Building (prorated, in the case
of



J-10









 




employees, including supervisory personnel, performing services for one or more properties, on
the basis of the reasonably allocated number of hours spent performing services for the Building)
and the direct costs of training such employees.




          (b) Costs (including allocated rental) for the property management (but not leasing) office
and office operation (provided that if the property management office serves more than one Building
or property, such costs shall be allocated on an equitable and consistent basis, year over year,
among the properties for which such office provides management services); costs of operating
exercise facilities in the Building, if any, available for use by tenants, including the cost of
acquiring or leasing equipment therein (less revenues actually received in connection with the use
thereof); and costs of operating any conference facilities in the Building, if any, available for
use by tenants, including the cost of acquiring or leasing equipment therein (less revenues
received in connection with the use thereof).



          (c) All supplies, materials, furniture and rental equipment used in the operation and
maintenance of the Building, including, without limitation, the reasonable cost of erecting,
maintaining and dismantling art work and similar decorative displays commensurate with operation of
Comparable Buildings.



          (d) Utilities, including, without limitation, water, gas, power, sewer, waste disposal,
communication and cable television facilities, heating, cooling, lighting and ventilation of the
Building.



          (e) All maintenance, extended warranties (amortized over the period of such warranty),
janitorial and service agreements for the Building and the equipment therein, including, but not
limited to, alarm service, window cleaning, elevator maintenance, and maintenance and repair of the
Building and all Building Components.



          (f) A management fee equal to three percent (3%) of all revenue derived from the Building,
including without limitation, all Rent hereunder, all rent and other payments derived from other
tenants in the Building (excluding sums paid in reimbursement of the management fee), parking
revenue, and other revenues derived from licenses of any other part of or right in the Building.



          (g) Legal and accounting services for the Building, including, but not limited to, the costs
of annual audits by certified public accountants of Operating Costs records in order to produce
statements of estimated and actual Operated Costs (other than reimbursement of any audit costs due
Tenant under Section 4.9 or any other tenant under similar provisions in their respective
leases or the cost of defending or completing audits of Landlord’s books and records by tenants
pursuant to provisions similar to Section 4.4); provided, however, that
Operating Costs shall not include legal fees related to (i) negotiating lease terms for prospective
tenants, (ii) negotiating termination or extension of leases with existing tenants, (iii)
proceedings against tenants for the collection of rent or other sums due Landlord from such
tenants; or (iv) the initial development and/or initial construction of the Building.



          (h) All insurance premiums and costs, including but not limited to, the premiums and cost of
fire, casualty, liability, rental abatement or interruption and earthquake insurance applicable to
the Building and Landlord’s personal property used in connection therewith (and all amounts paid as
a result of loss sustained that would be covered by such policies but for commercially reasonable
“deductible” or self-insurance provisions); provided, however, that the deductible
or self-insured retention for earthquake and terrorism coverage (or any other coverage for which
deductibles are commonly stated as a percentage of value or are otherwise higher than normal
casualty coverage limits) shall not exceed ten percent (10%) of Operating Costs in any calendar
year, and if any deductible or self-insured retention described in the preceding clause is not
fully recouped in the year in which the insured event occurs, the balance of the deductible shall
be included in Operating Costs in subsequent years provided that the maximum pass through in any
year shall not exceed ten percent (10%) of Operating Costs for that year and in no event shall the
deductible for any occurrence be passed through for more than five (5) years.



J-11









 





          (i) Repairs, replacements and general maintenance of the Building (except for repairs and
replacements (x) paid for from the proceeds of insurance [and Landlord hereby agrees to use
diligent, good faith efforts to obtain in each instance the maximum possible recovery from
available insurance coverage], or (y) payable directly by Tenant, other tenants or any third
party).



          (j) All real and personal property taxes, assessments, local improvement or special benefit
district charges and other governmental charges, special and general, known and unknown, foreseen
and unforeseen, of every kind and nature whatsoever: (i) attributable to the Real Property or the
Building or levied, assessed or imposed on, the Real Property or the Building, or any portion
thereof, or interest therein; (ii) attributable to or levied upon Landlord’s personal property
located in, and/or used in the operation of the Building; (iii) surcharges and all local
improvement or special benefit and other assessments levied with respect to the Building, the Real
Property, and all other property of Landlord used in the operation of the Building; (iv) any taxes
levied or assessed in lieu of, in whole or in part, or in addition to such real or personal
property taxes; (including, but not limited to, leasehold taxes, business and occupation taxes and
taxes or license fees upon or measured by the leasing of the Building or the rents or other income
collected therefrom; and (v) any and all reasonable costs, expenses and attorneys’ fees paid or
incurred by Landlord in connection with any proceeding or action to contest in whole or in part,
formally or informally, the imposition, collection or validity of any of the foregoing taxes,
assessments, charges or fee (collectively, “Real Property Taxes”). If by law any Real Property
Taxes may be paid in installments at the option of the taxpayer, then Landlord shall include within
Real Property Taxes for any year only those installments (including interest, if any) which would
become due by exercise of such option. Real Property Taxes shall not include (x) inheritance or
estate taxes imposed upon or assessed against the Building, or any part thereof or interest
therein, or (y) federal or state income taxes computed upon the basis of the Landlord’s net income.
If Landlord receives a refund of Real Property Taxes, or a credit against its future Real Property
Taxes, for any calendar year, Landlord shall, at its election, either pay to Tenant, or credit
against subsequent payments of Rent due hereunder, an amount equal to Tenant’s Proportionate Share
of the refund, net of any reasonable expenses incurred by Landlord in achieving such refund;
provided, however, if this Lease shall have expired or is otherwise terminated, Landlord shall
refund in cash any such refund or credit due to Tenant within thirty (30) days after Landlord’s
receipt of such refund or its receipt of such credit against future Real Property Taxes. Real
Property Taxes shall not include (A) any excess profits taxes, franchise taxes, gift taxes, capital
stock taxes, inheritance and succession taxes, estate taxes, federal and state income taxes, and
other taxes to the extent applicable to Landlord’s general or net income (as opposed to rents or
receipts), (B) penalties incurred as a result of Landlord’s negligence, inability or unwillingness
to make payments of, and/or to file any tax or informational returns with respect to, any Real
Property Taxes, when due, except to the extent caused by Tenant’s failure to pay Rent when required
hereunder, (C) any real estate taxes directly payable by Tenant or any other tenant in the Building
under the applicable provisions in their respective leases, (D) any items included as Operating
Costs or specifically excluded from Operating Costs, (E) any gross receipts or gross income taxes
to the extent that same are substituted for any net income taxes, (F) any hotel, sales, gross
receipts or business entity fee (unless such taxes of fees replace the current system of real
property taxes in effect as of the date hereof), and (G) mitigation or impact fees or subsidies,
imposed or incurred as a condition of the initial construction, but not ongoing operation or
ownership of, the Building (“Initial Assessments”).



          (k) Amortization (together with interest at the Prime Rate plus two and one-half percent
(2-1/2%) per annum) of capital improvements made: (i) to comply with the requirements of law,
ordinance rule or regulation first enacted or enforced against the Building after the issuance of
the building permit for the Base Building, (ii) to replace items which Landlord would be obligated
to maintain under this Lease; or (iii) for the purpose of energy conservation or to improve the
operating efficiency or reduce Operating Costs of the Building if Landlord reasonably believes the
amortized cost will approximate the cost savings over the useful life of the item in question.
Upon request, Landlord will provide Tenant with the basis for Landlord’s belief that the amortized
cost of item in question will



J-12









 




approximate the cost savings over its useful life. As used in this Section, (A)
“amortization” shall mean allocation of the cost equally to each year of useful life (measured by a
commercially reasonable standard), as reasonably calculated by Landlord, of the items being
amortized, and (B) “Prime Rate” shall mean The Wall Street Journal Prime Rate as published from
time to time. Notwithstanding the foregoing, Landlord may treat as expenses (chargeable in the
year incurred), and not as capital costs, items that on a cumulative basis are less than two
percent (2%) of Estimated Operating Costs for the year in question.




          (l) All charges of any kind and nature, but excluding Initial Assessments, imposed, levied,
assessed, charged or collected by any governmental authority or other entity either directly or
indirectly: (i) for or in connection with public improvements, user, maintenance or development
fees, transit, parking, housing, employment, police, fire, open space, streets, sidewalks,
utilities, job training, child care or other governmental services or benefits; or (ii) for
environmental matters (unless arising from a violation of applicable Hazardous Materials Laws
resulting from Landlord’s gross negligence or willful misconduct) or as a result of the imposition
of mitigation measures, including compliance with any transportation management plan, or fees,
charges or assessments as a result of the treatment of the Building, or any portion thereof or
interest therein, as a source of pollution or storm water runoff.



     Notwithstanding the foregoing, Operating Costs shall not include:



               (i) any sums collected from other Building tenants for special services provided to such
tenant, in excess of the services provided to Tenant hereunder;



               (ii) amounts received from insurance claims and costs of repair and reconstruction related
thereto to the extent of insurance proceeds received by Landlord (other than commercially
reasonable deductible amounts under applicable insurance policies) (and Landlord hereby agrees to
use diligent good faith efforts to obtain in each instance the maximum recovery from available
insurance coverage), or the extent that Landlord would have received such proceeds had Landlord
maintained the insurance coverage required under this Lease;



               (iii) ground rent (if any);



               (iv) interest or loan fees incurred in connection with any loan secured by the Building or the
Real Property;



               (v) costs of work to the Building that are necessary to comply with applicable laws,
regulations, ordinances or codes relating to the initial construction of the Base Building in
effect as of the date on which the building permit was issued;



               (vi) leasing commissions;



               (vii) except as permitted under Section 4.4(k) above, depreciation or amortization of
the Building or Building Components or any expenses that should be capitalized in accordance with
standard accounting practices (similar to those accounting practices used by owners of Comparable
Buildings), consistently applied;



               (viii) any penalties due to violation of law or fines imposed for late payment of any
Operating Costs by Landlord or interest thereon, unless such penalties, interest or fines were
caused directly or indirectly by Tenant;



               (ix) attorneys’ fees, costs, disbursements and other expenses incurred in connection with rent
disputes with tenants, or lease negotiations with prospective or existing tenants;



               (x) marketing and promotional costs relating to securing new tenants;



               (xi) Landlord’s general corporate overhead and general and administrative expenses, other than
a commercially reasonable allocation of costs relating to accounting, payroll, legal



J-13









 




and computer services even if such services are partially or totally rendered in locations
outside the Building;




               (xii) costs of special services (which shall not cover normal variations in repairs or the
need for repairs) not rendered to tenants generally;



               (xiii) the costs of electrical power provided to the premises of other tenants or occupants of
the Building on a separately metered (i.e., “direct pay”) basis to the extent usage exceeds the
Building’s standard allocation;



               (xiv) repairs or rebuilding necessitated by condemnation to the extent covered by condemnation
awards or payments in lieu thereof, received by Landlord;



               (xv) tenant concessions and any other costs associated with the leasing or sale of the
Building, Property or any portion thereof;



               (xvi) Landlord’s costs of any service sold to any tenant or occupant of the Building for which
Landlord is reimbursed as an additional charge or rental over and above the basic rent and
escalations payable under the lease or occupancy agreement with that tenant or other occupant
(including, without limitation, after-hours HVAC costs or over-standard electrical consumption
costs paid by other tenants or occupants);



               (xvii) the cost of the initial construction of the Base Building;



               (xviii) reserves of any kind;



               (xix) expenses for repairs, replacements or improvements arising from the initial construction
of the Base Building to the extent such expenses are either (i) reimbursed to Landlord by virtue of
warranties from contractors or suppliers or (ii) result from reason of structural or latent defects
in the Base Building;



               (xx) costs relating to maintaining Landlord’s existence, either as a corporation, partnership,
or other entity, such as trustee’s fees, annual fees, partnership or organization or administration
expenses, deed recordation expenses, as well as the operation of the entity which constitutes
Landlord, as the same are distinguished from the costs of operation of the Building, as well as
partnership accounting and legal matters, costs of defending any lawsuits with any mortgagee, costs
of selling, syndicating, financing, mortgaging or hypothecating any of Landlord’s interest in the
Building or any part thereof, legal fees, awards or judgments incurred with respect to any disputes
between Landlord and its employees or disputes between Landlord and Building management or
personnel;



               (xxi) to the extent such facilities or services are not available to all tenants in the
Building, (i) the cost of installing, operating and maintaining any specialty service, observatory,
broadcasting facilities, luncheon club, museum, athletic or recreational club, or child care
facility, and (ii) the cost of installing, operating and maintaining any other service operated or
supplied by or normally operated or supplied by a third party under an agreement between a third
party and a landlord;



               (xxii) any compensation paid to clerks, attendants or other persons in commercial concessions
operated by Landlord (other than a concierge service provided to all tenants);



               (xxiii) the cost of leasing any item, the purchase price of which, if purchased, would not be
included as an Operating Cost;



               (xxiv) costs for acquisition of sculpture, paintings, other objects of art except for holiday
decorations;



               (xxv) the entertainment expenses and travel expenses of Landlord, its employees (above Group
Manager level), agents, partners and affiliates;



J-14









 





               (xxvi) costs attributable to any revenue generating signs or any rooftop equipment, fixtures,
or installations which are not generally available for use to all tenants at the same cost; and



               (xxvii) increased costs resulting from Landlord’s violation of the provisions of any lease in
the Building.



     4.5 Adjustment for Occupancy. Notwithstanding any other provision herein to the contrary, if
during any year of the Term the Building is not fully occupied or all premises within the Building
do not receive Basic Services (as defined in Section 5.1 below), then an adjustment shall
be made in computing variable Operating Costs for such year so that variable Operating Costs shall
be computed as though the Building had been fully occupied and provided with Basic Services during
such year; provided, however, that (i) Landlord shall not make a profit by charging items to
Operating Costs that are otherwise also charged separately to others and (ii) in no event shall
Landlord collect in total, from Tenant and all other tenants of the Building, an amount greater
than one hundred percent (100%) of Operating Costs during any year of the Term. As used herein
“Variable Operating Costs” shall mean those Operating Costs that change due to changes in the
occupancy level within the Building, such as janitorial services for tenant occupied spaces.



     4.6 Computation of Operating Costs Adjustment. The term “Operating Costs Adjustment” for any
calendar year shall mean the difference, if any, between Estimated Operating Costs and actual
Operating Costs for that calendar year. Landlord shall, within a reasonable period of time after
the end of any calendar year for which Estimated Operating Costs differs from actual Operating
Costs, give written notice thereof to Tenant (a “Cost Statement”). The Cost Statement shall
include a statement of the total Operating Costs applicable to such calendar year and the
computation of the Operating Costs Adjustment, including the following major categories and
subcategories of Expenses: maintenance and repairs (cleaning; security; elevators; supplies; waste
removal; heating, ventilation and air conditioning; landscaping); utilities (electricity; gas; and
water and sewer); insurance; salaries (engineering; and administrative); general and administrative
(management fees; professional services; office supplies; and other) and Real Property Taxes, the
amounts charged to all tenants and Tenant’s Proportionate Share thereof, Landlord’s reconciliation
between Tenant’s estimated payments and actual amounts due, and Landlord’s adjustment calculations
and recalculations, if any, pursuant to Section 4.5. Landlord’s failure to give such Cost
Statement within a reasonable period of time after the end of any calendar year for which an
Operating Costs Adjustment is due shall not release either party from the obligation to make the
adjustment provided for in Section 4.7. Tenant shall have no liability for any amounts of
Operating Costs which may be invoiced for any given calendar year more than two (2) years after the
expiration of such calendar year, except for amounts relating to Real Property Taxes for which
appeals of valuations or assessments are pending. Landlord shall have no liability for refund or
credit of any Rent paid by Tenant for any given calendar year more than two (2) years after the
expiration of such calendar year except to the extent provided in connection with Tenant’s audit
right under Section 4.9, and except for amounts relating to Real Property Taxes for which
appeals of valuations or assessments are pending.



     4.7 Adjustment for Variation Between Estimated and Actual. If Tenant’s Proportionate Share of
Operating Costs for any calendar year exceeds the payments received by Landlord towards Tenant’s
Proportionate Share of Estimated Operating Costs for such year, Tenant shall pay to Landlord
Tenant’s Proportionate Share of the Operating Costs Adjustment within thirty (30) days after the
date of delivery of the Cost Statement. In no event shall Tenant’s payment of such Tenant’s
Proportionate Share of the Operating Costs Adjustment constitute an agreement, acknowledgement or
consent by Tenant that such amount is correct or is owed by Tenant, or a waiver of any of Tenant’s
audit or other rights hereunder. If Tenant’s Proportionate Share of Operating Costs for any
calendar year is less than the payments received by Landlord towards Tenant’s Proportionate Share
of Estimated Operating Costs for such year, then Landlord, at Landlord’s option, shall either (a)
pay Tenant’s Proportionate Share of the Operating Costs Adjustment to Tenant in cash within thirty
(30) days following the delivery of the Cost



J-15









 




Statement, or (b) credit said amount against future installments of Estimated Operating Costs
payable by Tenant hereunder; provided that if the Term is scheduled to expire prior to the
completion of any such credit, Landlord will pay any remaining balance to Tenant within fifteen
(15) days after expiration of this Lease. If the Term commences or terminates at any time other
than the first day of a calendar year, Tenant’s Proportionate Share of the Operating Costs
Adjustment shall be calculated based upon the exact number of calendar days during such calendar
year that fall within the Term, and any payment by Tenant required hereunder shall be paid even if
the Term has expired when such determination is made.




     4.8 Cap on Controllable Operating Costs. Notwithstanding anything in this Article 4
to the contrary, the amount of Controllable Operating Costs charged to and payable by Tenant for
each year shall not increase by more than the greater of (i) four percent (4%) per year on a
cumulative, annually compounding basis over the then-expired portion of the Term, or (ii) the
cumulative increase in the CPI Index (as defined in Section 13.4 below) over the
then-expired portion of the Term. “Controllable Operating Costs” shall mean Operating Costs other
than: utilities charges, insurance premiums and deductibles, union wages, any service contracts
which are competitively bid, government imposed charges which are Operating Costs (including Real
Property Taxes) and any other items outside of Landlord’s reasonable control.



     4.9 Audit Right. Tenant shall have the right to conduct an audit of Landlord’s books and
records relating to Operating Costs during the immediately preceding two (2) calendar years
provided that Tenant delivers to Landlord written notice of its intent to audit within ninety (90)
days after receipt by Tenant of Landlord’s Cost Statement for either of the two (2) years or one
hundred twenty (120) days after expiration of this Lease. Tenant must complete such audit within
one hundred and twenty (120) days after the date of Tenant’s notice of intent to audit. Tenant’s
right to audit is subject the following terms and conditions:



          (a) Tenant may not conduct an audit if an Event of Default is outstanding with respect to
payment of Base Rent or Tenant’s Proportionate Share of Operating Costs.



          (b) Tenant shall have the right to have an employee of Tenant or a Qualified Auditor (as
defined below) inspect Landlord’s accounting records at Landlord’s office no more than once per
calendar year (which inspection may occur over multiple days).



          (c) Neither the employee of Tenant nor the Qualified Auditor shall be employed or engaged on a
contingency basis, in whole or in part.



          (d) Prior to commencing the audit, Tenant and the auditor shall: (i) provide Landlord with
evidence that the individual performing the audit is a certified public accountant (a “Qualified
Auditor”); (ii) each sign a confidentiality letter to be provided by Landlord, consistent with the
provisions of this Section 4.9; and (iii) provide Landlord with evidence of the fee
arrangement between the auditor and Tenant.



          (e) The audit shall be limited solely to confirming that the Operating Costs reported in the
Landlord’s Cost Statement are consistent with the terms of this Lease. The auditor shall not make
any judgments as to the reasonableness of any item of expense and/or the total Operating Costs of
the Building, nor shall such reasonableness be subject to audit except where this Lease
specifically states that a particular item must be reasonable.



          (f) If Tenant’s auditor finds errors or overcharges in Landlord’s Cost Statement that Tenant
wishes to pursue, then within the time period set forth above Tenant shall advise Landlord thereof
in writing with specific reference to claimed errors and overcharges and the relevant Lease
provisions disqualifying such expenses. Landlord shall have a reasonable opportunity to meet with
Tenant’s auditor (and any third auditor selected hereinbelow, if applicable) to explain its
calculation of Operating Costs, it being the understanding of Landlord and Tenant that Landlord
intends to operate the Building as a first-class office building with services at or near the top
of the market. If Landlord agrees with said findings,



J-16









 




appropriate rebates or charges shall be made to Tenant. If Landlord does not agree, Landlord
shall engage its own auditor to review the findings of Tenant’s auditor and Landlord’s books and
records. The two (2) auditors and the parties shall then meet to resolve any difference between
the audits.




          (g) If agreement cannot be reached within two (2) weeks thereafter, then the auditors shall
together select a third auditor (who shall be a Qualified Auditor not affiliated with and who does
not perform services for either party or their affiliates) to which they shall each promptly submit
their findings in a final report, with copies submitted simultaneously to the first two (2)
auditors, Tenant and Landlord. Within two (2) weeks after receipt of such findings, the third
auditor shall determine which of the two reports best meets the terms of this Lease, which report
shall become the “Final Finding”. The third auditor shall not have the option of selecting a
compromise between the first two auditors’ findings, nor to make any other finding.



          (h) If the Final Finding determines that Landlord has overcharged Tenant, Landlord shall
credit Tenant toward the payment of the Base Rent next due and payable under this Lease the amount
of such overcharge. If the Final Finding determines that Tenant was undercharged, then within
twenty (20) days after the Final Finding, Tenant shall reimburse Landlord the amount of such
undercharge.



          (i) If the Final Finding results in a credit to Tenant in excess of three percent (3%) of
Tenant’s Proportionate Share of the Operating Costs for a calendar year subject to the audit,
Landlord shall pay its own audit costs and reimburse Tenant for its costs associated with said
audits. In all other events, each party shall pay its own audit costs, including one half (1/2) of
the cost of the third auditor.



          (j) The results of any audit of Operating Costs hereunder shall be treated by Tenant, all
auditors, and their respective employees and agents as confidential, and shall not be discussed
with nor disclosed to any third party, except for disclosures required by applicable law, court
rule or order or in connection with any litigation or arbitration involving Landlord or Tenant.



     4.10 Review, Approval of Budget. At all times during the Term during which Tenant is leasing
one hundred percent (100%) of the Net Rentable Area of the office portion of the Building, Tenant
shall have the right to review and approve Landlord’s proposed annual budget for Operating Costs,
which approval shall not be unreasonably withheld, delayed or conditioned; provided,
however, that in no event shall Landlord be required to provide any services for which
Tenant will not approve the budgeted cost nor reduce any service if and to the extent Landlord
believes to do so would adversely affect the value of the Building. During periods when Tenant is
entitled to review and approve the proposed annual budget for Operating Costs hereunder, the
parties agree as follows: (i) Landlord shall deliver to Tenant its preliminary proposed annual
budget for Operating Costs on or before September 1 of the year preceding such budget year; (ii)
any changes proposed by Tenant must be specified in detail in a written notice to Landlord no later
than twenty (20) Business Days following Tenant’s receipt of the proposed budget; and (iii)
Landlord shall deliver to Tenant its final proposed annual budget for Operating Costs on or before
December 1 of the year preceding such budget year.



ARTICLE 5

Landlord’s Covenants




     5.1 Basic Services. Landlord shall maintain and operate the Building in a first class manner
consistent with Comparable Buildings, and provide ingress and egress control services to the
Building in a first class manner consistent with the Comparable Buildings. During Tenant’s
occupancy of the Premises Landlord shall provide the following (“Basic Services”):



          (a) Cold water for restroom and drinking fountain purposes and hot water (other than hot water
for special needs which will be supplied as an Extra Service) for restroom purposes, at those
points of supply provided generally for use of tenants in the Building.



J-17









 





          (b) Central heat, ventilation and air conditioning (“HVAC”) in season sufficient to meet the
requirements set forth on Schedule C-1 under “Indoor Design Conditions,” for office usage
during Normal Office Hours. If Tenant installs supplemental HVAC units to serve the Premises then
there shall be separate meters installed by Tenant as part of the Tenant Improvements and Tenant
shall pay for the cost of electricity consumed by such units based on such measured usage, based on
an hourly charge reflecting Landlord’s full cost (including a commercially reasonable allocation
for on-site engineers if and to the extent such engineers are involved) but without a mark-up for
profit. Notwithstanding the foregoing, Landlord will not charge Tenant directly for responding to
hot/cold calls for Building Standard Improvements.



          (c) Routine maintenance, repairs, structural and exterior maintenance (including exterior
glass and glazing and interior glass and glazing in Common Areas), painting and electric lighting
service for all public areas and special service areas of the Building in good condition, in
compliance with all applicable Laws and in a manner consistent with first-class office buildings.
Landlord’s obligation with respect to repair as part of Basic Services under this Section
5.1 shall be limited to (i) the structural portions of the Building, (ii) the exterior walls of
the Building, including glass and glazing, (iii) the roof, (iv) mechanical (including without
limitation, Base Building HVAC and elevators), electrical, plumbing and life safety systems that
are considered Building Standard Improvements (as defined in Schedule C-2 attached hereto)
and all replacements of same, and (v) Common Areas.



          (d) Janitorial service on a five (5) day week basis, excluding holidays.



          (e) An electrical system to convey power delivered by public utility or other providers
selected by Landlord, in amounts sufficient for normal office operations during Normal Office Hours
as provided in similar office buildings and to satisfy the requirements set forth on Schedule
C-1 under “Electrical System.” If Tenant’s electrical consumption, as reasonably estimated by
Landlord based upon rated capacity (or based upon metered consumption), exceeds the wattage per
square foot of Net Rentable Area set forth in Schedule C-1, Tenant shall pay the actual
cost of any such excess consumption together with any additional cost necessary to provide such
excess capacity. If the installation and operation of Tenant’s electrical equipment requires
additional air conditioning capacity above that provided by the Building Standard Improvements,
then (i) Landlord will notify Tenant and the parties will thereafter meet and confer in good faith
in an effort to determine the most cost effective manner in which to mitigate the effects of such
equipment on the Building’s air conditioning system, and (ii) the cost of installing additional air
conditioning and operation which Landlord reasonably determines is required (including utilities)
shall be paid by Tenant; any charges for electrical consumption described herein will be billed to
Tenant at the actual cost of electrical consumption billed at the average cost per kilowatt-hour
without any mark-up or service charge, such that in no event will Tenant pay Landlord a higher rate
per kilowatt-hour than Landlord actually pays the appropriate utility, and shall be considered an
Extra Service, subject to the provisions of Section 5.4 below except Landlord shall not
charge any additional fee for the electrical service. Tenant covenants that Tenant’s use and
consumption of electric current shall not at any time exceed the capacity of any of the electrical
facilities and installations in or otherwise serving or being used in the Premises and Tenant
shall, upon the submission by Landlord to Tenant of written notice specifying Landlord’s belief
that Tenant’s use may exceed such capacity, promptly meet and confer in good faith with Landlord in
a mutual effort to determine the most cost-effective manner in which to mitigate Tenant’s usage so
as not to exceed such capacity. If, within thirty (30) days following the parties’ initial
meeting, the parties have failed to reach agreement as to the appropriate method of mitigation, at
Landlord’s written request, either (A) Tenant shall promptly cease the use of any of Tenant’s
electrical equipment which Landlord in good faith believes will cause Tenant to exceed such
capacity or (B) Landlord shall have the right to install electrical meters measuring Tenant’s usage
at Tenant’s cost and to bill Tenant for the actual cost of any such excess electrical usage.



          (f) Installation, maintenance and replacement of Building standard lamps, bulbs and ballasts
used in the Premises.



J-18









 





          (g) Security service for the Building commensurate with the levels and types of security
service provided at Comparable Buildings, including electronic card key access; provided, however,
that the security service shall be provided by unarmed personnel and shall not include alarm
systems for special surveillance of the Premises; and provided, further, that
notwithstanding anything to the contrary contained herein Landlord shall not be liable to Tenant or
any third party for any breach of security or any losses due to theft, burglary, battery or for
damage done or injury inflicted by persons in or on the Building except to the extent that Landlord
acted in a grossly negligent manner in selecting and/or retaining the security firm. Tenant
acknowledges that the actions of individual security personnel retained by the security firm shall
not be imputed to Landlord. Landlord’s current security/access control equipment will initially be
as described in Schedule C-1 attached hereto. If Tenant provides Landlord with written
notice of any complaints with respect to security at the Building Landlord shall meet with Tenant
to discuss possible measures to enhance security. Landlord shall not be obligated to implement any
measures that it does not reasonably consider to be commensurate with the levels and types of
security service provided at Comparable Buildings. Any costs of implementing additional security
shall be an Operating Cost or shall be paid in full by Tenant if Landlord cannot pass through the
cost to other Building tenants under the terms of their leases. Tenant may, at its own expense,
install its own security system (“Tenant’s Security”) in the Premises and common stairwells of the
Building; provided, however, that Tenant shall coordinate the design, installation
and operation of Tenant’s Security with Landlord to assure that Tenant’s Security is compatible,
and does not interfere, with the Base Building security system. Tenant shall be solely responsible
for the monitoring and operation of Tenant’s security system.



          (h) Public elevator service to the Garage and the floors on which the Premises are situated on
a twenty-four (24) hour per day, seven (7) day a week basis provided that access may be monitored
or restricted to holders of electronic access card keys outside Normal Office Hours.



          (i) Window washing equivalent to that provided at Comparable Buildings.



          (j) A reasonable allocation of riser/conduit space to accommodate Tenant’s needs for its
Permitted Use.



     5.2 Hours of Operation. The term “Business Days” shall mean Monday through Friday, excluding
State and Federal holidays. The term “Normal Office Hours” shall mean Business Days from 7:00 a.m.
to 6:00 p.m., and Saturdays from 9:00 a.m. to 1:00 p.m.



     5.3 Interruption. Landlord shall not be liable for damages to either person or property, nor
shall Landlord be deemed to have evicted Tenant, nor, except as expressly set forth in this Lease,
shall there be any abatement of Rent, nor, except as set forth herein, shall Tenant be relieved
from performance of any covenant on its part to be performed hereunder by reason of (a)
interruption of, or deficiency in, the provision of Basic Services; (b) breakdown or malfunction of
lines, cables, wires, pipes, equipment or machinery utilized in supplying or permitting Basic
Services or telecommunications; or (c) curtailment or cessation of Basic Services due to causes or
circumstances beyond the reasonable control of Landlord, including but not limited to (i) strikes,
lockouts or other labor disturbance or labor dispute of any character, (ii) governmental
regulation, moratorium or other governmental action, (iii) inability, despite the exercise of
reasonable diligence, to obtain electricity, water or fuel from the providers thereof, (iv) acts of
God, and (v) war, terrorism, civil unrest, and rioting. Landlord shall use reasonable diligence to
make such repairs as may be required to lines, cables, wires, pipes, equipment or machinery within
the Building to provide restoration of Basic Services and, where the cessation or interruption of
Basic Services has occurred due to circumstances or conditions beyond Real Property boundaries or
outside the Landlord’s control, to cause the same to be restored, by application or request to the
provider thereof.



     Notwithstanding the foregoing, if either (1) an interruption or curtailment of any Basic
Service to be provided by Landlord occurs by reason of Landlord’s negligence, omission or breach of
its obligations hereunder or if Landlord materially interferes with Tenant’s use of or access to
the Premises in exercising



J-19









 




Landlord’s rights under Section 1.2 above, or (2) an interruption or curtailment of
any Basic Service to be provided by Landlord occurs and rental abatement insurance or service
interruption insurance proceeds are available and, in either such event: (A) the interruption or
interference causes the Premises or a portion thereof to be untenantable, (B) Tenant ceases to use
the Premises or the affected portion thereof, and (C) Tenant has given Landlord written notice of
such interruption or interference, then, on the fifth (5th) consecutive Business Day following the
date on which all of the foregoing conditions are satisfied (or such earlier date, if any, on which
Landlord is entitled to receive rental abatement or service interruption insurance proceeds), Base
Rent shall abate (in whole or in part based on the number of square feet that are affected) until
the Premises (or the affected portion thereof) are rendered usable by Tenant for Tenant’s Permitted
Use; provided, however, that in no event shall Tenant be entitled to an abatement
of Base Rent if the interruption was caused by: (y) any action or inaction by Tenant or its
employees, agents, contractors, or invitees, except to the extent Landlord receives rental
abatement insurance proceeds with respect thereto, or (z) causes not within Landlord’s direct
control, except to the extent Landlord receives rental abatement or service interruption insurance
proceeds with respect thereto.




     5.4 Extra Services. Landlord may provide to Tenant at Tenant’s request and in Landlord’s
discretion and at Tenant’s cost and expense (and subject to the limitations hereinafter set forth)
the additional services described below (“Extra Services”). Tenant shall pay Landlord for the
actual cost (including any applicable capital costs necessary to provide such services, reasonable
out-of-pocket expenses and the allocated cost of Landlord’s employees) of providing any Extra
Services, together with an administrative fee of ten percent (10%) of such cost, unless otherwise
specified below, but with no additional mark-up (“Actual Cost”) within thirty (30) days following
presentation of an invoice therefor by Landlord to Tenant. The cost chargeable to Tenant for Extra
Services shall constitute additional Rent. Notwithstanding anything to the contrary provided
herein, Landlord shall provide the Extra Services described in clauses (b) and (c) below upon
request from Tenant.



          (a) Any extra cleaning and janitorial services in excess of that required for Building
Standard Improvements. Notwithstanding the foregoing, extra cleaning and janitorial services shall
be classified as an Extra Service without a Tenant request if either (i) at the time Landlord
reviews and approves any plans that Tenant submits for approval for Tenant Improvements or
Alterations, Landlord identifies certain items that will require above-standard cleaning or
janitorial service, or (ii) the need for such extra cleaning or janitorial services results from
Tenant’s use of the Premises (such as but not limited to clean up after special events).



          (b) Construction, installation, or maintenance of equipment to provide additional air
conditioning and ventilating capacity required by reason of any electrical, data processing or
other equipment or facilities or services installed by or on behalf of Tenant required to support
the same, in excess of that which would be required for Building Standard Improvements.



          (c) HVAC or extra electrical equipment or service during hours other than Normal Office Hours,
provided that Landlord shall only charge Tenant for additional HVAC use at a rate not to exceed
Landlord’s full and complete cost (including accelerated depreciation of equipment) of after-hours
HVAC and condenser water usage (including commercially reasonable allocations for the use of
Building management and engineer), but without the administrative fee. Landlord shall provide said
heating, ventilation and air conditioning or extra service solely upon the prior request of Tenant
which may be provided by telephone or through computer-based notification. After-hours services
shall be provided on a floor-by-floor basis for an hourly charge with a minimum requirement of one
(1) hour. Landlord shall make good-faith efforts to provide after-hours HVAC service at the lowest
reasonable cost, including using only fans and outside fresh air for maintaining temperature and
spreading costs between tenants when appropriate. Notwithstanding the foregoing, Landlord may
separately meter and bill to Tenant any costs (such as after hours HVAC service) on any other areas
where above standard power shall be used. Tenant shall pay for the cost of such meters.



J-20









 





          (d) Repair and maintenance for which Tenant is responsible hereunder, if Tenant is in default
or requests Landlord to complete such work.



          (e) Any Basic Service in amounts reasonably determined by Landlord to exceed the amounts
required to be provided under Section 5.1, but only if Landlord elects to provide such
additional or excess service.



          (f) Any services in connection with Tenant’s construction of the Tenant Improvements except to
the extent Landlord has agreed to provide such services under Exhibit C excluding items
covered by the terms of Paragraph 2 of Exhibit C.



          (g) Any other item described in this Lease as an Extra Service or which Landlord is not
required to provide as part of Basic Services.



     5.5 Window Coverings. Building Standard window coverings shall be provided by Landlord as
Base Building Improvements as specified in Schedule C-1. Tenant shall not remove, replace
or install any window coverings, blinds or drapes on any exterior window without Landlord’s prior
written approval. Tenant acknowledges that breach of this covenant shall directly and adversely
affect the exterior appearance of the Building and the operation of the heating, ventilation and
air conditioning systems.



     5.6 Graphics and Signage. In addition to Tenant’s signage rights under Section 5.9
below, Landlord shall provide the initial identification of Tenant’s name on the directory board
and/or electronic directory, if any, in the main lobby of the Building and at the entrance to each
suite within the Premises that is located on a floor partially leased by Tenant. Subject to
Landlord’s prior written approval of the signage and method of installation, which shall not be
unreasonably withheld, Tenant shall be permitted at Tenant’s sole cost and expense to install
signage in the elevator lobby on each whole floor that Tenant leases. All signs (including those
in the elevator lobbies on floors within the Premises), notices and graphics of every kind or
character, visible in or from public corridors, the Common Areas or the exterior of the Premises
shall comply with the Design Manual and any deviation shall be subject to Landlord’s prior written
approval.



     5.7 Tenant Extra Improvements. In instances in which this Lease refers to Building Standard
Improvements or Tenant Extra Improvements (as such terms are defined in Exhibit C) as the
standard for the provision of services, maintenance, repair or replacement by either party, such
reference shall refer to the difference in required services, maintenance, repair or replacement
between the Tenant Extra Improvements as constructed in the Premises and Building Standard
Improvements, had Building Standard Improvements been constructed in the Premises. Landlord shall
not seek the benefits of depreciation deductions or income tax credit allowances for federal income
tax reporting purposes with respect to any Tenant Extra Improvements for which Tenant has fully
reimbursed Landlord.



     5.8 Peaceful Enjoyment. Tenant shall peacefully have, hold and enjoy the Premises, subject to
the other terms hereof, provided that no Event of Default then exists hereunder. This covenant and
the other covenants of Landlord contained in this Lease shall be binding upon Landlord and its
successors only with respect to breaches occurring during its and their respective ownerships of
Landlord’s interest hereunder.



     5.9 Corporate Authority. If Landlord is a corporation or limited liability company or
partnership or if Landlord is a partnership on whose behalf a partner which is a corporation or
limited liability company executes this Lease, then in any such case, each individual executing
this Lease on behalf of such corporation, limited liability company, or partnership represents and
warrants that he or she is duly authorized to execute and deliver this Lease on behalf of said
corporation, limited liability company and/or partnership, as the case may be.



J-21









 





     5.10 Building Naming and Signage Rights. So long as Tenant satisfies the Minimum Leasing
Requirement (as defined below) and no Event of Default is outstanding under this Lease, Tenant
shall have (a) the right to require the Building to be named “Expedia Tower” (or such other similar
project name incorporating “Expedia” as Landlord and Tenant may mutually select (the “Building
Name”), such as Expedia Plaza or Expedia Center), and (b) the rights to signage described in this
Section 5.9. As used herein, the term “Minimum Leasing Requirement” shall mean that Tenant
is leasing, occupying and paying rent on at least fifty percent (50%) of the total Net Rentable
Area in each elevator bank in the Building (the low rise elevator bank consists of floors 3 through
11 and the high rise elevator bank consists of floors 12 through 20) and no more than fifty percent
(50%) of the Premises has been subleased. Tenant shall have the right, at Tenant’s sole cost and
expense, to have Landlord include Tenant’s name on the exterior monument sign at the main entrance
to the Building and Tenant’s sign shall not be smaller or lower on the sign than any other tenant
leasing fewer square feet in the Building. In addition, if such sign is permitted by and complies
with all applicable Laws, Tenant shall have the right, at Tenant’s sole cost and expense, to place
exclusive and prominent signage identifying Tenant on top of the Building. Except as expressly
provided herein, Tenant is not granted exclusive sign rights and Landlord shall retain the right to
include the names of other tenants: (i) on the Building directory board, (ii) on the exterior
monument sign, (iii) on any “eyebrow” or “blade” or “canopy” signage allowed by the City of
Bellevue and lobby signage for the Building’s retail tenants in the Building (including banking or
brokerage tenants) and any tenants located on the lobby levels of the Building, and (iv) temporary
signage not permanently affixed to the Building, provided, however, that Landlord
will not permit any signage, other than Tenant’s signage, to be placed directly above the main
Building entrance (but not including entrances directly into the retail tenant areas or into the
lower lobby level retail area) without the prior written approval of Tenant. Except as provided
above, Landlord will not install or permit any tenant in the Building to install signage in the
Common Areas on the lobby levels of the Building or in the elevators identifying any Building
tenant. So long as Tenant satisfies the Minimum Leasing Requirement, Landlord shall not install or
permit installation of any advertisements on the windows of the Building without Tenant’s consent.
Tenant shall be responsible for all costs to design, permit, construct, install, maintain and
remove Tenant’s signage although a portion of the Cash Allowance may be applied to such costs if
any portion thereof is available after completion of the Tenant Improvements. Tenant must submit
plans for any signage permitted under this Section to Landlord for review and approval (such
approval not to be unreasonably withheld, conditioned or delayed provided that the design of all
signage is consistent with the architectural and institutional quality of the Building) before
Tenant shall be permitted to install such signage. The rights granted herein are personal to the
Tenant named herein and any Qualified Transferee who takes an assignment of all of Tenant’s rights
under this Lease.



     By the end of the Lease Term or on thirty (30) days notice if Tenant fails to satisfy the
conditions under the first sentence of this Section 5.9, Tenant at Tenant’s sole cost and
expense shall: (A) remove any signage installed by Tenant, (B) restore the Building substantially
to its condition prior to installation of such signage, and (C) in the case where Tenant either
requests that “Expedia” be removed from the Building’s name or Landlord terminates Tenant’s naming
right by reason of Tenant’s failure to satisfy the requirements under the first sentence of this
Section 5.9, then Tenant shall reimburse Landlord for all reasonable out-of-pocket expenses
and costs incurred by Landlord in connection with a change in the Building name. Except as
provided in Section 5.6, all signage for Tenant shall be provided at Tenant’s sole cost and
expense and shall be subject to all City of Bellevue and other applicable governmental
requirements.



     Any change in the Building Name or the signage described above requested by Tenant shall be at
Tenant’s expense and shall be subject to Landlord’s prior written approval, which approval may be
withheld in Landlord’s reasonable discretion; provided, however, Landlord shall not
unreasonably withhold its approval unless, in Landlord’s judgment, the proposed new name would:
(1) adversely affect Landlord’s ability to lease the vacant space in the Building to third parties;
(2) be inconsistent with a first class downtown Bellevue office tower; (3) be offensive; or (4)
violate the provisions of any other tenant



J-22









 




lease in the Building. If the Building Name is changed during the Term of this Lease,
Landlord shall not be required to change any materials identifying the Building (such as uniforms
or stationery) unless Tenant agrees to pay the cost of such changes. If the parties cannot agree
on a Building Name, or if Tenant does not exercise its naming rights hereunder, the Building shall
be called “Tower 333.” Landlord and Tenant will work together cooperatively to develop a logo
incorporating the Building Name at Tenant’s sole cost and expense.




ARTICLE 6

Tenant’s Covenants




     6.1 Compliance With Exhibit C. Tenant shall comply with the terms, conditions and
deadlines set forth in Exhibit C and the Tenant Design Manual, which is incorporated herein
by this reference (“Design Manual”) with respect to the construction of the Tenant Improvements in
the Premises. Notwithstanding anything to the contrary herein, in the event of any conflict
between the express terms of this Lease and the Design Manual, the terms of this Lease shall
control.



     6.2 Construction of Tenant Improvements. Tenant shall be solely responsible for the design,
permitting and construction of all Tenant Improvements pursuant to Exhibit C and the Design
Manual. All Building Standard Improvements (as defined in Exhibit C), shall be and become
the property of Landlord upon installation and all Tenant Extra Improvements shall become
Landlord’s property upon expiration or early termination of this Lease and shall be surrendered to
Landlord upon termination of this Lease by lapse of time or otherwise, except as otherwise stated
herein; provided, however, that this Section shall not apply to, and Tenant may
remove at any time and from time to time during the Term and at its expiration or earlier
termination, all equipment (other than supplemental HVAC equipment), machinery, furniture,
furnishings and other personal property now or hereafter installed or placed in or on the Premises
by and at the expense of Tenant that can be removed without material damage to the Premises or the
Building (including without limitation all equipment, machinery, furniture, furnishings and
demountable partitions which are bolted or similarly minimally attached to the wall or floor, but
only if Tenant repairs such wall or floor to good condition as if the same had not been bolted or
similarly attached). Although Tenant Improvements become the property of Landlord as provided
above, they are intended to be for the convenience of Tenant and are not intended to be a
substitute for Rent or any part thereof.



     6.3 Telecommunications. Tenant shall install and maintain all required intrabuilding network
cable and other communications wires and cables necessary to serve the Premises from the point of
presence in the Building and, subject to Landlord’s approval of the actual plans, may run wires,
cable and conduit from the point of presence in the Building to the Premises provided that Tenant
may not use more than its Proportionate Share of the sleeves available to tenants of the Building
for such wires, cables and conduit and shall vacate a proportionate share of the sleeves if the
size of the Premises is reduced to less than eighty percent (80%) of the office space in the
Building and each time it is reduced in size thereafter. Tenant shall be solely responsible for
the installation, repair, maintenance, replacement and removal of its telecommunications wires,
cable and conduit and all such work shall be subject to Landlord’s applicable rules and
regulations. Tenant shall obtain telecommunications services within the Building from vendors
approved by Landlord in its reasonable discretion (a “Provider”). If Tenant desires to obtain
telecommunications services from a Provider not selected by Landlord then Tenant shall submit to
Landlord a list of such proposed vendor(s) together with such other information regarding the
vendors as Landlord may request, including financial information, references from at least two (2)
owners of comparable projects in which the vendor has experience and a description of the vendor’s
business activities in downtown Bellevue. Landlord shall notify Tenant within fifteen (15)
Business Days of receipt of the list (and any additional information reasonably requested by
Landlord) if Landlord approves any of Tenant’s proposed vendors. Failure to notify Tenant shall be
deemed disapproval. If Landlord approves a Provider selected by Tenant, the Provider must agree in
writing to abide by all of Landlord’s policies and procedures for telecommunications vendors and to
pay for the use of any space outside the



J-23









 




Premises in which the Provider’s equipment is installed at the rate established by Landlord
from time to time, such rate to be at or below the rate then being offered to other new service
providers in the Building; provided, however, that the Provider shall not be
required to pay for temporary space used only during the period of installation. The Provider
shall also reimburse Landlord for any costs incurred by Landlord to build out such space. If
Tenant desires to utilize the services of a Provider not selected by Landlord, such Provider must
obtain the written consent of Landlord to the plans and specifications for its lines or equipment
within the Building prior to installation in the Building and must install such lines and equipment
in locations designated by Landlord. Tenant or the Provider shall obtain any necessary
governmental permits relating to the installation, use or operation of Provider’s lines and
equipment. Landlord shall provide Tenant and its Provider and contractors with reasonable access
to portions of the Building outside the Premises to the extent necessary to install, maintain or
replace any telecommunications equipment serving the Premises. Landlord’s consent to a Provider
shall not be deemed to constitute a representation or warranty as to the suitability, capability or
financial strength of any Provider. To the extent the service by a Provider is interrupted,
curtailed or discontinued for any reason whatsoever, Landlord shall have no obligation or liability
in connection therewith, except to the extent caused by Landlord’s gross negligence or intentional
misconduct. The provisions of this Section are solely for the benefit of Tenant and Landlord, are
not for the benefit of any third party, and no telephone or telecommunications provider shall be
deemed a third party beneficiary hereof. Tenant acknowledges and agrees that Landlord has not
represented or warranted that Tenant will have unlimited access to riser space or other space
outside the Premises for the purpose of the installing telecommunications equipment and Landlord
shall have no obligation to construct or designate additional riser space or equipment space to
accommodate the Tenant’s or its Provider’s telecommunications equipment. Tenant acknowledges that
riser space is a finite commodity and that Landlord may in its discretion limit Tenant’s total use
of such space under this or any other provision of this Lease to accommodate and take into account
use of the Building systems and the needs of Landlord and other Building tenants; provided,
however, in no event shall such space available to Tenant be less than Tenant’s
Proportionate Share of the total riser space except that at least one sleeve in each riser shall be
available for other tenants.




     6.4 Taxes on Personal Property and Tenant Extra Improvements. In addition to, and wholly
apart from its obligation to pay Tenant’s Proportionate Share of Operating Costs, Tenant shall be
responsible for, and shall pay prior to delinquency, all taxes or governmental service fees,
possessory interest taxes, fees or charges in lieu of any such taxes, capital levies, or other
charges imposed upon, levied with respect to or assessed against Tenant’s furniture, equipment,
machinery, trade-fixtures, personal property, goods or supplies (“Tenant’s Personal Property”), on
the value of its Tenant Extra Improvements, on its interest pursuant to this Lease or on any use
made of the Premises or the Common Areas by Tenant in accordance with this Lease. To the extent
that any such taxes are not separately assessed or billed to Tenant, Tenant shall pay the amount
thereof as invoiced to Tenant by Landlord.



     6.5 Repairs by Tenant. Tenant shall maintain and repair the Premises and keep the same in good
condition. Tenant’s obligation shall include, without limitation, the obligation to maintain and
repair all walls, floors, ceilings and fixtures and, subject to Section 11.6 below, to
repair all damage caused by Tenant or Tenant’s employees, agents, contractors, officers, directors,
partners, members, licensees, subtenants, assignees, invitees and guests (“Tenant Parties”) to the
Premises or the Building, whatever the scope of the work of maintenance or repair required. Tenant
shall repair all damage caused by removal of Tenant’s movable equipment or furniture or the removal
of any Tenant Extra Improvements or Alterations (as defined in Section 6.7) permitted or
required by Landlord, all as provided in Section 6.13. Any repair or maintenance that
Tenant is required to perform under this Lease shall be performed at Tenant’s expense by
contractors selected by Tenant and approved by Landlord following the same procedure and notice
requirements applicable to Landlord’s approval of Alterations under Section 6.7 below. If
Tenant fails or refuses to commence and complete the performance of such work within a commercially
reasonable period following notice from Landlord of the need for such work,



J-24









 




then Landlord may perform such work for the account of Tenant and the actual cost of such work
will be reimbursed by Tenant (to the extent such work is not performed by individuals whose
salaries are included in Operating Costs) as an Extra Service. Any work of repair and maintenance
performed by or for the account of Tenant by persons other than Landlord shall be performed at
Tenant’s risk using contractors approved by Landlord prior to commencement of the work and in
accordance with procedures Landlord shall from time to time establish. All such work shall be
performed in compliance with all applicable Laws and the Rules and Regulations and Tenant shall
provide to Landlord copies of all permits and records of inspection issued or obtained by Tenant in
connection therewith to establish such compliance. Tenant shall not be required to perform any
maintenance or repair required solely by reason of the negligence or wrongful acts of Landlord or
its employees, agents, contractors, officers, directors, partners, licensees, invitees and guests,
Landlord’s affiliates or Landlord’s members (“Landlord Parties”). Promptly after learning thereof,
Tenant shall notify Landlord of any needed repairs in the Premises or to the Building Components
located in the Premises.




     6.6 Waste. Tenant shall not commit or allow Tenant Parties to commit any waste or damage in
any portion of the Premises or the Building.



     6.7 Alterations, Additions, Improvements. Tenant shall not make or allow to be made any
alterations, additions or improvements in or to the Premises (collectively, “Alterations”) without
obtaining the prior written consent of Landlord. Landlord’s consent shall not be unreasonably
withheld with respect to proposed Alterations unless the Alterations: (a) adversely affect the
structural portions of the Building; (b) adversely affect any mechanical, electrical, HVAC or life
safety systems; (c) do not comply with all applicable Laws or the Rules and Regulations; (d) affect
the exterior appearance of the Building; (e) unreasonably interfere with the normal and customary
business operations of any other tenant; or (f) adversely affect the value or institutional nature
and quality of the Building. If any Alterations, whether alone or taken together with other
improvements, require the construction of any other improvements or alterations within the Building
Landlord may condition its consent on Tenant’s agreement to pay for such improvements or
alterations. Landlord’s consent shall not be required for any Alteration that satisfies
clauses (a) through (f) above and is of a cosmetic nature such as painting,
wallpapering, hanging pictures and installing carpeting, and costs less than $175,000 for any one
project or related series of projects (a “Cosmetic Alteration”). Tenant shall provide Landlord
with notice in advance of making any Alterations, describing the work to be performed. In
determining whether to consent to the proposed Alterations for which consent is required, Landlord
shall have the right to review and approve plans and specifications for the proposed Alterations,
construction means and methods, the identity of any contractor or subcontractor to be employed on
the work for Alterations, and the time for performance of such work. Tenant shall supply to
Landlord any documents and information reasonably requested by Landlord in connection with any
Alterations to the Premises. Landlord may hire outside consultants to review such documents and
information if Landlord reasonably believes such consultants’ review to be necessary and Tenant
shall reimburse Landlord for the Actual Cost thereof as an Extra Service under Section 5.4.
Landlord agrees to respond to any request by Tenant for approval of Alterations within ten (10)
Business Days after delivery of Tenant’s written request, subject to extension for such additional
reasonable time needed for review by Landlord’s consultants, if applicable, provided that Landlord
notifies Tenant within such initial ten (10) Business Day period of the necessity for such
extension. If Landlord disapproves of any proposed Alterations, Tenant may revise Tenant’s plans
and resubmit such plans to Landlord; in such event, the scope of Landlord’s review of such plans
shall be limited to Tenant’s changes. Landlord’s review and approval of such revised plans shall
be governed by the provisions set forth above in this Section 6.7). The procedure set out
above for approval of Tenant’s plans will also apply to any change, addition or amendment to
Tenant’s plans. All Alterations permitted hereunder shall be made and performed by Tenant without
cost or expense to Landlord. At Tenant’s request, Landlord may supervise and administer the
installation of Alterations as an Extra Service, but unless so requested by Tenant, Landlord will
not have any obligation to supervise such work or any right to charge any construction
administration or supervision fee in connection with Tenant’s performance of



J-25









 




Alterations. Upon completion of any Alterations which required the issuance of a building
permit or otherwise are of a scope or nature for which “as built” plans are typically prepared,
Tenant shall provide Landlord, at Tenant’s expense, with a complete hard copy set of “as built”
plans and specifications reflecting the actual conditions of the Alterations as constructed in the
Premises, together with a copy of such plans in the AutoCAD format or such other format as may then
be in common use for computer assisted design purposes. The obligations of the parties with
respect to removal of Alterations shall be controlled by Section 6.13.




     6.8 Liens. Tenant shall keep the Premises and the Building free from any liens arising out of
any (a) work performed or material furnished to or for the Premises, and (b) obligations incurred
by or for Tenant or any person claiming through or under Tenant. Tenant shall, within ten (10)
Business Days following notice to Tenant of the imposition of any such lien, cause such lien to be
released of record by payment or posting of a bond fully satisfactory to Landlord in form and
substance (in Landlord’s reasonable discretion) and in compliance with RCW 60.04, and in any event
Tenant shall obtain the release of any such lien prior to foreclosure thereof. Landlord shall have
the right at all times to post and keep posted on the Premises any notices permitted or required by
law, or that Landlord shall reasonably deem proper for the protection of Landlord, the Premises,
the Building and any other party having an interest therein, from mechanics’, materialmen’s and
other liens. If Tenant fails to timely comply with this Section 6.8, Landlord may cause
such liens to be released by any means it deems proper, including, without limitation, payment of
any such lien, at Tenant’s sole cost and expense. All costs and expenses incurred by Landlord in
causing such liens to be released shall be repaid by Tenant to Landlord immediately following
demand therefore accompanied by reasonably detailed backup documentation, together with an
administrative fee equal to the greater of (y) ten percent (10%) of such costs and expenses, or (z)
Two Hundred Fifty Dollars ($250.00). In addition to all other requirements contained in this
Lease, Tenant shall give Landlord at least five (5) Business Days prior written notice before
commencement of any construction on the Premises.



     6.9 Compliance With Laws and Insurance Standards.



          (a) Subject to Landlord’s obligations with respect to the delivery of the Base Building and as
set forth in Section 6.9(c) below, Tenant shall comply with all federal, state and local
laws, ordinances, codes, orders, rules, regulations and policies (collectively, “Laws”), now or
hereafter in force, as amended from time to time, in any way related to the use, condition or
occupancy of the Premises regardless of when such Laws become effective, including, without
limitation, all applicable Hazardous Materials Laws (as defined in Section 7.2(a)), the
Americans with Disabilities Act of 1990, as amended and any laws prohibiting discrimination
against, or segregation of, any person or group of persons on account of race, color creed,
religion, sex, marital status, national origin or ancestry to the extent that such Law relates to
Tenant’s particular manner of use of the Premises. Additionally, Tenant shall not be obligated to
comply with any present or future Law (or modification thereto) requiring any modifications of or
repairs to the Base Building unless the application of such Law arises from: (i) Tenant’s
particular manner of use of the Premises, (ii) any cause or condition created by or on behalf of
Tenant or any Tenant Party (including any Alterations), (iii) the breach of any of Tenant’s
obligations under this Lease, or (iv) any Hazardous Materials having been brought into the Building
by any Tenant Party. Tenant shall also comply with the terms of any transportation management
program or similar programs affecting the Building and required by any governmental authority.
Tenant shall immediately deliver to Landlord a copy of any notices received by Tenant from any
governmental agency in connection with the Premises. It is the intention of Tenant and Landlord
that the obligations of Tenant under this Section 6.9 shall apply irrespective of the scope
of work required to achieve such compliance. Tenant shall not use or occupy the Premises in any
manner that creates, requires or causes imposition of any requirement by any governmental authority
for structural or other upgrading of or improvement to the Building. Tenant, at its expense, after
notice to Landlord, may contest by appropriate proceedings prosecuted diligently and in good faith,
the validity or applicability to the Premises of any Law with



J-26









 




which Tenant is responsible for compliance hereunder, provided that (a) the condition which is
the subject of such contest does not pose a danger to persons or property, (b) neither the Building
or any part thereof is subject to being condemned or vacated by reason of non-compliance or
otherwise by reason of such contest, (c) the Certificate of Occupancy for the Premises or the
Building is neither subject to being suspended nor threatened to be suspended by reason of
non-compliance or otherwise by reason of such contest, (d) such non-compliance or contest does not
constitute or result in any violation Senior Instrument (or if any Senior Party permits such
non-compliance or contest only if Landlord takes some specified action or furnishes security, such
action is taken and/or such security is furnished at the expense of Tenant), neither Landlord or a
Landlord Party is subject to criminal penalty or to prosecution for a crime by reason of Tenant’s
non-compliance or otherwise by reason of such contest. Tenant shall keep Landlord advised as to
the status of any such proceedings and Tenant shall indemnify Landlord against liability in
connection with such contest or non-compliance.




          (b) Tenant shall not occupy or use, or permit any portion of the Premises to be occupied or
used, for any business or purpose that is unlawful, disreputable or constitutes a fire hazard.
Tenant shall not permit anything to be done that would increase the rate of fire or other insurance
coverage on the Building and/or its contents. If Tenant does or permits anything to be done that
increases the cost of any insurance policy carried by Landlord, then Tenant, at Landlord’s option,
shall not be in default under this Lease, but shall reimburse Landlord, upon demand, for any such
additional premiums as an Extra Service.



          (c) Landlord shall comply with all Laws (inclusive of the Americans with Disabilities Act)
relating to the Project, Base Building, elevator lobbies and restrooms, provided that compliance
with such Laws is not the responsibility of Tenant under this Lease or of other tenants under the
provisions of their respective leases. Landlord shall be permitted to include in Operating Costs
any costs or expenses incurred by Landlord under this Section 6.9(c) to the extent
permitted under Article 4 of this Lease. Landlord shall have the right to contest any
alleged violation of any Law in good faith, including, without limitation, the right to apply for
and obtain a waiver or deferment of compliance, the right to assert any and all defenses allowed by
Law and the right to appeal any decisions, judgments or rulings to the fullest extent permitted by
Law. Landlord, after the exhaustion of any and all rights to appeal or contest, will make all
repairs, additions, alterations or improvements necessary to comply with the terms of any final
order or judgment.



     6.10 Entry for Repairs, Inspection, Posting Notices, Etc. After reasonable (i.e., at least
one (1) Business Day advance) notice delivered to the Premises (which may be e-mail notice), except
in emergencies where no such notice shall be required, Landlord or Landlord Parties shall have the
right to enter the Premises to inspect the same, to clean, to perform such work as may be permitted
or required hereunder, to make repairs to or necessary alterations of the Building or other tenant
spaces therein, to deal with emergencies, to post such notices as may be permitted or required by
law to prevent the perfection of liens against Landlord’s interest in the Building or to exhibit
the Premises to prospective purchasers, encumbrancers or others or, during the final twelve (12)
months of the Term to prospective tenants; provided, however, that Landlord shall make reasonable
efforts not to unreasonably interfere with Tenant’s business operations. Except as expressly
provided in this Lease, in no event shall Tenant be entitled to any abatement of Rent by reason of
the exercise of any such right of entry. Any such entry or work described above shall be performed
in a manner so as to minimize disruption to Tenant’s use of and access to the Premises (which
obligation shall except in an emergency include the necessity of performing such work after normal
business hours if the performance of such work would otherwise be materially disruptive to Tenant’s
business operations). Tenant may condition any entry by Landlord (except in the case of emergency)
upon Landlord’s being accompanied by a representative of Tenant during any such entry; in
connection therewith, Tenant agrees to use reasonable efforts to cooperate with Landlord in
scheduling any such entry and making a representative of Tenant available at times reasonably
requested by Landlord. Notwithstanding anything to the contrary in this Section 6.10,
Tenant may designate certain




J-27









 




limited areas of the Premises as “Secured Areas” should Tenant require such areas for the
purpose of securing certain valuable property or confidential information. In connection with the
foregoing, Landlord shall not enter such Secured Areas except in the event of an emergency or when
accompanied by Tenant’s representative. Landlord need not clean any area designated by Tenant as a
Secured Area and shall only maintain or repair such Secured Areas to the extent such repair or
maintenance is: (i) required in order to maintain and repair the Building structural elements or
systems; (ii) as required by applicable Law, or (iii) in response to specific requests by Tenant
and in accordance with a schedule reasonably designated by Tenant, subject to Landlord’s reasonable
approval. Tenant shall notify Landlord in writing each time a Secured Area is designated, changed
or eliminated hereunder, including a floor plan showing the location thereof.




     6.11 No Nuisance. Tenant shall not create any nuisance, or interfere with, annoy, endanger or
disturb any other tenant or Landlord in its operation of the Building. Tenant shall not place any
loads upon the floor, walls or ceiling of the Premises that endanger the structure nor place any
harmful liquids or Hazardous Material (as defined in Section 7.2) in the drainage system of
the Building. Tenant shall not permit any vibration, noise or odor to escape from the Premises and
shall not do or permit anything to be done within the Premises which would adversely affect the
quality of the air in the Building.



     6.12 Rules and Regulations. Tenant shall comply with the rules and regulations for the
Building attached as Exhibit D and such amendments or supplements thereto as Landlord may
reasonably adopt from time to time with prior notice to Tenant (the “Rules and Regulations”).
Landlord shall not be liable to Tenant for or in connection with the failure of any other tenant of
the Building to comply with any rules and regulations applicable to such other tenant under its
lease. If there is a conflict between this Lease and any rules and regulations enacted after the
date of this Lease, the terms of this Lease shall control. The rules and regulations shall be
generally applicable, and generally applied in the same manner, to all tenants of the Building who
are similarly situated.



     6.13 Surrender of Premises on Termination. On expiration of the Term, Tenant shall quit and
surrender the Premises to Landlord, broom clean, in good order, condition and repair as required by
this Lease, with all of Tenant’s movable equipment, furniture, trade fixtures and other personal
property removed therefrom. In addition, Tenant shall remove all telecommunications and computer
networking wiring and cabling serving the Premises from the Building, unless Landlord requires such
materials to be surrendered to Landlord. All Alterations and Tenant Improvements shall be
surrendered with the Premises in good condition and repair, reasonable wear and tear (but only to
an extent consistent with the Premises remaining in good condition and repair) and casualty damage
not required to be repaired by Tenant excepted, unless (a) Tenant has obtained Landlord’s agreement
in writing that it can remove an Alteration or item of Tenant Improvements, or (b) Landlord has
notified Tenant that Tenant must remove an Alteration or item of Tenant Extra Improvements. If
Landlord’s approval is sought for an Alteration or Tenant Extra Improvement, Landlord shall notify
Tenant at the time it approves the Alteration or Tenant Extra Improvement which elements thereof
may be subject to removal under this Section (the “Removable Improvements”). Removable
Improvements shall not include any Building Standard Improvements or the conference rooms,
reception area, lunchroom and office improvements on the transfer floor between the low- and
high-rise elevator banks provided such improvements are consistent with the standards set forth in
the Design Manual and are of the same or comparable quality as in the Design Manual. Removable
Improvements shall include any non-standard items such as internal stairs, raised floors,
cafeterias, and above-standard business server and technology rooms. Tenant’s request for consent
shall conspicuously state that it is requesting Landlord’s determination as to whether any elements
thereof will be considered Removable Improvements. Landlord shall give written notice (the “Final
Removal Notice”) to Tenant at least ten (10) months prior to the Expiration Date as to which, if
any, Removable Improvements or other Alterations for which Landlord’s consent was not requested
Landlord will require Tenant to remove on termination of the Lease. If Landlord does not give
notice under the preceding sentence then Tenant shall not be required to remove any Removable
Improvements.



J-28









 




Subject to the provisions of Section 11.6 below, Tenant shall repair at its sole cost
and expense, all damage caused to the Premises or the Building by installation or removal of
Tenant’s movable equipment or furniture and such Tenant Improvements and Alterations as Tenant
shall be allowed or required to remove from the Premises by the provisions of this Lease.




     If Tenant elects to install Removable Improvements, then at the earlier of (a) the date that
is thirty (30) days following a date on which Tenant’s credit rating falls below investment grade
(BBB– or better as rated by Standard & Poor’s or any other credit rating agency of comparable
reputation), or (b) the date that is twelve (12) months prior to the Expiration Date, Tenant shall
deliver to Landlord an irrevocable, fully assignable, automatically renewing letter of credit in
form and substance acceptable to Landlord, callable upon demand by Landlord without prior notice to
Tenant, issued by a bank acceptable to Landlord in its reasonable discretion, for an amount equal
to the Landlord’s reasonable estimation of the cost (as of the end of the Initial Term) to repair
and restore the Removable Improvements. If Landlord later determines that the estimate is too high
(for example because Landlord ceases to require removal of some or all the Removable Improvements)
then Tenant shall be permitted to amend the letter of credit to reduce the value thereof to the
revised estimate of the cost of removal and restoration. If the Premises are not surrendered as of
the end of the Term in the manner and condition herein specified, Tenant shall indemnify, defend,
protect and hold Landlord and Landlord Parties harmless from and against any and all damages
resulting from or caused by Tenant’s delay or failure in so surrendering the Premises, including,
without limitation, any claims made by any succeeding tenant due to such delay or failure and
Landlord may draw on the letter of credit for any costs or damages incurred by Landlord as a result
of Tenant’s failure to comply with its obligations under this Section. Tenant acknowledges that
Landlord shall be attempting to lease the Premises with any such lease to be effective upon
expiration of the Term, and failure to surrender the Premises could cause Landlord to incur
liability to such successor tenant for which Tenant shall be responsible. Any property of Tenant
not removed from the Premises shall be deemed, at Landlord’s option, to be abandoned by Tenant and
Landlord may store such property in Tenant’s name at Tenant’s expense, and/or dispose of the same
in any manner permitted by law.



     6.14 Corporate Authority. If Tenant is a corporation or limited liability company or
partnership or if Tenant is a partnership on whose behalf a partner which is a corporation or
limited liability company executes this Lease, then in any such case, each individual executing
this Lease on behalf of such corporation, limited liability company, or partnership represents and
warrants that he or she is duly authorized to execute and deliver this Lease on behalf of said
corporation, limited liability company and/or partnership, as the case may be.



     6.15 Utilities. Tenant shall not obtain any electrical or other utility services from vendors
other than those selected by Landlord or approved by Landlord in writing.



ARTICLE 7

Hazardous Materials




7.1 Prohibition and Indemnity With Respect to Hazardous Materials.




          (a) Landlord has provided Tenant with copies of all environmental reports, assessments and
studies pertaining to the land upon which the Building is located (“Land”) in Landlord’s possession
which are identified on Exhibit J attached hereto (the “Environmental Reports”) Landlord
hereby agrees to indemnify, defend, protect and hold harmless Tenant from and against any and all
loss, cost, damage, or liability, including, without limitation, any claims, fines, penalties,
charges, administrative and judicial proceedings and orders, judgments, remedial action
requirements and enforcement actions of any kind, and all costs and expenses incurred in connection
therewith), arising out of on account of any violation of any Hazardous Materials Laws by Landlord
or any Landlord Party. The foregoing indemnity shall not apply to any cost and expenses associated
with any Hazardous Materials placed in, on, about or under the Land and/or Building by Tenant or
any Tenant Party.




J-29









 








          (b) Except as stated below, Tenant shall not cause or permit any Hazardous Material to be
brought upon, kept or used in or about the Premises by Tenant or Tenant Parties without the prior
written consent of Landlord. Tenant may, at Tenant’s risk, bring, store and use reasonable
quantities of Permitted Hazardous Materials in the Premises for their intended use. If Tenant
violates this provision, or if contamination of the Premises or the Real Property by Hazardous
Material occurs for which Tenant or any Tenant Party is responsible, or if Tenant’s activities or
those of Tenant Parties result in or cause a Hazardous Materials Claim, then Tenant shall
indemnify, defend, protect and hold Landlord and Landlord Parties harmless from and against any and
all claims, judgments, damages, penalties, fines, costs, expenses, liabilities or losses
(including, without limitation, diminution in value of the Premises or the Building or the Real
Property, damages for the loss or restriction on use of rentable or usable space or of any amenity
of the Premises or the Building, damages arising from any adverse impact on marketing of space, and
sums paid in settlement of claims, attorneys’ fees, consultants’ fees and experts’ fees)
(collectively, “Claims”) which arise during or after the Term as a result of any violation of any
Environmental Law by Tenant or any Tenant Party. This indemnification of Landlord by Tenant
includes, without limitation, costs incurred in connection with any investigation of site
conditions or any cleanup, remedial, removal or restoration work required by any federal, state or
local government agency or political subdivision because of any Hazardous Material present in the
soil or ground water on or under the Premises arising out of or by reason of the activities or
business of Tenant, Tenant Parties or any party claiming by or through Tenant and its employees,
agents, contractors, officers, directors, partners, licensees, invitees (other than Landlord or
Landlord’s contractors) and guests The foregoing indemnity shall survive the expiration or earlier
termination of this Lease.




     7.2 Definitions. The following terms shall have the meanings given below for purposes of this
Lease.



          (a) “Hazardous Material” shall mean any (a) oil, flammable substances, explosives, radioactive
materials, hazardous wastes or substances, toxic wastes or substances or any other wastes,
materials or pollutants which (i) pose a hazard to the Building or to persons in or about the
Building or (ii) cause the Building to be in violation of any Hazardous Materials Laws; (b)
asbestos in any form, urea formaldehyde foam insulation, transformers or other equipment that
contain dielectric fluid containing levels of polychlorinated biphenyls, or radon gas; (c)
chemical, material or substance defined as or included in the definition of “hazardous substances,”
“extremely hazardous substances,” “dangerous wastes,” “hazardous wastes,” “hazardous materials,”
“extremely hazardous waste,” “restricted hazardous waste,” “moderate risk waste,” or “toxic
substances” or words of similar import under any applicable local, state or federal law or under
the regulations adopted or publications promulgated pursuant thereto, including, but not limited
to, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended,
42 U.S.C. § 9601, et seq.; the Hazardous Materials Transportation Act, as amended, 49 U.S.C. §
1801, et seq.; the Federal Water Pollution Control Act, as amended, 33 U.S.C. § 1251, et seq.; and
the Model Toxics Control Act, as amended, RCW 70.105D; (d) chemicals, materials or substances,
exposure to which is prohibited, limited or regulated by any governmental authority or may or could
pose a hazard to the health and safety of the occupants of the Building or the owners and/or
occupants of property adjacent to or surrounding the Building, or any other person coming upon the
Building or adjacent property; and (e) other chemicals, materials or substances which may or could
pose a hazard to the environment.




          (b) “Hazardous Materials Claims” shall mean any liability, enforcement, investigation,
cleanup, removal, remedial or other governmental or regulatory actions, agreements or orders
instituted pursuant to any Hazardous Materials Laws; and any claims made by any third party against
Landlord, Tenant or the Building relating to damage, contribution, cost recovery compensation,
cleanup liability, natural resource damages, loss or injury resulting from the presence, release,
threatened release or discharge of any Hazardous Materials. Tenant shall promptly cure and satisfy
all Hazardous Materials Claims arising out of or by reason of the activities or business of Tenant,
Tenant Parties or any

J-30









 








party claiming by or through Tenant and its employees, agents, contractors, officers,
directors, partners, licensees, invitees and guests.




          (c) “Hazardous Materials Laws” shall mean any federal, state or local laws, ordinances,
orders, rules, regulations or policies, now or hereafter in force, as amended from time to time, in
any way relating to the environment, health and safety, and Hazardous Materials (including, without
limitation, the use, handling, transportation, production, disposal, discharge or storage thereof)
or to industrial hygiene or the environmental conditions on, under or about the Building and Real
Property, including, without limitation, soil, groundwater and indoor and ambient air conditioning.




          (d) “Permitted Hazardous Materials” shall mean Hazardous Materials which are (i) contained in
ordinary office supplies of a type and in quantities typically used in the ordinary course of
business within executive offices of similar size and location, or (ii) used in connection with the
Generator, but only if and to the extent that such supplies are transported, stored and used in
full compliance with all Hazardous Materials Laws and their packaging instructions and otherwise in
a safe and prudent manner. Hazardous Materials which are contained in ordinary office supplies or
which are used in connection with the Generator but which are transported, stored and used in a
manner which is not in full compliance with all Hazardous Material Laws and, with respect to office
supplies, their packaging instructions, or which is not in any respect safe and prudent shall not
be deemed to be Permitted Hazardous Materials for the purposes of this Lease.




ARTICLE 8

Assignment or Sublease.




     8.1 Consent Required. Tenant shall not assign this Lease in whole or in part, sublease all or
any part of the Premises or otherwise sell, transfer or hypothecate this Lease or grant any right
to use or occupy the Premises to another party (all of such events shall be referred to herein as a
“Transfer” and any such assignee, purchaser, subtenant or other transferee shall be a “Transferee”
for purposes of this Article) without Landlord’s prior written consent which shall not be
unreasonably withheld, delayed or conditioned for any sublease of all or any portion of the
Premises or any assignment of all of Tenant’s interest in this Lease, subject to the terms of this
Article. Tenant shall notify Landlord in writing at least thirty (30) days before Tenant begins to
market any portion of the Premises for a Transfer. This Lease may not be transferred by operation
of law. All of the following shall constitute Transfers subject to this Article 8: (x) if
Tenant is a corporation that is not publicly traded on a national exchange, then any transfer of
this Lease by merger, consolidation or liquidation, or any direct, indirect or cumulative change in
the ownership of, or power to vote the majority of Tenant’s outstanding voting stock, shall
constitute a Transfer; (y) if Tenant is a partnership, then a change in general partners in, or
voting or decision-making control of, the partnership shall constitute a Transfer; and (z) if
Tenant is a limited liability company, then a change in members in, or voting or decision-making
control of, the limited liability company shall constitute a Transfer. Any change in ownership of
Tenant’s parent of the type described in (x), (y) or (z) above shall also constitute a Transfer
subject to this Article 8. These provisions shall apply to any single transaction or any
series of related or unrelated transactions having the effect described.



     If Tenant intends to enter into a Transfer, Tenant shall give Landlord at least ten (10)
Business Days advance written notice of such intent. Tenant’s notice shall set forth the effective
date of such Transfer and shall be accompanied by an exact copy of the proposed agreements between
Tenant and the proposed Transferee and complete financial information regarding the proposed
Transferee. If requested by Landlord within five (5) calendar days following delivery of Tenant’s
notice requesting consent, Tenant shall provide Landlord with (a) any additional information or
documents reasonably requested by Landlord relating to the proposed Transfer or the Transferee, and
(b) an opportunity to meet and interview any proposed Transferee which proposes to occupy at least
one (1) full Floor in the Premises. Landlord shall have a period of ten (10) Business Days
following receipt of such additional information as Landlord requests or the date of the interview
(or twenty (20) days from the date of Tenant’s original



J-31









 







notice if Landlord does not request additional information or an interview) within which to
respond to Tenant’s request.



     8.2 Transfers to Qualified Transferees. Notwithstanding anything herein to the contrary, so
long as the transfer to a Qualified Transferee (defined below) is a good faith transaction not
being carried out in order to circumvent the other provisions of this Article 8, Landlord’s
consent shall not be required with respect to any proposed assignment or subletting by Tenant under
this Article 8 to any of the following (a “Qualified Transferee”): (a) any corporation or
other entity that controls, is controlled by or is under common control with Tenant; (b) any
corporation or other entity resulting from a merger, acquisition, consolidation or reorganization
of or with Tenant; (c) the purchaser of all or substantially all of the assets of Tenant provided
that (i) Tenant provides evidence to Landlord in writing that such assignment or sublease complies
with the criteria set forth in (a), (b) or (c) above, (ii) the Transferee expressly assumes
Tenant’s obligations and liabilities; and (iii) the credit of the Transferee and Tenant after the
transfer is equivalent to or better than that of Tenant at the time of the Transfer. “Control” for
purposes of this Article 8 shall mean ownership of a majority voting interest in any such
entity. In the event Tenant desires to effect any Transfer pursuant to this Section 8.2,
then, unless otherwise prohibited or restricted by applicable law, Tenant must provide Landlord
with at least ten (10) Business Days prior written notice of such proposed Transfer, together with
such evidence as Landlord may reasonably request to establish that the proposed Transferee is a
Qualified Transferee as defined herein. Tenant’s rights under this Section 8.2 are
personal to the Tenant named herein and any Qualified Transferee taking an assignment of all of
Tenant’s rights under this Lease.



     8.3 Landlord’s Options. If Tenant proposes a Transfer that is not permitted under Section
8.2, then: (a) if after giving effect to a proposed Transfer and all prior Transfers (other
than Transfers to Qualified Transferees) more than fifty percent (50%) of the Net Rentable Area of
the Premises would be the subject of Transfers, Landlord may elect to terminate this Lease as to
the space affected by the proposed Transfer as of the date specified by Tenant in its notice under
Section 8.1, in which event Tenant shall be relieved of all further obligations hereunder
as to such space; (b) Landlord may elect to permit Tenant to complete the Transfer on the terms set
forth in such notice, subject, however, to such reasonable conditions as Landlord may require and
to the balance of this Article 8; or (c) Landlord may elect to deny the request to Transfer
so long as Landlord’s denial is reasonable. If Landlord elects to terminate this Lease under
Section 8.3(a) above, Tenant may deliver written notice to Landlord within five (5)
Business Days following delivery of Landlord’s notice of termination, rescinding Tenant’s request
for consent to the Transfer, and if Tenant gives such notice Landlord’s exercise of the option to
terminate shall be null and void and this Lease shall continue in full force and effect. If
Landlord fails to deliver to Tenant notice of Landlord’s consent, or the withholding of consent, to
a proposed Transfer, Landlord shall be deemed to have waived the right to terminate under clause
(a) above and to have denied its consent to the proposed Transfer. In deciding whether to consent
to a proposed Transfer, Landlord may consider any factors that Landlord deems relevant, including
but not limited to the following: (i) whether the use of the Premises by the proposed Transferee
would be a Permitted Use; (ii) only with respect to any assignment of this Lease or any sublease
for all of the Premises for substantially all of the then-remaining Term, whether the proposed
Transferee is of sound financial condition and has sufficient financial resources and business
expertise, as determined by Landlord, to perform under this Lease (or the Sublease, as the case may
be); (iii) whether the proposed Transferee’s use involves the storage, use, treatment or disposal
of any Hazardous Materials; (iv) whether the proposed use or the proposed Transferee could cause
the violation of any covenant or agreement of Landlord to any third party or sublessee or permit
any other tenant to terminate its lease; and (v) whether the proposed Transferee is then
negotiating with Landlord or Landlord’s leasing agent regarding leasing any space in the Building.
Failure by Landlord to approve a proposed Transfer shall not cause a termination of this Lease, and
the sole remedy of Tenant shall be an action for injunctive or declaratory relief. If this Lease
shall be canceled by Landlord under clause (a) above with respect to less than the entire Premises,
Base Rent shall be prorated on the basis of the number of square feet of Net Rentable Area retained
by Tenant



J-32









 







and upon request of either party, the parties shall execute written confirmation of the
retained square footage and Tenant’s new Proportionate Share.



     8.4 Minimum Rental and Terms; Division of Excess Rent. Any rent or other consideration
realized by Tenant in connection with or as a result of any sublease (other than to a Qualified
Transferee) in excess of the Base Rent payable hereunder, after first deducting all reasonable and
customary costs actually incurred by Tenant to effect such sublease (such as tenant improvements,
brokerage fees, legal fees, advertising costs, rent or parking concessions and the like) (“Excess
Rent”) shall be divided equally between Landlord and Tenant and Landlord’s share shall be paid
promptly to Landlord as Rent hereunder; provided, however, that Landlord shall be
entitled to receive the total Excess Rent if Tenant is in default of any obligation under this
Lease until such default is cured.



     8.5 Tenant Not Released. No Transfer by Tenant shall relieve Tenant of any obligation under
this Lease unless otherwise agreed in a writing executed by Landlord. Any Transfer that conflicts
with the provisions hereof shall be void. No consent by Landlord to any Transfer shall constitute
a consent to any other Transfer nor shall it constitute a waiver of any of the provisions of this
Article 8 as they apply to any such future Transfers. Following any assignment of this
Lease by Tenant, Tenant and each subsequent transferor shall remain liable for any obligations
arising in connection with any amendments to this Lease executed by Landlord and the assignee
tenant, whether or not such amendments are made with knowledge or consent of the transferor.



     8.6 Written Agreement. Any Transfer must be in writing and the Transferee shall assume in
writing, for the express benefit of Landlord, all of the obligations of Tenant under this Lease
with respect to the space transferred (except, in the case of a sublease, for the obligation to pay
Base Rent), provided that no such assumption shall be deemed a novation or other release of the
transferor unless otherwise agreed in a writing executed by Landlord. Tenant shall provide to
Landlord true and correct copies of the executed Transfer documents and any amendment thereto
during the Term.



     8.7 No Transfer Period. Notwithstanding anything to the contrary in this Article 8,
except with respect to Transfers to Qualified Transferees pursuant to Section 8.2 above,
Tenant shall not enter into any Transfer of this Lease until the Term Commencement Date without
Landlord’s prior written approval which may be given or withheld in Landlord’s sole and absolute
discretion.



     8.8 Conditions. Landlord may condition its consent to any proposed Transfer other than to a
Qualified Transferee on such conditions as Landlord may reasonably require including, construction
of any improvements reasonably deemed necessary or appropriate by Landlord by reason of the
Transfer. Any improvements, additions, or alterations to the Building that are required by any
law, ordinance, rule or regulation, or are reasonably deemed necessary or appropriate by Landlord
as a result of any Transfer hereunder, shall be installed and provided by Tenant in accordance with
Section 6.7, without cost or expense to Landlord.



     8.9 Expenses. Landlord may hire outside consultants to review the Transfer documents and
information. Except for Transfers that do not require Landlord’s consent and for Transfers to
Qualified Transferees, Tenant shall reimburse Landlord for the actual costs and expenses incurred
by Landlord in connection with any request for consent under this Article 8 (even if
consent is denied or the request is withdrawn) and such reimbursement shall include all
out-of-pocket expenses paid to third parties, including reasonable attorneys’ fees, within thirty
(30) days following demand therefor.



     8.10 Restriction on Landlord. Provided that (a) no Event of Default has occurred hereunder
and is continuing, and (b) Tenant leases, occupies and pays Rent on at least Two Hundred Thousand
(200,000) square feet of Net Rentable Area under this Lease, during the period in which such
conditions are satisfied Landlord shall not enter into any lease of space within the Building with
a Competitor without Tenant’s prior written consent. As used herein and for purposes of this Lease
only, the term “Competitor” means American Express (only to the extent American Express occupies
space within the



J-33









 







Building for purposes directly related to travel), all Cendant Travelpoint companies,
Travelocity, Certified Vacations, Priceline.com, BookIt.com, Carlson Wagonlit Travel, HRG North
America, BCD Travel, TQ3 Navigant, Orbitz Worldwide, Inc., AAA Travel, Liberty Travel, Omega World
Travel, Travel Zoo, Farecast, Kayak, Sherman’s Travel, Farechase, Sidestep, STA Travel and National
Leisure Group (and all of each of their direct, wholly owned subsidiaries that are in direct
competition with Tenant’s travel business). Notwithstanding the foregoing, the restriction set
forth herein shall not apply to a particular Competitor if, at the time Landlord is considering
entering into a lease with such Competitor, Tenant (which as used herein shall include any
Qualified Transferee) has either assigned its interest under this Lease (in whole or in part) to a
Competitor, or Tenant is subleasing a portion of the Premises to such Competitor. Without
liability to Tenant, Landlord shall have the right, except as provided above, to offer and to lease
space in the Building, or in any other property, to any party, including without limitation parties
with whom Tenant is negotiating, or with whom Tenant desires to negotiate, a Transfer.



     8.11 No Leasehold Financing. Tenant shall not encumber, pledge or mortgage the whole or any
part of the Premises or this Lease, nor shall this Lease or any interest thereunder be assignable
or transferable by operation of law or by any process or proceeding of any court or otherwise
without the prior written consent of Landlord, which consent may be given or withheld in Landlord’s
sole discretion.



ARTICLE 9

Condition and Operation of the Building




     9.1 No Warranty. Landlord’s entire obligation with respect to the condition of the Premises,
its suitability for Tenant’s uses and the improvements to be installed therein shall be as stated
herein or in Exhibit C. Landlord shall have no other obligation of any kind or character,
express or implied, with respect to the condition of the Premises, or the suitability thereof for
Tenant’s purposes, and Tenant acknowledges that except as set forth in this Lease, it has neither
received nor relied upon any representation or warranty made by or on behalf of Landlord with
respect to such matters. Landlord represents that: (a) to its actual knowledge, the Base Building
shall comply with all applicable Laws, including without limitation, the Americans with
Disabilities Act, in effect at the time of issuance of the building permits for the Base Building;
and (b) upon the Term Commencement Date, the Base Building shall be in good working order and
condition (except for punch list items). Landlord shall use diligent and commercially reasonable
efforts to cause its contractors to repair any latent defects (including enforcement of warranties
and guaranties as necessary) provided such latent defects are identified by Tenant or otherwise
known to Landlord during the period ending one (1) year after completion of such work. Landlord’s
construction contract for the Base Building includes a limited warranty from the contractor as to
the quality and workmanship of the work and Landlord agrees to use diligent and commercially
reasonable efforts to enforce the terms of the warranty if and to the extent necessary. If any
defect in initial construction of the Building (which means any failure of the construction to
comply with the Base Building Plans) materially impacts Tenant’s use and occupancy of the Premises
and Tenant provides Landlord with written notice of such defect within ninety (90) days after
commencing construction of its Tenant Improvements then Landlord shall enforce the terms of the
construction contract and shall cause its contractor to correct the defect provided that Landlord
is not warranting that it will be successful in its efforts to enforce the contract.
Notwithstanding the foregoing, Landlord’s obligations under this Section 9.1 shall not
relieve Tenant of its obligation to verify existing conditions pursuant to Exhibit C.



     9.2 Building Alterations. Subject to the restrictions set forth in Section 1.1(a)
above regarding material modifications to the Building which shall also apply to this Section
9.2, Landlord may, in its sole discretion, at any time and from time to time: (a) make
alterations, structural modifications, seismic modifications or additions to the Building; (b)
change, add to, eliminate or reduce the extent, size, shape or configuration of any aspect of or
improvement (including the Building) located on the Real Property or its operations; (c) change the
arrangement, character, use or location of corridors, stairs, toilets, mechanical, plumbing,
electrical or other operating systems or any other parts of the Building;



J-34









 




(d) except as expressly provided herein, change the name, number or designation by which the
Building is commonly known; or (e) alter or relocate any portion of the Common Areas or any other
common facility. None of the foregoing acts shall be deemed an actual or constructive eviction of
Tenant, entitle Tenant to any reduction of Rent or result in any liability of Landlord to Tenant;
provided, however, that Landlord shall provide Tenant with reasonable prior notice
of any of the actions set forth in this Section 9.2, to be taken by Landlord if such action
will substantially interfere with Tenant’s ability to (i) conduct business in the Premises, (ii)
gain access to and from the Premises, the Garage or adjacent streets, or (iii) use the Garage.
Subject to Tenant’s signage rights as set forth herein, Landlord shall have the exclusive rights to
the airspace above and around, and the subsurface below, the Premises and the Building, including,
without limitation, the exclusive right to use all exterior walls, roofs and other portions of the
Building for signs, notices and other promotional purposes. Subject to the terms of this Lease,
Landlord shall have the sole and exclusive right to possession and control of the Common Areas and
all other areas of the Building and Real Property outside the Premises.




ARTICLE 10

Lender Rights




     10.1 Subordination. This Lease is subject and subordinate to each ground or land lease which
may now, or provided Tenant receives an SNDA (defined below), hereafter cover all or any portion of
the Building or Real Property and to each mortgage, deed of trust or other financing or security
agreement which may now or, provided Tenant receives an SNDA, hereafter encumber all or any portion
of the Building or Real Property and to all renewals, modifications, consolidations, replacements
and extensions thereof (collectively, the “Senior Instruments”), subject to the execution of an
SNDA as provided for below. Landlord shall obtain a non-disturbance agreement from the holder of
any Senior Instrument (the “Senior Parties”) now encumbering the Premises for the benefit of Tenant
in substantially the form attached hereto as Exhibit G or such other commercially
reasonable form of subordination, attornment and nondisturbance agreement reasonably acceptable to
Tenant as such Senior Party may request (an “SNDA”) within forty-five (45) days after the date of
this Lease. Tenant, upon Landlord’s or any Senior Party’s request, shall execute promptly any such
SNDA to confirm such subordination and shall deliver the same to the Senior Party within ten (10)
days following receipt thereof.



     10.2 Attornment. In the event of the enforcement by any Senior Party under any Senior
Instrument provided for by law or by such Senior Instrument, Tenant shall attorn to any person or
party succeeding to the interest of Landlord as a result of such enforcement including any
purchaser of all or any portion of the Building or the Real Property at a public or private
foreclosure sale or exercise of a power of sale under such mortgage or deed of trust (collectively,
“Successor”) and shall recognize such Successor as the Landlord under this Lease without change in
the terms or other provisions of this Lease except as provided in the applicable SNDA.
Notwithstanding the foregoing, a Senior Party may elect at any time to cause its interest in the
Building or the Real Property to be subordinate and junior to Tenant’s interest under this Lease by
filing an instrument in the real property records of King County, Washington, effecting such
election and providing Tenant with notice of such election. In no event shall any Senior Party or
any Successor have any liability or obligation whatsoever to Tenant or Tenant’s successors or
assigns for the return of all or any part of the Security Deposit unless, and then only to the
extent that, such Senior Party or Successor actually receives all or any part of the Security
Deposit.



     10.3 REAs. Tenant agrees that this Lease and the rights of Tenant hereunder are subject and
subordinate to any reciprocal access or easement agreements whether now or, in the future,
affecting the Building or Real Property (the “REAs”); provided, however, any future REAs shall not
adversely affect any rights granted to Tenant hereunder.



     10.4 Estoppel Certificate. Within ten (10) Business Days following a written request from
Landlord Tenant shall execute and deliver an estoppel certificate addressed to Landlord and/or to
any



J-35









 







Senior Party or prospective Senior Party or, any purchaser or prospective purchaser of all or
any portion of, or interest in, the Building or Real Property on a form supplied by Landlord or
such other addressee, certifying as to such facts (if true) as the addressee may reasonably require
including but not limited to the form attached hereto as Exhibit F modified to the extent,
if any, required to conform such certificate to the then state of facts. If Tenant fails or
refuses to deliver an estoppel certificate to Landlord in accordance with the preceding sentence,
or to provide written comments on any other form provided to Tenant within ten (10) Business Days
of a written request, then Tenant shall conclusively be deemed, without exception, to have
acknowledged the correctness of the statements set forth in the form of certificate provided and
shall be estopped from denying the correctness of each such statement, and the addressee thereof
may rely on the correctness of the statements in such form of certificate, as if made and certified
by such party.



ARTICLE 11

Insurance




     11.1 Landlord’s Property Insurance. Landlord shall maintain, or cause to be maintained, a
policy or policies of insurance with the premiums thereon fully paid in advance, issued by and
binding upon an insurance company or companies of good financial standing (which companies shall be
of generally comparable strength as the companies insuring Comparable Buildings), insuring the
Building against loss or damage by fire or other insurable hazards (including earthquake loss if
Landlord elects to maintain such coverage) and contingencies for the full replacement cost thereof,
exclusive of excavations and foundations below the lowest basement floor of the Building. Landlord
shall not be obligated to insure any of Tenant’s Personal Property, Tenant Extra Improvements or
Alterations. Landlord’s policy shall contain the following or comparable coverage: at least twelve
(12) months of “rental income loss” coverage payable in instances in which Tenant would be entitled
to Rent abatement hereunder if rent loss insurance proceeds are available, and shall include (i)
“extended coverage”, vandalism, water damage endorsement, and (ii) a “building laws” and/or “law
and ordinance” coverage endorsement that covers “costs of demolition,” “increased costs of
construction” due to changes in building codes and “contingent liability” with respect to undamaged
portions of the Building with each such endorsement to be of a kind required by Landlord to assist
Landlord in funding its obligations under this Lease to repair and restore the Building. If such
insurance is available on commercially reasonable terms and conditions (or if Tenant elects to pay
the entire premium for such coverage) Landlord shall carry a “service interruption” coverage for
loss of income as a result of damage to the physical property of a third party service provider.
The coverage and amounts of insurance carried by Landlord in connection with the Building at a
minimum shall be comparable to the coverage and amounts of insurance which are carried by
reasonably prudent landlords of Comparable Buildings. If the annual premiums paid by Landlord for
such property insurance exceed the standard premium rates because the nature of Tenant’s operations
result in extra-hazardous or higher than normal risk exposure, then Tenant shall, upon receipt of
appropriate premium invoices, reimburse Landlord for such increases in premium. All insurance
proceeds payable under Landlord’s insurance carried hereunder shall be payable solely to Landlord
and Tenant shall have no interest therein.



     11.2 Liability Insurance. Landlord shall maintain or cause to be maintained with respect to
the Building a policy or policies of commercial general liability insurance with the premiums
thereon fully paid in advance, issued by and binding upon an insurance company of good financial
standing, in amounts no less than as shall from time to time be carried by owners and operators of
Comparable Buildings, such insurance to afford minimum protection of not less than Five Million
Dollars ($5,000,000) per occurrence, combined single limit, for bodily injury, death and property
damage. The coverages required to be carried shall be extended to include, but not to be limited
to, blanket contractual liability, personal injury liability (libel, slander, false arrest and
wrongful eviction), and broad form property damage liability. Upon written request from Tenant no
more than one time per year, Landlord shall provide Tenant reasonable evidence that the insurance
required to be maintained hereunder by Landlord is in full force and effect.



J-36









 





     11.3 Tenant’s Insurance.



          (a) Property Insurance. Tenant shall provide “all risk” insurance coverage during the Term
insuring against loss or damage by fire and such other risks as are from time to time included in
an ISO Special Form (ISO CP 10 30 or equivalent) policy or any other comparable or better coverage
(including without limitation sprinkler leakage and water damage), insuring the full replacement
cost of any Tenant Extra Improvements and Alterations and Tenant’s Personal Property, as the same
may exist from time to time. Such policy shall contain replacement value, ordinance or law
coverage, and legal liability endorsements in a form reasonably satisfactory to Landlord and, in
making its reasonable determination, Landlord may consider the requirements of any mortgagee of
Landlord.




          (b) Liability Coverage. Tenant shall maintain or cause to be maintained a policy or policies
of commercial general liability and excess liability insurance with the premiums thereon fully paid
in advance, issued by and binding upon an insurance company of good financial standing, such
insurance to afford minimum protection of not less than Five Million Dollars ($5,000,000.00), per
occurrence, combined single limit, for personal injury, bodily injury (including death) and
property damage, or such higher amounts as Landlord may from time to time reasonably designate by
not less than thirty (30) days notice if such increased coverage is then being customarily required
by prudent landlords of Comparable Buildings; however, (i) Landlord will not have the right to
require any such increase during the initial twenty-four (24) months of the Term and (ii) Landlord
may not require any such increase more often than once in any twenty-four (24) month period. The
coverages required to be carried shall be extended to include, but not to be limited to, blanket
contractual liability, personal injury liability (libel, slander, false arrest and wrongful
eviction), and broad form property damage liability. Tenant’s contractual liability insurance
shall apply to Tenant’s indemnity obligations under this Lease and the certificate evidencing
Tenant’s insurance coverage shall state that the insurance includes the liability assumed by Tenant
under this Lease. Tenant’s policy shall be written on an occurrence basis and shall be primary
with any other insurance available to Landlord being excess.




          (c) Workers’ Compensation Insurance. Throughout the Lease Term, Tenant, at its own expense,
shall keep and maintain in full force and effect workers’ compensation insurance in an amount equal
to at least the minimum statutory amount then currently required in the State of Washington. In
addition, Tenant shall maintain Employer’s Liability Insurance with limits of at least One Million
Dollars ($1,000,000.00).




          (d) Auto Liability Insurance. If Tenant operates any automobile or other motor vehicle
servicing the Premises, Tenant shall maintain insurance covering liability arising out of the
operation of any automobile or other motor vehicle, including owned, hired and non-owned vehicles,
with a limit of not less than One Million Dollars ($1,000,000.00).




          (e) Other. Such other form or forms of insurance as are generally required by prudent owners
of or obtained by tenants of similar projects in the Bellevue, Washington vicinity, as Landlord or
any mortgagee of Landlord may reasonably require from time to time, against the same or other
insurable hazards which at the time are commonly insured against in the case of premises similarly
situated, due regard being given to the height and type of buildings thereon and their
construction, use and occupancy.




          (f) Policy Form. All policies required to be carried by Tenant, under this Article 11
shall be written with financially responsible companies with a Best & Company rating of “B+ IX” or
better, and shall designate Landlord, Landlord’s partners or members, Landlord’s property manager,
any Senior Party using the ISO CG 20 26 or its equivalent or such other form reasonably required by
Landlord from time to time, and each insurer shall agree not to cancel or materially alter the
policy without at least thirty (30) days prior written notice to Landlord and all named and
additional insureds. Any self-insurance provisions under any insurance policies maintained by
Tenant shall be subject to Landlord’s prior written approval.




J-37









 








          (g) Certificates. Prior to commencement of the Term, and thereafter during the Term, within
fifteen (15) days prior to the expiration date of any such coverage, Tenant shall deliver to
Landlord a certificate or certificates of the insurance required hereunder together with copies of
all endorsements required above. If Tenant fails to provide such proof of insurance and should
sure failure remain uncured for fifteen (15) Business Days following notice from Landlord to
Tenant, Landlord shall be authorized (but not required) to procure such coverage in the amounts
stated with all costs thereof to be charged to Tenant and paid within thirty (30) days following
written invoice therefor as an Extra Service.




     11.4 Indemnity and Exoneration.



          (a) Except as expressly otherwise provided in this Lease, Landlord shall not be liable to
Tenant for any loss, damage or injury to person or property caused by (i) theft, fire, vandalism,
assault, battery, act of God, acts of the public enemy, acts of terrorists or criminals, riot,
strike, insurrection, war, court order, requisition or order of governmental body or authority,
whether or not the negligence of Landlord was a partial cause of such loss, damage or injury, or
(ii) the active negligence or willful misconduct of Tenant or Tenant Parties, or (iii) repair or
alteration of any part of the Building or failure to make any such repair.




          (b) Tenant shall indemnify, defend, protect and hold Landlord and Landlord Parties harmless
from and against any and all Claims arising out of or related to claims of injury to or death of
persons, damage to property occurring or resulting directly or indirectly from the use or occupancy
of the Premises or activities of Tenant or Tenant Parties in or about the Premises, the Building or
the Real Property; provided, however, that the foregoing indemnity shall not be applicable to
claims arising in whole or in part by reason of the active negligence or willful misconduct of
Landlord or any Landlord Party, unless such claims are or should be covered by insurance required
to be carried by Tenant under the terms of this Lease, in which case such claims shall be subject
to the terms of this indemnity.




          (c) Landlord shall indemnify, defend, protect and hold Tenant and Tenant Parties harmless from
and against any and all claims, judgments, damages, penalties, fines, costs, expenses, liabilities
or losses to the extent arising out of the active negligence (including Landlord’s failure to
timely and properly perform Landlord’s maintenance and repair responsibilities set forth herein) or
willful misconduct of Landlord or any Landlord Party, unless such claims are or should be covered
by insurance required to be carried by Tenant under the terms of this Lease, in which case such
claims shall not be subject to the terms of this indemnity; provided, however, that the foregoing
indemnity shall not include claims to the extent arising by reason of the negligence or willful
misconduct of Tenant or Tenant Parties.




          (d) To the extent, but only to the extent, necessary to fully indemnify the parties from
claims made by the indemnifying party or its employees, the indemnities herein constitute a waiver
of the indemnifying party’s immunity under the Washington Industrial Insurance Act, RCW Title 51,
as between Landlord and Tenant only.




          (e) LANDLORD AND TENANT ACKNOWLEDGE BY THEIR INITIALS BELOW THAT EACH INDEMNIFICATION
PROVISION OF THIS LEASE (INCLUDING, BUT NOT LIMITED TO, THOSE RELATING TO WORKER’S COMPENSATION
BENEFITS AND LAWS) AND EACH WAIVER OF CLAIMS HEREIN WAS SPECIFICALLY NEGOTIATED AND AGREED TO BY
LANDLORD AND TENANT.




	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 	 	 	 	 
	 

	 	Tenant’s Initials
	 	 	 	Landlord’s Initials
	 	 






     11.5 Indemnity for Liens. Tenant shall indemnify, defend and protect Landlord and hold
and save Landlord harmless of and from any and all loss, claims, proceedings, cost, damage, injury,
causes of action, liabilities or expense arising out of or in any way related to work or labor
performed, materials or supplies furnished to or at the request of Tenant or in connection with
performance of any work done for the account of Tenant in the Premises or the Building.



J-38









 





     11.6 Waiver of Subrogation Rights. Anything in this Lease to the contrary notwithstanding,
Landlord and Tenant each waive all rights of recovery, claim, action or cause of action, against
the other, Tenant Parties or Landlord Parties, as applicable, for third party liability and any
loss or damage that may occur to the Premises, or any improvements thereto, or the Building or Real
Property or any personal property of such party therein, by reason of fire, the elements, or any
other cause to the extent that such rights of recovery, claim, action or cause of action is or
would be covered by insurance required to be obtained pursuant to this Lease, regardless of cause
or origin, including negligence of the other party, Landlord Parties or Tenant Parties, as
applicable, and each party covenants that no insurer shall hold any right of subrogation against
such other party. Each party shall advise its insurers of the foregoing and such waiver shall be a
part of each policy maintained by such party that applies to the Premises, any part of the Building
or Real Property or such party’s use and occupancy of any part thereof.



ARTICLE 12

Casualty and Eminent Domain




     12.1 Damage and Destruction. The following provision shall apply to any fire or other
casualty in the Premises or Building. In the event of any damage which affects the Premises or the
Building outside the boundaries of the Premises, Landlord within a reasonable period of time
following the date of the damage (which period shall generally be no more than sixty (60) days
following the date of the damage but may be longer if necessary due to the nature and extent of the
damage), shall deliver to Tenant an estimate of the time necessary to repair the damage in question
such that the Premises may be used by and accessible to Tenant and the Building and Common Areas
operable as a first-class office building; such notice will be based upon the review and opinions
of Landlord’s architect and contractor (“Repair Notice”).



          (a) If the damage is limited solely to the Premises and the Repair Notice indicates that
Premises can be repaired such that the same may be occupied by Tenant for Tenant’s business
purposes with all damage repaired within nine (9) months from the date of damage or destruction,
then Landlord shall diligently rebuild the same (including Tenant’s Alterations and Tenant’s Extra
Improvements which Landlord shall repair at Tenant’s cost); provided, however, that
Landlord shall not be obligated to expend for such repair an amount in excess of the insurance
proceeds recovered or recoverable (or which would be recovered if Landlord maintained the insurance
coverage required hereunder and diligently sought to recover the maximum possible proceeds) as a
result of such damage, plus any deductibles reimbursed in full as part of Operating Costs
plus sums paid to Landlord by Tenant under the following sentence. In any instance in
which Landlord restores the Premises under this Section 12.1, Tenant upon demand from
Landlord shall pay all costs associated with repair and rebuilding of the Tenant Extra Improvements
and Alterations and if Tenant fails to do so, Landlord’s obligation to restore such items shall be
excused.




          (b) If portions of the Building outside the boundaries of the Premises are damaged or
destroyed (whether or not the Premises are also damaged or destroyed) and (i) the Repair Notice
indicates that the Premises and the Building can both be repaired such that the same may be
occupied by Tenant for Tenant’s business purposes with all damage repaired within nine (9) months
from the date of damage or destruction, and (ii) Landlord determines that such reconstruction is
economically feasible, then Landlord shall diligently rebuild the same; provided,
however, that Landlord shall not be obligated to expend for such repair an amount in excess
of the insurance proceeds recovered (or which would be recovered if Landlord maintained the
insurance coverage required hereunder and diligently sought to recover the maximum possible
proceeds) as a result of such damage and any deductibles reimbursed in full as part of Operating
Costs plus sums advanced to Landlord by Tenant for repair of the Alterations and Tenant
Extra Improvements, and Landlord shall have no obligation to repair or restore Tenant’s Personal
Property.




          (c) If (i) the Premises should be damaged by any occurrence not covered by Landlord’s
insurance (or the insurance required to be maintained by Landlord hereunder), or (ii) the

J-39









 








Repair Notice indicates that Premises or the Building are damaged to the extent that the
damage cannot, be restored within nine (9) months from the date of damage, or (iii) the Building
should be damaged to the extent of more than fifty percent (50%) of the cost of replacement
thereof, notwithstanding that the Premises may be undamaged, or (iv) if the damage occurs during
the last year of the Term, Landlord may elect either to repair or rebuild the Premises or the
Building or to terminate this Lease upon giving notice in writing of such election to Tenant within
ninety (90) days after the happening of the event causing the damage; provided,
however, that if Tenant exercises any Extension Option then in effect, the exercise of such
termination option based upon clause (iv) above by Landlord shall be null and void. However, as a
condition to any such termination pursuant to clauses (i), (ii) or (iii), all other leases in the
Building covering premises which are similarly affected by such damage must be concurrently
terminated, it being the intent of the parties that Landlord not be able to use the provisions of
this Article 12 to terminate “below market” leases. If this Lease is not terminated
pursuant to this subsection 12.1(c), Landlord shall diligently rebuild the Building and
Premises, to the extent required herein.




          (d) During any period when the Premises or any material portion of the Premises is rendered
unusable or inaccessible because of any casualty, Rent shall abate proportionately until such time
as the Premises are made usable and accessible (excluding time to repair Alterations or Tenant
Extra Improvements) as reasonably determined by Landlord, and no portion of the Rent so abated
shall be subject to subsequent recapture provided, however, that there shall be no such abatement
except to the extent that the amount thereof is compensated for and recoverable from the proceeds
of rental income loss insurance maintained by Landlord. Tenant’s abatement period shall continue
until Landlord’s substantial completion of repairs to the Premises required to be completed by
Landlord hereunder other than: (i) any items that require extraordinary lead time for fabrication
or availability of materials; or (ii) other items that are not substantially completed but the
completion of which will not preclude Tenant’s occupancy and use of the Premises for any Permitted
Use (and with respect to such items, Landlord shall retain reasonable access to the Premises
following the abatement period in order to complete same).




          (e) The proceeds from any insurance paid by reason of damage to or destruction of the Building
or any part thereof, the Building Standard Improvements or any other element, component or property
insured by Landlord shall belong to and be paid to Landlord subject to the rights of any mortgagee
of Landlord’s interest in the Building or Real Property or the beneficiary of any deed of trust
that constitutes an encumbrance thereon. If this Lease is terminated by either party as a
consequence of a casualty in accordance with any of the provisions of this Section 12.1,
all proceeds of insurance required to be maintained either by Landlord or Tenant (to the extent
Tenant is required or elects to insure the Tenant Extra Improvements) shall be paid to Landlord
subject to the rights of any mortgagee of Landlord’s interest in the Building or Real Property or
the beneficiary of any deed of trust that constitutes an encumbrance thereon; provided, however,
that Tenant shall be paid all proceeds of insurance payable in connection with Tenant’s Personal
Property.




          (f) If the Premises or at least forty percent (40%) of the Net Rentable Area of the Premises
are damaged by fire or other casualty (not caused by Tenant or any Tenant Party) and are rendered
not reasonably usable for Tenant’s business purposes thereby, or if the Building shall be so
damaged by fire or other casualty (not caused by Tenant or any Tenant Party) that Tenant shall be
deprived of reasonable access to at least forty percent (40%) of the Net Rentable Area of the
Premises, and if, pursuant to Landlord’s Repair Notice, the restoration cannot be substantially
completed on or before the date which is nine (9) months following the date of Landlord’s Repair
Notice, then Tenant shall have the right to terminate this Lease by giving written notice (the
“Termination Notice”) to Landlord not later than thirty (30) days following receipt of Landlord’s
Repair Notice. If Landlord reasonably determines that adequate insurance proceeds will not be
available to restore the portions of the Premises that Landlord is responsible for repairing,
Landlord shall notify Tenant. Within thirty (30) days after receipt of such notice Tenant may
notify Landlord that it will terminate this Lease unless Landlord agrees to fund such excess costs
and complete the restoration. If Landlord does not elect to pay any

J-40









 








excess costs to complete restoration of the portions of the Premises that Landlord is
responsible for repairing within thirty (30) days after receipt of Tenant’s notice then Tenant may
send a Termination Notice as set forth above. If Tenant gives a Termination Notice, this Lease
shall be deemed cancelled and terminated (as if such date were the Expiration Date) as of either
(i) the date of the damage (if the Premises is rendered wholly unusable) or as of the date on
which Tenant vacates the Premises but in no event later than thirty (30) days after the Termination
Notice (if the Premises is rendered partially unusable), and Rent shall be apportioned and shall be
paid or refunded, as the case may be up to and including the date of such termination.
Notwithstanding the foregoing, if Tenant was entitled to but elected not to exercise its right to
terminate this Lease and Landlord has not exercised its right to terminate this Lease, Landlord
shall diligently rebuild and restore the Building and Premises to the extent required herein and if
Landlord does not substantially complete the repair and restoration of the Premises within three
(3) months after the estimated period of time set forth in Landlord’s Repair Notice (which period
shall be extended to the extent of any delays caused by Tenant or Force Majeure), then Tenant may
elect to terminate this Lease by written notice to Landlord within thirty (30) days after the
expiration of such period, as the same may be so extended and this Lease shall terminate thirty
(30) days after the date of Tenant’s notice unless Landlord completes the repair and restoration of
the Premises within such period. In addition, if the Premises, or any material part thereof, or
any portion of the Building necessary for Tenant’s use of the Premises, are damaged or destroyed
during the last twelve (12) months of the Term, or any extension thereof, and such damage cannot be
repaired within ninety (90) days from the date of casualty (as reasonably determined by Landlord
within thirty (30) days following the date of the casualty), then Landlord or Tenant may terminate
this Lease by giving written notice thereof to the other party within forty-five (45) days after
the date of the casualty, in which case this Lease shall terminate as of the later of the date of
the casualty or the date of Tenant’s vacation of the Premises.




          (g) If Landlord rebuilds the Premises under any provision of this Article 12, and
receives insurance proceeds or Tenant pays Landlord for the cost thereof under Section
12(a) above, Landlord shall repair and restore all Tenant Extra Improvements other than any
items that Tenant elects not to restore, such election to be made by written notice to Landlord
delivered no later than five (5) Business Days following Landlord’s delivery to Tenant of the
Repair Notice. If Tenant fails to timely deliver such notice, Tenant shall be deemed to have
elected to have all Tenant Extra Improvements fully repaired and restored.




     12.2 Condemnation.



          (a) If a portion of the Premises or any portion of the Building or Real Property shall be
taken or condemned for any public purpose and the remainder of the Premises is rendered either
inaccessible or unusable for Tenant’s business operations, this Lease shall, at the option of
either party, terminate as of the date of such taking. If this Lease is not terminated in its
entirety then it shall terminate only as to the portion of the Premises taken and Base Rent and
Tenant’s Proportionate Share shall be adjusted to reflect the new Net Rentable Area of the Premises
and/or the Building. If any portion of the Building or Real Property shall be taken or condemned
for any public purpose to such an extent as to render the Building not economically viable in
Landlord’s good faith discretion, then whether or not the Premises or any part thereof is taken or
conveyed, Landlord may by notice in writing to Tenant terminate this Lease, and the Base Rent and
other charges shall be paid or refunded as of the date of termination.




          (b) If during the Term of this Lease the entire Premises shall be taken by eminent domain or
destroyed by the action of any public or quasi-public authority or in the event of conveyance in
lieu thereof, this Lease shall terminate as of the day possession shall be taken by such authority,
and Tenant shall pay Rent up to that date with an appropriate refund by Landlord of such rent as
shall have been paid in advance for a period subsequent to the date of the taking of possession.




          (c) If a temporary taking of all or a portion of the Premises occurs, there shall be no
abatement of Rent and Tenant shall remain fully obligated for performance of all of the covenants
and

J-41









 







obligations on its part to be performed pursuant to the terms of this Lease. All proceeds
awarded or paid with respect thereto shall belong to Tenant.




          (d) All compensation awarded for any such taking or conveyance whether for the whole or a part
of the Premises shall be the property of Landlord, whether such damages shall be awarded as
compensation for diminution in the value of the leasehold or of the fee of or underlying leasehold
interest in the Premises, and Tenant waives all claims against Landlord and the condemning
authority for damages for termination of its leasehold interest or interference with its business
and hereby assigns to Landlord all of Tenant’s right, title and interest in and to any and all such
compensation; provided, however, that Tenant shall be entitled to claim, prove and
receive in the condemnation proceedings such separate award as may under the laws of the State of
Washington be expressly allocated to Tenant’s Personal Property or relocation expenses, provided
that such award shall be made by the court in addition to and shall not result in a reduction of
the award made to Landlord.




ARTICLE 13

Default




     13.1 Events of Default. The occurrence of any of the following shall constitute an event of
default (“Event of Default”) on the part of Tenant:



          (a) [Intentionally Omitted];




          (b) Nonpayment of Rent. Failure to pay any installment of Base Rent, Operating Costs or other
items of Rent, upon the date when payment is due, if such failure is not cured within five (5)
Business Days after written notice of such failure provided, however, that Landlord
shall not be required to give written notice of non-payment more than two (2) times in any twelve
(12) month period and the third (3rd) late payment in any twelve (12) month period shall be an
immediate Event of Default without notice;




          (c) Other Obligations. Failure to perform any obligation, agreement or covenant under this
Lease other than those matters specified in Sections 13.1(a), 13.1(b) and
13.1(i), such failure continuing for fifteen (15) Business Days after written notice of
such failure (or with respect to non-monetary obligations only, such longer period as is reasonably
necessary to remedy such default, provided that Tenant shall continuously and diligently pursue
such remedy at all times until such default is cured);




          (d) General Assignment. A general assignment for the benefit of creditors by Tenant;




          (e) Bankruptcy. The filing of any voluntary petition in bankruptcy by Tenant, or the filing
of an involuntary petition by Tenant’s creditors, which involuntary petition remains undischarged
for a period of thirty (30) days. If under applicable law the trustee in bankruptcy or Tenant has
the right to affirm this Lease and continue to perform the obligations of Tenant hereunder, such
trustee or Tenant shall, in such time period as may be permitted by the bankruptcy court having
jurisdiction, cure all defaults of Tenant hereunder outstanding as of the date of the affirmance of
this Lease and provide to Landlord such adequate assurances as may be necessary to ensure Landlord
of the continued performance of Tenant’s obligations under this Lease;




          (f) Receivership. The employment of a receiver to take possession of substantially all of
Tenant’s assets or the Premises, if such receivership remains undissolved for a period of ten (10)
Business Days after creation thereof;




          (g) Attachment. The attachment, execution or other judicial seizure of all or substantially
all of Tenant’s assets or the Premises, if such attachment or other seizure remains undismissed or
undischarged for a period of ten (10) Business Days after the levy thereof;




J-42









 








          (h) Insolvency. The admission by Tenant in writing of its inability to pay its debts as they
become due, the filing by Tenant of a petition seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under any present or future
statute, law or regulation, the filing by Tenant of an answer admitting or failing timely to
contest a material allegation of a petition filed against Tenant or Guarantor in any such
proceeding or, if within thirty (30) days after the commencement of any proceeding against Tenant
seeking any reorganization, or arrangement, composition, readjustment, liquidation, dissolution or
similar relief under any present or future statute, law or regulation, such proceeding shall not
have been dismissed; and




          (i) Failure to Deliver. Failure to deliver or comment on any subordination or attornment
agreement or estoppel certificate when and as required under Article 10 if such failure
continues for five (5) Business Days after notice from Landlord of Tenant’s failure to timely
comply with the provisions of Article 10.




     13.2 Remedies Upon Default.



          (a) Termination. If an Event of Default occurs, Landlord shall have the right, with or
without notice or demand, immediately (after expiration of the applicable grace periods specified
herein) to terminate this Lease, and at any time thereafter recover possession of the Premises or
any part thereof and expel and remove therefrom Tenant and any other person occupying the same, by
any lawful means, and again repossess and enjoy the Premises without prejudice to any of the
remedies that Landlord may have under this Lease, or at law or equity by reason of Tenant’s default
or of such termination.




          (b) Continuation After Default. Even though Tenant has breached this Lease and/or abandoned
the Premises, this Lease shall continue in effect for so long as Landlord does not terminate
Tenant’s right to possession under Section 13.2(a) hereof, and Landlord may enforce all of
its rights and remedies under this Lease, including (but without limitation) the right to recover
Rent as it becomes due. Acts of maintenance, preservation or efforts to lease the Premises or the
appointment of receiver upon application of Landlord to protect Landlord’s interest under this
Lease shall not constitute an election to terminate Tenant’s right to possession. If Landlord does
not terminate this Lease, then, regardless of whether Tenant shall have abandoned the Premises, and
without demand or notice, Landlord may re-enter and take possession of the Premises or any part
thereof, expel from the Premises Tenant and anyone claiming through or under Tenant, and remove the
personal property of either. Landlord may relet the Premises, or any part of them, in Landlord’s
or Tenant’s name for the account of Tenant, for such period of time and at such other terms and
conditions as Landlord, in its sole discretion, may determine. Landlord may collect and receive
the rents from the Premises. Re-entry or taking possession of the Premises by Landlord under this
Section shall not be construed as an election on Landlord’s part to terminate this Lease, unless a
written notice of termination is given to Tenant. Landlord reserves the right following any
re-entry or reletting, or both, under this Section to exercise its right to terminate the Lease.
During the Event of Default, Tenant will pay Landlord the Rent and other sums that would be payable
under this Lease if repossession had not occurred, less the net proceeds, if any, after reletting
the Premises, after deducting Landlord’s Reletting Expenses. Notwithstanding the above, if
Landlord relets the Premises for a term (the “Relet Term”) that extends past the Expiration Date of
this Lease (without consideration of any earlier termination pursuant to this Article 13),
the Reletting Expenses which may be included in Landlord’s damages under this Lease shall be
limited to a prorated portion of the Reletting Expenses, based on the percentage that the length of
the Term remaining on the date Landlord terminates this Lease or Tenant’s right to possession bears
to the length of the Relet Term. For example, if there are two (2) years left on the Term at the
time that Landlord terminates possession and, prior to the expiration of the two (2) year period,
Landlord enters into a lease with a Relet Term of ten (10) years with a new tenant, then only
twenty percent (20%) of the Reletting Expenses shall be included when determining Landlord’s
damages. “Reletting Expenses” is defined to include all expenses actually incurred by Landlord in
connection with reletting the Premises, including without limitation, all repossession costs, labor
costs, brokerage commissions, attorneys’ fees, remodeling and repair costs, costs for removing and

J-43









 







storing Tenant’s property and equipment and rent concessions granted by Landlord to any new
tenant, prorated over the life of the new lease.




          (c) Acceleration. Landlord shall also have the right to declare the entire balance of the
Rent for the remainder of the Term of this Lease to be due and payable immediately, and collect
such balance in any manner not inconsistent with applicable law, but subject to the provisions of
Section 13.3 below.




          (d) Cure. Landlord may cure such default or perform such obligation on Tenant’s behalf and at
Tenant’s expense as an Extra Service. Tenant shall reimburse Landlord pursuant to Section
5.4.




          (e) Waiver of Redemption Rights. Tenant, for itself, and on behalf of any and all persons
claiming through or under Tenant, including creditors of all kinds, hereby waives and surrenders
all rights and privileges that they may have under any present or future law, to redeem the
Premises or to have a continuance of this Lease for the Lease Term, as it may have been extended.




     13.3 Damages Upon Termination. Should Landlord terminate this Lease pursuant to the
provisions of Section 13.2(a) hereof, Landlord shall have all the rights and remedies of a
landlord under applicable law and Landlord shall be entitled to recover from Tenant: (a) the worth
at the time of award of the unpaid Rent and other amounts which had been earned at the time of
termination; (b) the worth at the time of award of the amount by which the unpaid Rent which would
have been earned after termination until the time of award exceeds the amount of such Rent loss
that Tenant proves could have been reasonably avoided; (c) the worth at the time of award of the
amount by which the unpaid Rent for the balance of the Term after the time of award exceeds the
amount of such Rent loss that the Tenant proves could be reasonably avoided; (d) all costs incurred
by Landlord in reletting the Premises, including without limitation, brokerage commissions,
attorneys’ fees, marketing and advertising expenses and expenses of cleaning, restoring or
remodeling the Premises; and (e) any other amount necessary to compensate Landlord for all the
detriment proximately caused by Tenant’s failure to perform its obligations under this Lease or
which, in the ordinary course of things, would be likely to result therefrom. The “worth at the
time of award” of the amounts referred to in (a) and (b) shall be computed with interest at fifteen
percent (15%) per annum or the highest lawful commercial interest rate, whichever is the lower.
The “worth at the time of award” of the amount referred to in (c) shall be computed by discounting
such amount at the “discount rate” of the Federal Reserve Bank of San Francisco in effect as of
time of award plus one percent (1%) and, where rental value is a material issue, shall be based
upon competent appraisal evidence.



     13.4 Computation of Rent for Purposes of Default. For purposes of computing unpaid Rent that
would have accrued and become payable under this Lease pursuant to the provisions of Section
13.3, unpaid Rent shall consist of the sum of:



          (a) the total Base Rent for the balance of the Term, plus




          (b) a computation of the Operating Costs for the balance of the Term, the assumed Operating
Costs for the calendar year of the default and each future calendar year in the Term to be equal to
the Operating Costs for the calendar year prior to the year in which default occurs compounded at a
per annum rate equal to the mean average rate of inflation for the preceding five (5) calendar
years as determined by reference to the Consumer Price Index – All Items for
Seattle-Tacoma-Bremerton, All Urban Consumers, published by the Bureau of Labor Statistics of the
United States Department of Labor (Base Year 1982-84=100), or such successor index as may be
established to provide a measure of the current purchasing power of the dollar (provided, however,
that if no successor index is published by the United States Department of Labor, Landlord may
select in its reasonable discretion a substitute index or method of measuring inflation (the “CPI
Index”); plus




J-44









 








          (c) the total payments for Parking Passes required to be purchased by Tenant pursuant to
Section 14.22 for the balance of the Term.




     13.5 Late Charge. Tenant acknowledges that late payment by Tenant of Rent will cause Landlord
to incur costs not contemplated by this Lease, the exact amount of such costs being extremely
difficult and impracticable to fix. Such costs include, without limitation, processing and
accounting charges, and late charges that may be imposed on Landlord by the terms of any note
secured by a Senior Instrument covering the Premises. Therefore, in addition to Landlord’s other
remedies, if any payment of Rent is not received by the fifth (5th) day after the due date thereof,
Tenant shall pay a late fee in an amount equal to four percent (4%) of the delinquency, the parties
agreeing that such sum represents a reasonable estimate of Landlord’s costs; however, on the first
(1st) occasion in any twelve (12) month period on which Rent is not timely paid, Tenant will be
entitled to a five (5) Business Day grace period following notice of non-payment prior to the
imposition of such late fee. In addition, any sums not paid by Tenant when due shall bear interest
from the due date until paid in full at an annual interest rate of fifteen percent (15%) or the
highest commercial interest rate permitted by Law, if less (the “Interest Rate”). The provision
for a late charge and interest and collection of such late charge or interest by Landlord, shall
not be deemed a waiver of any breach or Event of Default by Tenant under this Lease. If any of
Tenant’s Rent checks is returned by the bank without payment then Tenant shall pay a bounced check
charge of Seventy-five Dollars ($75.00) and Landlord may require Tenant to pay future installments
of Rent by certified or cashiers’ check.



     13.6 Remedies Cumulative. All of the remedies permitted or available to Landlord under this
Lease, or at law or in equity, shall be cumulative and not alternative and invocation of any such
right or remedy shall not constitute a waiver or election of remedies with respect to any other
permitted or available right or remedy.



     13.7 Tenant’s Remedies.



          (a) Landlord shall not be in default unless Landlord fails to cure a default by Landlord of
its obligations under this Lease within thirty (30) days after its receipt of notice thereof from
Tenant, or if such default is not capable of being cured within said thirty (30) day period,
Landlord has failed to commence such cure and diligently pursue such cure until completion. Tenant
shall not have any right to recover consequential damages from Landlord. Tenant shall not sue,
seek any remedy or enforce any right against Landlord (other than exercising Tenant’s rights under
Sections 5.3, 6.5(b), or 13.7(b) in accordance with the provisions thereof)
as a result of Landlord’s default until (i) Tenant gives written notice to all Senior Parties, and
(ii) if any Senior Party notifies Tenant within ten (10) Business Days following Tenant’s notice
(or such longer period as may be required under any SNDA) that such Senior Party intends to attempt
to cure Landlord’s default, a reasonable time for such Senior Party, to remedy the act or omission
has elapsed following the giving of notice by Tenant to Senior Party required hereunder, including,
without limitation, time to obtain possession from Landlord by power of sale or judicial
foreclosure, it being agreed that the Senior Party shall have no obligation to Tenant to cure or
remedy any act or omission of Landlord. Tenant shall look solely to Landlord’s interest in the
Building (which shall be deemed to include the proceeds of any sale or refinancing of all or any
portion of the Building or the Property by Landlord with respect to any obligation or liability
arising prior to such sale, as well as any insurance or condemnation proceeds), for recovery of any
judgment from Landlord whether from a breach hereof or from a right created by statute or at common
law. Landlord and Landlord Parties shall not be personally liable for any such judgment. Tenant
agrees that no other property or assets of Landlord or any partner or member of Landlord shall be
subject to levy, execution or other enforcement procedures for satisfaction of any such judgment or
decree; no partner or member of Landlord shall be sued or named as a party in any suit or action
(except as may be necessary to secure jurisdiction over Landlord); no service of process shall be
made against any partner or member of Landlord (except as may be necessary to secure jurisdiction
over Landlord); no judgment shall be taken against partner or member of Landlord; no writ of
execution shall ever be levied against the assets of any partner or member of Landlord; and
 

J-45









 








these covenants, limitations and agreements are enforceable both by Landlord and by any
partner or member of Landlord. Any lien obtained to enforce any such judgment and any levy of
execution thereon shall be subject and subordinate to any Senior Instrument. Sums due Tenant from
Landlord under this Lease and not paid when due shall bear interest at the rate of fifteen percent
(15%) per annum from the due date until paid, except where another rate of interest is expressly
provided in this Lease.




          (b) If (A) a default by Landlord occurs with respect to the provision of Basic Services to the
Premises, (B) Tenant has provided simultaneous written notice thereof to Landlord and any Senior
Party (of which Tenant has notice), and (C) Landlord or such Senior Party has failed to commence to
cure such default within the thirty (30) day period specified above, Tenant may deliver a second
notice to Landlord and the Senior Party stating that Tenant will commence a cure of such default
and describing the steps Tenant proposes to take to cure such default if Landlord or such Senior
Party has not commenced a cure within five (5) Business Days after receipt of such notice. Such
notice may not be combined with any other notices and shall clearly state that it is a “Notice of
Landlord Default and Tenant’s Intent to Exercise Self-Help Rights”. If neither Landlord nor the
Senior Party commences the cure within such five (5) Business Day period then Tenant shall be
permitted to undertake the cure described in such notice. Tenant’s right to cure Landlord defaults
shall be limited providing janitorial services and matters that can be accomplished through repairs
to the electrical, mechanical or telecommunications systems located primarily within or serving
only the Premises and any such cure shall be undertaken only by experienced, qualified contractors.
Landlord shall reimburse Tenant for the reasonable costs of such cure within thirty (30) days
after completion thereof and delivery to Landlord of invoices therefor, together with such back-up
information as Landlord shall reasonably request. If Landlord fails to make such reimbursement
when required, Tenant shall have the right to offset its actual costs incurred against Base Rent,
provided, however, that in no event may Tenant offset more than fifty percent (50%)
of Base Rent due in any month and provided, further, that if the Landlord disputes
Tenant’s right to offset, such dispute shall be resolved in accordance with the terms of the
following paragraph.




     If the parties cannot agree on the amount (if any) that Tenant is permitted to offset against
Base Rent, Tenant shall pay any undisputed sums due to Landlord and shall deposit the disputed
amount in a commercial escrow account with instructions that such amount shall not be disbursed to
either party absent mutual written instructions or a binding judgment or arbitration award. If
Landlord disputes Tenant’s right to an offset, it shall deliver an arbitration demand to Tenant.
Within ten (10) Business Days following delivery of an arbitration demand, the parties shall
mutually select one (1) arbitrator who is a natural person not employed by either of the parties or
any parent or affiliated partnership, corporation or other enterprise thereof, who shall be a
licensed lawyer with at least ten (10) years of experience in commercial leasing in Class A office
buildings in the Seattle/Bellevue vicinity. If the parties do not agree on an arbitrator, then
either party, on behalf of both, may request appointment of such a qualified person by the American
Arbitration Association in a written notice with a copy given to the other party. The arbitrator
so selected shall decide the dispute, if it has not previously been resolved, by following the
procedure set forth herein. The arbitration shall be conducted in the City of Seattle or the City
of Bellevue, Washington or other mutually acceptable location. The arbitrator shall hold a hearing
on the matter in dispute within fifteen (15) days after his or her appointment. The arbitration
shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration
Association. The arbitrator shall render his or her decision within fifteen (15) days after the
scheduled arbitration hearing. The arbitrator shall render its decision and award in writing and
shall deliver copies to each party. The arbitrator shall have the right to consult experts and
competent authorities with factual information or evidence pertaining to a matter at issue, but any
such consultation shall be made in the presence of both parties with full right on their part to
cross-examine. If the arbitrator believes that expert advice would materially assist in the
resolution of the question presented, the arbitrator may retain one (1) or more qualified persons
to provide such expert advice. The fees and expenses of any such qualified person or persons shall
be equally borne by Landlord and Tenant. The arbitrator shall have no power to



J-46









 







modify the provisions of this Lease but otherwise the decision of the arbitrator shall be
final, binding and conclusive upon the parties, and a judgment may be rendered thereon in any court
having jurisdiction over the Premises and the parties hereto. Landlord and Tenant shall each pay
one half (1/2) of the cost and expense of the American Arbitration Association and its arbitrator
for such arbitration. Each party shall pay the fees and costs of its own counsel provided that the
arbitrator shall have authority in its discretion to award to the prevailing party in the
arbitration its reasonable attorneys’ fees and all costs of arbitration including the fees of the
arbitrator. If any arbitrator fails, refuses or is unable to act, his or her successor shall be
appointed in the manner provided above.



ARTICLE 14

Miscellaneous




     14.1 No Waiver. Failure of Landlord or Tenant to declare any default immediately upon
occurrence thereof, or delay in taking any action in connection therewith, shall not waive such
default, but Landlord or Tenant, as the case may be, shall have the right to declare any such
default at any time thereafter. No waiver by a party of an event of default, or any agreement,
term, covenant or condition contained in this Lease, shall be effective or binding on such party
unless made in writing and no such waiver shall be implied from any omission by a party to take
action with respect to such event of default or other such matter. No express written waiver by a
party of any event of default, or other such matter, shall affect or cover any other event of
default, matter or period of time, other than the event of default, matter and/or period of time
specified in such express waiver. One or more written waivers by a party of any event of default,
or other matter, shall not be deemed to be a waiver of any subsequent event of default, or other
matter, in the performance of the same provision of this Lease. Acceptance of Rent by Landlord
hereunder, or endorsement of any check, shall not, in and of itself, constitute a waiver of any
breach or event of default or of any agreement, term, covenant or condition of this Lease, except
as to the payment of Rent so accepted, regardless of Landlord’s knowledge of any concurrent event
of default or matter. Landlord may, at its election, apply any Rent received from Tenant to the
oldest obligation outstanding from Tenant to Landlord, any endorsement or other statement of Tenant
to the contrary notwithstanding. No course of conduct between Landlord and Tenant, and no
acceptance of the keys to or possession of the Premises before the termination of the Term by
Landlord or any employee of Landlord shall constitute a waiver of any such breach or of any term,
covenant or condition of this Lease or operate as a surrender of this Lease.



     14.2 Holding Over. If Tenant (or anyone claiming under Tenant) remains in possession after
expiration or termination of this Lease without the written consent of Landlord, Tenant shall
comply with all terms and conditions of this Lease except that Tenant shall pay Base Rent for each
month or partial month of occupancy thereafter at a rate equal to one hundred fifty percent (150%)
of the Base Rent for the last month of the Term, together with such other amounts as may become due
hereunder. No occupancy or payment of Rent by Tenant after expiration of the Term shall operate to
renew or extend the Term. If Tenant remains in possession after the expiration or termination of
this Lease without Landlord’s consent, in addition to the payment described in the first sentence
of this Section 14.2, Tenant shall indemnify, defend, protect and hold Landlord and
Landlord Parties harmless from and against any and all Claims for damages by any other tenant or
third person to whom Landlord may have leased or offered to lease all or any part of the Premises
effective on or after the termination of this Lease, together with all loss, cost, expense, damages
and liabilities in connection with any such reletting, including, without limitation, attorneys’
fees and Landlord’s lost revenues. If Tenant holds over with the consent of Landlord in writing
Tenant shall thereafter occupy the Premises under this Lease on a month-to-month basis and Base
Rent shall be increased to the greater of (a) one hundred percent (100%) of the Rent for the last
month of the Term, or (b) the then current fair market rent for the Premises as determined by
Landlord in its reasonable discretion. For purposes of this Section 14.2, the term
“remains in possession” shall include circumstances where Tenant has failed to fully vacate the
Premises or failed to fully complete all removal and restoration work required under this Lease



J-47









 





     14.3 Attorneys’ Fees. If either party places the enforcement of this Lease, or any part
thereof, or the collection of any Rent due, or to become due hereunder, or recovery of the
possession of the Premises in the hands of an attorney or collection agency, or files suit upon the
same, or seeks a judicial declaration of rights hereunder, the prevailing party shall recover its
reasonable attorneys’ fees, court costs and collection agency charges. As used herein, “prevailing
party” shall mean the party who substantially prevails in the matter at issue, including without
limitation, a party who dismisses an action for recovery hereunder in exchange for payment of the
sums allegedly due, performance of covenants allegedly breached or consideration substantially
equal to the relief sought in the action.



     14.4 Amendments. This Lease may not be altered, changed or amended, except by an instrument
in writing signed by both parties.



     14.5 Transfers by Landlord. Landlord shall have the right to transfer and assign, in whole or
in part, all of its rights and obligations hereunder and in the Building and Real Property. If
Landlord sells or otherwise transfers the Building, or if Landlord assigns its interest in this
Lease, other than an assignment solely for security purposes, and provided that such purchaser,
transferee or assignee thereof shall assume Landlord’s obligations hereunder in writing to the
extent arising from and after the date of transfer, Landlord shall thereupon be relieved of all
liabilities hereunder arising thereafter, but this Lease shall otherwise remain in full force and
effect. Landlord or any person or party succeeding to possession of the Building as a successor to
Landlord shall be subject to Landlord’s obligations hereunder only during the period of such
person’s or party’s ownership.



     14.6 Severability. If any term or provision of this Lease, or the application thereof to any
person or circumstances, shall to any extent be invalid or unenforceable, the remainder of this
Lease, or the application of such provision to persons or circumstances other than those as to
which it is invalid or unenforceable, shall not be affected thereby, and each provision of this
Lease shall be valid and shall be enforceable to the extent permitted by law.



     14.7 Notices. All notices, demands, consents and approvals that may or are required to be
given by either party to the other hereunder shall be in writing, shall be sent via nationally
recognized overnight courier service or in the United States mail, certified or registered, postage
prepaid, and addressed to the party to be notified at the address for such party specified on the
Basic Lease Information Sheet, or to such other place as the party to be notified may from time to
time designate by at least fifteen (15) days notice to the notifying party. Additionally, as
specified herein, on certain events, Landlord may deliver notice to the Premises Notice Address as
long as copies of any such notice are also delivered to Tenant’s standard notice addresses. Notice
shall be deemed to have been given (i) if sent via overnight courier, on the Business Day next
succeeding the date upon which such notice is deposited with such overnight courier, (ii) if sent
via certified or registered mail, on the third (3rd) Business Day following mailing. Tenant shall
deliver a copy of any notice given to Landlord to (a) Landlord’s property manager, (b) any Senior
Party whose address is known to Tenant, and (c) 2800 Post Oak Boulevard, 50th floor, Houston, Texas
77056-6118, Attention: C. Hastings Johnson. Tenant appoints as its agent to receive service of
all default notices and notice of commencement of unlawful detainer proceedings the person in
charge of or apparently in charge of or occupying the Premises at the time, and, if there is no
such person, then such service may be made by attaching the same on the main entrance of the
Premises and Landlord shall also send a copy of such notice to the Tenant’s notice address by one
of the methods described above to the attention of the General Counsel and the Director of Real
Estate.



     14.8 No Option. Submission of this instrument for examination or signature by Tenant does not
constitute a reservation of or an option to lease, and it is not effective as a lease or otherwise
until execution and delivery by both Landlord and Tenant. Landlord shall not be deemed to have
made an offer to Tenant by furnishing Tenant with a copy of this Lease with particulars inserted.
No contractual or other rights shall exist or be created between Landlord and Tenant until all
parties hereto have executed this Lease



J-48









 







and until it has been approved in writing by any Senior Party and fully executed copies have
been delivered to Landlord and Tenant.



     14.9 Integration and Interpretation. The terms of this Lease are intended by the parties as a
final expression of their agreement with respect to such terms as are included in this Lease and
may not be contradicted by evidence of any prior or contemporaneous agreement, arrangement,
understanding or negotiation (whether oral or written). The parties further intend that this Lease
constitutes the complete and exclusive statement of its terms, and no extrinsic evidence whatsoever
may be introduced in any judicial proceeding involving this Lease. The language in all parts of
this Lease shall in all cases be construed as a whole and in accordance with its fair meaning and
not construed for or against any party, regardless of which party may have drafted the provision in
question, it being agreed that this is a negotiated agreement. The following exhibits and
schedules are attached hereto and incorporated by this reference as if fully set forth herein:



	 	 	 
	Exhibit A

	 	Floor Plans for the Premises, Outdoor Amenity Area and Generator
	 
	 	 
	Exhibit B

	 	Legal Description of the Real Property
	 
	 	 
	Exhibit C

	 	Initial Improvements of the Premises
	 
	 	 
	Schedule C-1

	 	Base Building Improvements
	 
	 	 
	Schedule C-2

	 	Definition of Building Standard Improvements
	 
	 	 
	Schedule C-3

	 	Typical Floor Plan for Building Standard Improvements
	 
	 	 
	Exhibit D

	 	Rules and Regulations
	 
	 	 
	Exhibit E

	 	Lease Commencement Certificate
	 
	 	 
	Exhibit F

	 	Form of Estoppel Certificate
	 
	 	 
	Exhibit G

	 	Form of SNDA
	 
	 	 
	Exhibit H

	 	Environmental Reports
	 
	 	 
	Exhibit I

	 	Memorandum of Lease
	 
	 	 
	Exhibit J

	 	Existing Leases and Assumed Obligations






     14.10 Quitclaim. Upon expiration or earlier termination of this Lease, Tenant shall,
immediately upon request of Landlord, execute, acknowledge and deliver to Landlord a recordable
deed quit-claiming to Landlord all interest of Tenant in the Premises, the Real Property, the
Building and this Lease.



     14.11 No Easement for Light, Air and View. This Lease conveys to Tenant no rights for any
light, air or view. No diminution of light, air or view, or any impairment of the visibility of
the Premises from inside or outside the Building, by any structure or other object that may
hereafter be erected (whether or not by Landlord) shall entitle Tenant to any reduction of Rent
under this Lease, constitute an actual or constructive eviction of Tenant, result in any liability
of Landlord to Tenant, or in any other way affect this Lease or Tenant’s obligations hereunder.



     14.12 No Merger. The voluntary or other surrender or termination of this Lease by Tenant, or
a mutual cancellation thereof shall not work a merger, but, at Landlord’s sole option, shall either
terminate all existing subleases or subtenancies or shall operate as an assignment to Landlord of
all such subleases or subtenancies.



     14.13 Memorandum of Lease. Upon request of either party, the parties shall execute and record
a memorandum hereof in the form of Exhibit I attached hereto; provided that simultaneously
with such execution, Tenant shall execute and deliver to Landlord a recordable termination of the
memorandum in a form reasonably acceptable to Landlord which Landlord may record at any time
following the Expiration Date or any earlier termination of this Lease.



     14.14 Survival. All of the parties’ covenants and obligations contained in this Lease
intended to survive termination or expiration of this Lease by their nature shall survive the
expiration or earlier termination of this Lease. No provision of this Lease providing for
termination in certain events shall be



J-49









 







construed as a limitation or restriction of a party’s rights and remedies at law or in equity
available upon a breach by the other party of this Lease.



     14.15 Financial Statements. If Landlord intends to sell all or any portion of the Building or
the Real Property (or any interest therein), or obtain a loan secured by the Building or the Real
Property (or any interest therein), and at such time Tenant is no longer a publicly traded company,
then Tenant shall, within thirty (30) days of Landlord’s written request, furnish Landlord with
financial statements, dated no earlier than one (1) year before such request, certified as accurate
by Tenant, or, if available, audited financial statements prepared by an independent certified
public accountant with copies of the auditor’s statement, reflecting Tenant’s then current
financial condition, or the financial condition of the individuals comprising Tenant, in such form
and detail as Landlord may reasonably request. To the extent such information is not otherwise
publicly available, Landlord shall make reasonable efforts to maintain the confidentiality of such
information provided, however, that Landlord may provide such information on a
confidential basis to any of its consultants, accountants, advisors, lawyers and any actual or
prospective lender, investor or purchaser. In addition, Landlord may disclose such information to
the extent required by law or in any administrative or judicial proceeding in which it is required
to divulge such information.



     14.16 No Joint Venture. This Lease shall not be construed to create a partnership, joint
venture or similar relationship or arrangement between Landlord and Tenant hereunder.



     14.17 Successors and Assigns. Except as otherwise provided herein, this Lease shall be
binding upon and inure to the benefit of Landlord, its successors and assigns; and shall be binding
upon and inure to the benefit of Tenant, its successors, and to the extent assignment may be
approved by Landlord hereunder, Tenant’s assigns.



     14.18 Applicable Law. All rights and remedies of Landlord and Tenant under this Lease shall
be construed and enforced according to the laws of the State of Washington. Any actions or
proceedings brought under this Lease, or with respect to any matter arising under or out of this
Lease, shall be brought and tried only in courts located in the County of King, Washington
(excepting appellate courts).



     14.19 Time of the Essence; Force Majeure. Time is of the essence of each and every covenant
herein contained. If either party to this Lease, as the result of any (i) strikes, lockouts, or
labor disputes; (ii) failure of power or other utilities not due to the negligence, misconduct
and/or omission of such party’s employees, agents, contractors or representatives; (iii) inability
to obtain labor or materials or reasonable substitutes therefor; (iv) war, governmental action,
court order, condemnation, civil unrest, riot, fire or other casualty; (v) extreme or unusual
weather conditions, acts of God or unforeseen soil conditions; or (vi) other conditions similar to
those enumerated in this Section beyond the reasonable control of the party obligated to perform
(except for financial inability) (collectively, “Force Majeure”) fails punctually to perform any
obligation on its part to be performed under this Lease, then such failure shall be excused and not
be a breach of this Lease by the party in question but only to the extent occasioned by such event.
Notwithstanding the foregoing to the contrary, Force Majeure will not serve to extend or delay the
rights of Tenant to terminate this Lease in the event of casualty as described in Article
12 above, except as expressly set forth in Article 12 above. If any right or option of
either party to take any action under or with respect to this Lease is conditioned upon the same
being exercised within any prescribed period of time or at or before a named date, then such
prescribed period of time and such named date shall be deemed to be extended or delayed, as the
case may be, for a period equal to the period of the delay occasioned by any event described above.
Notwithstanding anything herein contained, however, the provisions of this Section shall not be
applicable to Tenant’s obligation to pay Rent under this Lease or Tenant’s or Landlord’s
obligations to pay any other sums, monies, costs, charges or expenses required to be paid by such
party hereunder.



     14.20 Confidentiality. The parties shall treat the contents of this Lease as confidential
information and shall not disclose the terms and conditions hereof to other parties;
provided, however,



J-50









 







each party may disclose portions of the Lease to its officers, directors, employees,
attorneys, architects, accountants, and other consultants and advisors to the extent such persons
need to know such information provided such parties are first informed of the confidential nature
of such information and each such party agrees to treat the information as confidential. In
addition, the contents of this Lease may be divulged by either party to the extent, but only to the
extent, required by law or in any administrative or judicial proceeding in which such party is
required to divulge such information, however each party shall notify the other prior to making
such disclosure. Notwithstanding anything in this Lease to the contrary, Tenant shall have the
right, in its absolute discretion, to file this Lease with the Securities and Exchange Commission,
if Tenant in good faith determines that such filing is necessary or advisable under the Securities
Exchange Act of 1934, as amended, and such filing shall not be a breach of this Lease. Tenant
shall be responsible for any disclosure of this Lease in violation of the terms of this Section
made by any person who received this Lease or learns of its terms and conditions, directly or
indirectly, from Tenant.



     14.21 Interpretation. Except as specifically provided otherwise in this Lease, Landlord may
act in its sole and absolute discretion when required to act hereunder or when deciding to grant
its consent or approval of any act or request by Tenant. The term, “including” shall mean
“including, without limitation.” All indemnities contained herein shall survive termination of
this Lease with respect to any act, condition or event that is the subject matter of such indemnity
and that occurs prior to the Expiration Date. Notwithstanding anything herein to the contrary, all
provisions of this Lease which require the payment of money or the delivery of property after the
Expiration Date shall survive termination of the Lease.



14.22 Parking




          (a) Base Parking Ratio. Tenant shall lease and Landlord shall provide three (3) parking
passes (each a “Parking Pass”) for every one thousand (1,000) square feet of Net Rentable Area in
the Premises. Rent for each Parking Pass (the “Parking Rent”) will be at the rate set forth in the
chart set forth below plus any applicable taxes or governmental surcharges. The annual increase in
Parking Rent shall take effect each calendar year on April 1st.




	 	 	 
	 	 	Parking Rent per Parking Pass Per Month (exclusive of Time Period taxes and governmental surcharges)
	 	 	 
	Lease Year 1

	 	One Hundred Fifty Dollars ($150.00)
	 
	 	 
	Lease Year 2

	 	One Hundred Fifty-five and 25/100 Dollars ($155.25)
	 
	 	 
	Lease Year 3

	 	One Hundred Sixty and 68/100 Dollars ($160.68)
	 
	 	 
	Lease Year 4

	 	One Hundred Sixty-six and 31/100 Dollars ($166.31)
	 
	 	 
	Lease Year 5

	 	One Hundred Seventy-two and 14/100 Dollars ($172.14)
	 
	 	 
	Lease Year 6

	 	One Hundred Seventy-eight and 16/100 Dollars ($178.16)
	 
	 	 
	Lease Year 7

	 	One Hundred Eighty-four and 40/100 Dollars ($184.40)
	 
	 	 
	Lease Year 8

	 	One Hundred Ninety and 85/100 Dollars ($190.85)
	 
	 	 
	Lease Year 9

	 	One Hundred Ninety-seven and 53/100 Dollars ($197.53)
	 
	 	 
	Lease Year 10

	 	Two Hundred Four and 44/100 Dollars ($204.44)
	 
	 	 
	Lease Year 11

	 	Two Hundred Eleven and 60/100 Dollars ($211.60)
	 
	 	 
	Extension Terms

	 	The rate then being charged by Landlord for monthly
parking in the Garage






     Landlord and Tenant acknowledge that the Building has been designed to include 957 parking
spaces (including spaces designated for carpools and handicapped users) which is less than the
number of



J-51









 







Parking Passes to be allocated to Tenant under this Lease and that parking will be
accommodated through normal overflow and in and out privileges of the users of the Parking Passes.



          (b) Reserved Parking. As part of the allocation of Parking Passes described above, Tenant may
elect to convert up to fifteen (15) of the unreserved Parking Passes into reserved Parking Passes
provided the Parking Rent for each reserved Parking Pass shall be equal to one hundred fifty
percent (150%) of the Parking Rent for the unreserved Parking Passes. All reserved spaces shall be
located on the P1 level of the Garage as designated by Landlord. All such reserved spaces shall be
labeled as “Expedia Visitor Parking” at Tenant’s expense.




          (c) Supplemental Parking. In addition to the Parking Passes described above, if Tenant gives
Landlord at least six (6) months prior written notice, commencing at any time prior to the end of
the eighth (8th) Lease Year Tenant shall lease up to one (1) additional Parking Pass for each one
thousand (1,000) square feet of Net Rentable Area in the Initial Premises (the “Supplemental
Parking”). If Tenant elects to lease Supplemental Parking it shall lease such spaces for the
remainder of the Term except that Tenant shall have a one-time right to cancel the Supplemental
Parking by providing Landlord with six (6) months prior written notice and at the end of such
notice period, Tenant shall have no further right or obligation to lease Supplemental Parking. If
Tenant does not exercise its right to lease Supplemental Parking within the time period set forth
above then this Section 14.22(c) shall immediately terminate and be of no further force and
effect. During any period in which Tenant leases Supplemental Parking, the Parking Rent rates
shall be revised as set forth below and Tenant shall pay Parking Rent only on the number of Parking
Passes calculated under Section 14.22(a).




	 	 	 
	 	 	Parking Rent per Parking Pass Per Month (exclusive of Time Period taxes and governmental surcharges)
	 	 	 
	Lease Year 1

	 	One Hundred Eighty-seven and 50/100 Dollars ($187.50)
	 
	 	 
	Lease Year 2

	 	One Hundred Ninety-four and 06/100 Dollars ($194.06)
	 
	 	 
	Lease Year 3

	 	Two Hundred and 85/100 Dollars ($200.85)
	 
	 	 
	Lease Year 4

	 	Two Hundred Seven and 88/100 Dollars ($207.88)
	 
	 	 
	Lease Year 5

	 	Two Hundred Fifteen and 16/100 Dollars ($215.16)
	 
	 	 
	Lease Year 6

	 	Two Hundred Twenty-two and 69/100 Dollars ($222.69)
	 
	 	 
	Lease Year 7

	 	Two Hundred Thirty and 48/100 Dollars ($230.48)
	 
	 	 
	Lease Year 8

	 	Two Hundred Thirty-eight and 55/100 Dollars ($238.55)
	 
	 	 
	Lease Year 9

	 	Two Hundred Forty-six and 90/100 Dollars ($246.90)
	 
	 	 
	Lease Year 10

	 	Two Hundred Fifty-five and 54/100 Dollars ($255.54)
	 
	 	 
	Lease Year 11

	 	Two Hundred Sixty-four and 48/100 Dollars ($264.48)
	 
	 	 
	Extension Terms

	 	The rate then being charged by Landlord for Parking Passes






     If Tenant leases any Supplemental Parking, all holders of Tenant’s Parking Passes shall be
required to park in a designated parking area on the lowest level(s) of the Garage. The
Supplemental Parking area will include the number of spaces equal to the total number of spaces in
the Garage multiplied by a fraction the numerator of which is the Net Rentable Area of the Premises
and the denominator of which is the Net Rentable Area of the Building (minus the reserved spaces
provided for under Section 14.22(b) unless Tenant elects to locate the reserved spaces in
the Supplemental Parking area in which case Section 14.22(b) shall be of no further force
and effect so long as Supplemental Parking is in effect). If Tenant elects to locate its reserved
spaces in the Supplemental Parking area then Tenant shall pay the rate for such spaces set forth in
this Section 14.22(c). The Supplemental Parking area shall be located approximately on
levels P3 to P8 and shall be for Tenant’s exclusive use. Tenant



J-52









 




acknowledges that in order to provide the Supplemental Parking, Landlord may need to install
and upon Tenant’s request shall install separate gates and access systems and institute parking
management programs such as tandem or valet parking. Upon demand, Tenant shall pay all
out-of-pocket costs associated with creating, operating, and/or maintaining the Supplemental
Parking, including the cost of the parking management programs and installation, maintenance,
repair, replacement and removal of any such separate gates or access systems. If Tenant exercises
its right to cancel the Supplemental Parking then upon expiration of the six (6) months notice
period Tenant shall no longer be obligated to pay Landlord’s costs associated with operating and/or
maintaining such Supplemental Parking.




     For so long as Tenant leases Supplemental Parking, Tenant shall cooperate with Landlord to
ensure that the holders of its Parking Passes park only in the designated area of the Garage.
Tenant agrees that Landlord may terminate or suspend the parking privileges of any holder who does
not park in the designated area or may assess a fine for such violation. Tenant shall not be
responsible for paying fines levied on the holders of its Parking Passes, but Tenant shall not
object to the collection or enforcement of any parking rules against or collection of any fines
from such persons, nor shall Tenant request or assert any rights for offset or rent reductions
(including reduction in Parking Rent) if Landlord suspends the parking rights of any of the holders
of its Parking Passes who have not followed the rules of the Garage.



          (d) General Parking Terms. All Parking Rent shall be payable in advance on the first day of
the month together with the payment of Base Rent and shall be prorated for partial months. Except
as provided herein to the contrary, each Parking Pass shall entitle the vehicle on which the
Parking Pass is presented to park in the parking garage located beneath the Building (the “Garage”)
on a nonpreferential and nonexclusive basis. Landlord shall have exclusive control over the
day-to-day operations of the Garage. Except as provided above with respect to Supplemental
Parking, no specific spaces in the Garage shall be assigned to Tenant. Landlord may make and
modify reasonable nondiscriminatory rules and regulations relating to the parking of vehicles in
the Garage, and Tenant shall abide by such rules and regulations to the extent not inconsistent
with this Lease and shall direct its employees and invitees to abide by such rules and regulations.
Landlord shall make commercially reasonable efforts to enforce such rules and regulations against
all Building tenants. In lieu of providing parking stickers or cards, Landlord may use any
reasonable alternative means of identifying and controlling vehicles authorized to be parked in the
Garage. Landlord may designate areas within the Garage for short term or non-tenant parking only
and Landlord may change such designations from time to time. Landlord reserves the right to alter
the size of the Garage and the configuration of parking spaces and driveways therein, provided that
no such work will deprive Tenant of its allocation of parking spaces as set forth in or materially
impair Tenant’s access to the area of the Garage which such spaces are located. Landlord may
assign any unreserved and unassigned parking spaces and/or make all or a portion of such spaces
reserved or institute any other measures, including but not limited to valet, assisted or tandem
parking, that Landlord determines are necessary or desirable for tenant requirements or orderly and
efficient parking. No such changes may alter Tenant’s rights under this Lease. On a temporary
basis during any period when Landlord is engaged in performing Garage repairs or maintenance,
Landlord at any time may, with prior notice to Tenant and to the extent required for such work,
substitute for Tenant’s Parking Passes an equivalent number of parking spaces in a parking
structure or subterranean parking facility or within a surface parking area located a reasonable
distance from the Building.




     Landlord may operate the Garage or, in its discretion, may arrange for the Garage to be
operated by a qualified third party and, for purposes of this Section 14.22, such operator
shall be entitled to exercise any rights granted to Landlord under this Section. Upon request,
Tenant will execute and deliver a parking agreement with the operator of the Garage on the
operator’s standard form of agreement, with such revisions as Tenant may in good faith request,
subject to Landlord’s reasonable approval. If Landlord hires a third party to operate the Garage
then the monthly parking charges shall be paid to such operator at such place as the operator may
direct but the parking charges shall be considered additional Rent hereunder.



J-53









 





          (e) Landlord shall make good faith efforts to notify Tenant or to cause its parking operator
to notify Tenant if month-to-month parking passes become available in the Garage so that Tenant’s
employees can purchase such passes on a month-to-month basis at the rate that Landlord is
then-charging for month-to-month parking in the Garage.




          (f) If no portion of the Garage (other than Tenant’s Supplemental Parking area) is used for
valet or assisted parking then Landlord will not commit to provide parking passes to all of the
other tenants in the Building (collectively) at a ratio of more than three (3) parking passes for
every one thousand (1,000) square feet of Net Rentable Area in the Building (less the Net Rentable
Area of the Initial Premises).




     14.23 Rent Assumption. Landlord shall and hereby agrees to assume Tenant’s monetary
obligations with respect to the payment of base rent, operating costs, mandatory parking charges
and taxes to the extent set forth on Exhibit J attached hereto under those certain leases
and subleases of office space described on Exhibit J (the “Existing Leases”) to the extent
such obligations arise from and after the later of (a) November 1, 2008, and (b) the date,
determined on a building by building basis, on which Tenant has vacated the premises under each
Existing Lease in the condition required under such Existing Lease excluding only completion of
repair and restoration obligations as provided below. Notwithstanding the foregoing, Landlord
shall pay the full amount of operating costs due under the Existing Leases during such period and
the parties acknowledge that Exhibit J is merely an estimate of the amount of operating
costs. Tenant within sixty (60) days after receipt of notice from Landlord shall complete, at
Tenant’s sole cost and expense any repair and restoration work required under the terms of the
Existing Leases unless Tenant obtains a written waiver of such requirements from the applicable
landlord and if such work is not completed within that period, Landlord shall be relieved from any
obligation under this Section 14.23 with respect to the premises under the Existing Lease
that requires restoration until such work is completed. In determining whether Tenant has
completed its restoration obligation under each Existing Lease, Landlord shall act reasonably and
shall not require Tenant to obtain written confirmation from the applicable landlord that Tenant
has completed its obligations. In no event shall Landlord be obligated to assume or pay any other
obligations under an Existing Lease even if such obligations have been reduced to a sum certain.
If permitted by the applicable landlord, Landlord shall make all payments of base rent, operating
costs, mandatory parking charges and taxes directly to the landlord under the Existing Lease as and
when such payments are due. Landlord and Tenant shall work together in good faith to negotiate an
early termination of the Existing Leases provided that Landlord shall pay all costs or penalties
related thereto. Landlord and Tenant shall also work together in good faith to secure a sublease
for any of the Existing Leases provided that Landlord shall pay all costs related thereto and shall
be entitled to all income received under such sublease.



     14.24 Brokers. Tenant and Landlord each represent and warrant to the other that it has had no
dealing with any broker or agent other than the Broker(s) identified in the Basic Lease Information
Sheet as Item 15. Tenant and Landlord shall each indemnify, defend and hold the other
party harmless from and against any and all liabilities for commissions or other compensation or
charges claimed by any other broker or agent based on dealings with the indemnifying party with
respect to this Lease. The foregoing indemnity shall survive termination or earlier expiration of
this Lease. It shall be the responsibility of Tenant and Tenant’s Broker to compensate any other
representatives assisting Tenant or Tenant’s Broker in connection with this Lease and the
transactions contemplated hereunder. Landlord shall pay Tenant’s Broker a commission equal to Seven
and 50/100 Dollars ($7.50) per square foot of Net Rentable Area in the Initial Premises, payable:
(i) one-half (1/2) upon execution and delivery of this Lease by Landlord and Tenant, and (ii)
one-half upon the date on which Tenant occupies and commences payment of Rent on a least half of
the Initial Premises.



     14.25 Roof Top Equipment. Tenant shall have the nonexclusive right, at no additional rent to
Tenant, to use a portion of the roof of the Building (such portion to be no greater than Tenant’s
Proportionate Share) to install, maintain, repair, and replace: (a) satellite dishes or antenna
measuring less



J-54









 







than thirty-six (36) inches in diameter (the “Devices”) for Tenant’s and its general business
purposes (but not for use by any third party other than Transferees pursuant to this Lease unless
such third party’s use is related to Tenant’s general business purposes) at Tenant’s sole cost and
expense; and (b) supplemental HVAC unit(s) serving the Premises, at Tenant’s sole cost and expense.
Tenant may not grant any other party other than Transferees pursuant to this Lease, any right to
use any Devices for any purpose whatsoever unless such third party’s use is related to Tenant’s
general business purposes. The Devices may not be used for providing cellular phone service or
commercial broadcasts. Tenant’s Devices shall not interfere with the operation of any equipment
used by Landlord or its service providers, or any equipment used by other occupants of the Building
that is in place prior to the placement of Tenant’s Devices and if such interference occurs
Landlord may immediately revoke Tenant’s right to use the Devices that are determined to be causing
such interference. The design, appearance, size, location and method of installation of the any
Devices and any HVAC units to be placed on the roof, and the use thereof shall be subject to all
applicable Laws and Landlord’s prior approval which shall not be unreasonably withheld, conditioned
or delayed. Landlord makes no representation or warranty whatsoever as concerns (i) the use of the
roof by Tenant, or (ii) the safety thereof, or (iii) that the installation of the Devices will be
permitted under applicable Laws, or (iv) that such use or Devices will function as intended.
Tenant shall be solely responsible for designing any improvements to the roof and the Devices in a
manner that complies with all Laws, in a manner that is compatible with the design of the Building
and other equipment located on the roof of the Building and including appropriate screening as may
be required by Law or by Landlord to protect the integrity of the Building design. If at any time
Tenant’s use of the roof or the Devices ceases to be permitted under applicable Laws, Tenant’s
rights under this Section shall terminate and be of no further force or effect. Upon termination
of Tenant’s rights under this Section or upon Lease termination, Tenant at its sole cost and
expense shall promptly remove any improvement installed on the roof by Tenant including the Devices
and all related wiring, plumbing, and equipment from the Building and shall restore the Building to
its condition existing prior to such installation. Tenant shall be solely responsible for
installation and maintenance of any improvements, including any Devices and any HVAC units
installed by Tenant on the roof and shall ensure that such installation and maintenance do not void
or limit any warranty Landlord may have on the roof or roof membrane. Tenant shall provide
Landlord with full plans and specifications for any intended improvements to the roof related to
any Devices or any HVAC units, for Landlord’s approval prior to installation thereof and such plans
shall include details regarding Tenant’s proposed method of installation; Landlord will notify
Tenant of Landlord’s approval of same (or disapproval, specifying in reasonable detail the basis
for such disapproval) within twenty (20) Business Days following delivery of Tenant’s request, plus
such additional time as may be reasonably required in order for Landlord’s consultants to review
same. Tenant shall be permitted to install, maintain, remove and replace cables or lines within
the Building outside the Premises (at locations designated by Landlord) to connect any Devices or
any HVAC units to the Premises. Tenant acknowledges and agrees that Landlord has not represented or
warranted that Tenant will have unlimited access to riser space or other space outside the Premises
to accommodate Tenant’s needs. Prior to commencement of any work under this Section, Tenant shall
obtain and deliver to Landlord all necessary governmental permits for any improvement, including
the Devices, any HVAC units and related equipment. Tenant shall indemnify and hold harmless
Landlord from any Claims arising out of or in connection with any use by Tenant of the roof and in
connection with Tenant’s installation, maintenance, use or removal of any improvement, including
any Devices, any HVAC units and related equipment in the Building. Landlord shall not permit other
tenants or third parties to install roof-top equipment on the Building in a manner which
unreasonably interferes with Tenant’s reasonable use of its Devices.



     14.26 USA Patriot Act Disclosures. Pursuant to United States Presidential Executive Order
13224 signed on September 24, 2001, and entitled “Blocking Property and Prohibiting Transactions
with Persons Who Commit, Threaten to Commit, or Support Terrorism” (“Executive Order”), Landlord is
required to ensure that it does not transact business with persons or entities determined to have



J-55









 







committed, or to pose a risk of committing or supporting, terrorist acts and those identified
on the list of Specially Designated Nationals and Blocked Persons (“List”), generated by the Office
of Foreign Assets Control of the U.S. Department of the Treasury. The names or aliases of these
persons or entities (“Blocked Persons”) are updated from time to time. In the event Landlord
learns that Tenant’s name or the name of any of the Covered Parties appears on the List, Landlord
reserves the right to delay the agreements contemplated by this Lease pending Landlord’s
investigation into the matter. If Landlord determines that Tenant or any Covered Person is a
Blocked Person and Tenant cannot remedy such situation within thirty (30) days following notice
from Landlord (or such longer period as may be reasonably necessary in order to remedy such
situation, provided that Tenant promptly commences and thereafter diligently prosecutes its efforts
to remedy the situation), Landlord reserves the right to declare such failure as default hereunder
and/or take all other actions necessary to comply with the requirements of the Executive Order.
The provisions of this paragraph will survive termination of this Lease.



     Tenant represents to Landlord that to the best of its knowledge, (i) neither Tenant, its
managing member, nor any person or entity that directly owns ten percent (10%) or greater equity
interest in it nor any of its officers or directors or managing member (collectively the “Covered
Parties“) is a person or entity with whom U.S. persons or entities are restricted from doing
business under regulations of the Office of Foreign Asset Control (“OFAC“) of the Department of the
U.S. Treasury (including those named on the List) or under the Executive Order or other
governmental action, and (ii) that throughout the term of this Lease, Tenant and each of the
Covered Parties shall comply with the Executive Order. Any breach of this representation and
warranty shall be subject to Landlord’s rights described in the immediately preceding paragraph.
At any time and from time-to-time during the Term, Tenant shall deliver to Landlord, within ten
(10) Business Days after receipt of a written request therefor, a written certification or such
other evidence reasonably acceptable to Landlord evidencing and confirming Tenant’s compliance with
this provision.



     Landlord represents to Tenant that to the best of its knowledge,(y) neither Landlord, its
managing member, nor any person or entity that directly owns ten percent (10%) or greater equity
interest in it nor any of its officers or directors or managing member (collectively, “Landlord
Covered Parties”) is a person or entity with whom U.S. persons or entities are restricted from
doing business under regulations of OFAC (including those named on the List) or under the Executive
Order or other governmental action, and (z) that throughout the term of this Lease, Landlord and
each of the Landlord’s Covered Parties shall comply with the Executive Order. At any time and from
time-to-time during the Term, Landlord shall deliver to Tenant, within ten (10) Business Days after
receipt of a written request therefor, a written certification or such other evidence reasonably
acceptable to Tenant evidencing and confirming Landlord’s compliance with this provision.



     14.27 Generator.



          (a) Subject to the terms of this Section 14.27, Tenant shall have a non-exclusive
right to install one or more diesel fuel powered emergency power generators, a diesel fuel tank,
its enclosures, connectors to electrical service and conduit to the Premises (together, the
“Generator”) and associated uninterrupted power supply switching facilities, its enclosures,
connectors to electrical service and conduit to the Premises (the “UPS”) on the P-1 level of the
Garage in the location designated by Landlord as shown on Exhibit A. Prior to
installation, Landlord must approve, which approval shall not be unreasonably withheld, conditioned
or delayed: (1) the actual Generator and the UPS, (2) drawings submitted by Tenant showing the
Generator and UPS to be installed, method of installation and such other information concerning the
installation, use and maintenance of the Generator and the UPS which Landlord may reasonably
request, and (3) the contractor selected by Tenant to install the Generator and the UPS, and the
non-financial terms of the contract between Tenant and its contractor that may affect the Building.
Tenant shall be solely responsible for obtaining (with Landlord’s approval) all permits and
approvals required by any governmental entities to install, operate, maintain, or decommission the
Generator and the UPS and shall provide all permits to Landlord in advance. Tenant shall repair
and

J-56









 








maintain the Generator and the UPS at Tenant’s sole cost and expense using contractors
approved by Landlord, and Tenant shall comply with all the laws, rules, regulations, ordinances and
standards of all governmental authorities having jurisdiction over the Building to the extent such
laws, rules, regulations, ordinances and standards concern the Generator and/or the UPS. Tenant
shall be responsible for all additional costs of any kind whatsoever incurred by Landlord
attributable to the use, presence, operation, maintenance, or decommissioning of the Generator or
the UPS as an Extra Service. Tenant shall pay for all utilities used or consumed in connection
with the Generator or the UPS. Tenant shall pay all personal property taxes, if any, separately
assessed with respect to the Generator or the UPS; and if and to the extent the Generator or the
UPS are assessed for tax purposes as part of the Building or Landlord’s personal property, Tenant
shall reimburse Landlord for all taxes attributable to the Generator or UPS on the earlier of (i)
thirty (30) days after Landlord’s written demand for such taxes, or (ii) the date such taxes are
due. The Generator and the UPS shall be used only for periodic testing and, only in the event
Tenant’s primary electrical service is interrupted, to provide power to the Premises. All testing
shall take place at times reasonably selected by Landlord to minimize interference with other
tenants. The Generator and the UPS shall be used for backup power for Tenant, and may not be used
as a primary power source or by any other person or entity without Landlord’s consent which shall
be in Landlord’s complete and sole discretion.




          (b) Installation, maintenance and use of the Generator and the UPS shall be designed and
operated in such a way as to prevent or minimize in a manner acceptable to all affected parties any
interference with the Base Building systems of the Building or the quiet enjoyment by any other
tenant or occupant of the Building. The Generator and the UPS shall at all times during the term
of this Lease remain the property of Tenant. Tenant, upon notice from Landlord, shall repair any
damage to the Building or Garage caused by the installation, operation or removal of the Generator
and UPS. If Tenant fails to do so, Landlord may do so on Tenant’s behalf as an Extra Service and
Tenant shall reimburse Landlord for such within thirty (30) days after receipt of a written request
for payment accompanied by reasonably detailed back-up documentation. Landlord agrees to permit
Tenant reasonable access to such portions of the Building as is necessary to facilitate the use of
the Generator and the UPS and the removal of the Generator and UPS. The Generator and the UPS
shall be installed and used at Tenant’s sole risk, and in no event (other than in the case of
Landlord’s gross negligence or willful misconduct) shall Landlord be liable under any circumstances
for any damage to the Generator, the UPS or the loss of use related to the Generator or the UPS.




          (c) Tenant shall be solely responsible for complying with all laws, rules and regulations with
respect to the Generator and the UPS and, prior to commencement of installation, Tenant shall
obtain all necessary governmental permits therefor. Tenant shall obtain insurance (naming Landlord
as an additional insured) insuring against any loss or damage arising out of or relating to any
contamination or release of any fuel from the Generator and shall not be permitted to install the
fuel tank until Tenant has provided a certificate of such policy to Landlord. Tenant shall be
permitted to install, maintain, remove and replace conduit, cables or lines and ducts within the
Building outside the Premises to connect the Generator to the Premises and to exhaust fumes at
locations designated by Landlord. Tenant shall not be required to pay Landlord any rent for the
space occupied by the Generator and UPS but if the location thereof results in the loss of parking
spaces then the number of parking spaces lost may be deducted from the number of Parking Passes
available to Tenant hereunder. If the Generator or UPS fail to work properly or to provide power
to the Premises, Landlord shall have no obligation or liability whatsoever with respect to such
failure, except to the extent Tenant demonstrates that such failure is caused by Landlord’s gross
negligence or willful misconduct.




     14.28 Changes to Base Building. Subject to the terms of this Section, Landlord has agreed
conceptually to the changes to the Base Building described in this Section, provided that Tenant
must obtain the Landlord’s approval of the plans and specifications for such changes which
approval, notwithstanding anything contained in this Lease or Exhibit C to the contrary,
shall not be unreasonably



J-57









 







withheld, conditioned or delayed. Any such modifications must be approved by all applicable
governmental agencies and by Landlord’s lender, insurers and its architects, engineers and safety
consultants. Tenant shall pay all hard and soft costs of designing, permitting, and implementing
the approved modifications (including but not limited to the costs of Landlord’s outside
consultants, the cost of purchasing any additional equipment, and increases in insurance premiums)
relating to and Landlord shall have no obligation to approve or implement any changes that are not
fully paid for by Tenant. Tenant shall also pay any additional costs of operating the modified
system in excess of the cost of operating the system as currently designed. All such modifications
shall be considered changes to the Base Building for purposes of Exhibit C hereto.



          (a) Tenant may modify the Building’s emergency generator to provide additional capacity or to
serve additional purposes than that for which it is designed provided that the generator and its
tanks must be located within the area designated by Landlord in the Base Building Plans for such
purpose. No parking areas shall be impacted by any changes to the Building’s emergency generator.
If Landlord approves any changes to the Building’s emergency generator, Landlord shall not be
deemed to have made any representation or warranty with respect to the emergency generator or its
ability to serve Tenant’s needs and if the emergency generator fails to work properly or to provide
power to the Premises, Landlord shall have no obligation or liability whatsoever with respect to
such failure, except to the extent Tenant demonstrates that such failure is caused by Landlord’s
gross negligence or willful misconduct with respect to the operation or maintenance thereof.




          (b) Tenant to modify the Building’s elevators and the core walls on floor 11 to provide a
transfer floor between the low-rise and high-rise elevator banks provided that Tenant shall use the
same elevator doors and elevator controls that are being used by Landlord in the balance of the
Building. If Tenant elects to build out one of its floors as a conferencing floor, it shall do so
on floor 11.




     14.29 Dedicated Move In. Landlord shall allow Tenant to reserve the freight elevator and
loading dock for the majority of time for a period from 5:00 p.m. on a Friday until 7:00 a.m. on
the next business day on two (2) weekends mutually acceptable to Landlord and Tenant for Tenant to
move into the Premises. During that period, Landlord shall pad the all of the passenger elevators
in the low rise elevator bank and one (1) of the elevators in the high rise elevator bank (or all
of the high rise elevators if no other tenant is then occupying the Building) to permit them to be
used for movement of smaller items of freight. Tenant shall reimburse Landlord for the cost of the
work to pad the elevators and shall be responsible for the cost to repair any damage to the
passenger elevators as a result of the use thereof to move freight.



J-58









 





     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the day and year first above written.



LANDLORD:




TOWER 333 LLC,

a Delaware limited liability company




	 	 	 	 	 
	 

	 	By:
	 	Tower 333 SPE LLC,
	 

	 	 	 	a Delaware limited liability company,
	 

	 	 	 	its Managing Member






	 	 	 	 	 
	 

	 	By:
	 	HC Green Development Fund Limited Partnership,
	 

	 	 	 	a Delaware limited partnership,

its Sole Equity Member






	 	 	 	 	 
	 

	 	By:
	 	Hines HCG Associates Limited Partnership,
	 

	 	 	 	a Texas limited partnership,
	 

	 	 	 	its General Partner






	 	 	 	 	 
	 

	 	By:
	 	Hines Fund Management, L.L.C.,
	 

	 	 	 	a Delaware limited liability company,
	 

	 	 	 	its General Partner






	 	 	 	 	 
	 

	 	By:
	 	Hines Interests Limited Partnership,
	 

	 	 	 	a Delaware limited partnership,
	 

	 	 	 	its Sole Member






	 	 	 	 	 
	 

	 	By:
	 	Hines Holdings, Inc.,
	 

	 	 	 	a Texas corporation,
	 

	 	 	 	its General Partner






	 	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ James C. Buie, Jr.	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:

Title:
	 	James C. Buie, Jr.


EVP
 

	 	  






TENANT:




Expedia, Inc.

a Washington Corporation




	 	 	 	 	 
	By:

	 	/s/ Dara Khosrowshahi
 

	 	 
	Name:

	 	Dara Khosrowshahi
	 	 
	Title:

	 	President and CEO
 

	 	 







J-59