BASIC LEASE INFORMATION
LEASE DATE: June 4, 1999
LANDLORD: XXXXX & COMPANY, a division of Xxxxx
Bank N.A., as trustee of the Multi-
Employer Property Trust, a trust
organized under 12 C.F.R. Section 9.18
ADDRESS OF LANDLORD: c/o Xxxxxxxx Xxxx Company
0000 XX Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxx 00000-0000
TENANT: Advanced Materials, Inc.
a California corporation
PREMISES: 9400 S.W. Tualatin Sherwood Road
Tualatin, Oregon 97062
PARAGRAPH 1 "Premises" approximately 14,585 square feet in Building A of
approximately 37,219 square feet (computed from measurements
to the exterior of outside walls of the building and to the
center of interior walls), such premises being shown and
outlined on the plan attached hereto as Exhibit A, and being
part of the real property described in Exhibit B attached
hereto.
PARAGRAPH 1 Lease Term: Commencing on the "Commencement Date" as
hereinafter defined and ending 25 months thereafter except
that in the event the Commencement Date is a date other
than the first day of a calendar month, such term shall
extend for said number of months in addition to the
remainder of the calendar month following the Commencement
Date.
PARAGRAPH 1 Scheduled Term Commencement Date: August 1, 1999
PARAGRAPH 2 Monthly Base Rent: $7,514.00
PARAGRAPH 2B Security Deposit: $4,041.50
PARAGRAPH 4A Tenant's Initial Monthly Escrow Payment
for Taxes, Assessments and Other Charges: $727.00
PARAGRAPH 7 Tenant's Initial Monthly Common Area
Maintenance Charge: $999.00
PARAGRAPH 13B Tenant's Initial Monthly Insurance
Escrow Payment $80.00
Tenant's Initial Monthly Payment Total: $9,320.00
The foregoing Basic Lease Information is hereby incorporated
into and made a part of this Lease. Each reference in this
Lease to any of the Basic Lease Information shall mean the
respective information herein above set forth and shall be
construed to incorporate all of the terms provided under the
particular Lease paragraph pertaining to such Basic Lease
Information. In the event of any conflict between any Basic
Lease Information and this Lease, the former shall control.
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LEASE AGREEMENT
THIS LEASE AGREEMENT, made and entered into by and between XXXXX BANK N.A.,
as trustee of the Multi-Employer Property Trust, a trust organized under 12
C.F.R. Section 9.18 hereinafter referred to as "Landlord", and Advanced
Materials, Inc., a California corporation, hereinafter referred to as
"Tenant";
WITNESSETH
1. PREMISES AND TERM.
A. In consideration of the obligation of Tenant to pay rent as herein
provided, and in consideration of the other terms, provisions and
covenants hereof, Landlord hereby demises and leases to Tenant, and
Tenant hereby takes and leases from Landlord those certain Premises as
outlined on Exhibit "A" attached hereto (hereinafter referred to as the
"Premises"), together with all rights, privileges, easements,
appurtenances, and amenities belonging to or in any way appertaining to
the Premises and together with the buildings, sidewalks, curbs,
driveways, and other improvements situated or to be situated upon land
described in Exhibit B attached hereto (the "Project").
B. TO HAVE AND TO HOLD the same for a term commencing on the
"Commencement Date", as hereinafter defined, and ending thereafter as
specified in the Basic Lease Information (the "Lease Term"); provided,
however, that, in the event the "Commencement Date" is a date other than
the first day of a calendar month, such term shall extend for the
number of months in addition to the remainder of the calendar month
following the "Commencement Date".
C. The "Commencement Date" shall be the earlier of: (i) the Scheduled
Term Commencement Date shown in the Basic Lease Information, or (ii) the
date upon which the Premises shall have been substantially completed in
accordance with the plans and specifications described in Exhibit "C"
attached hereto. If the Premises shall not have been substantially
completed by the Scheduled Term Commencement Date and the delay in
substantially completing the Premises is not caused in whole or in part
by any act or omission of Tenant, or Tenant's agents, employees,
contractors or subcontractors, Tenant's obligations to pay rent under
this Lease shall commence on the date the Premises are substantially
completed. In no event shall Landlord be liable to Tenant for any loss or
damage resulting from any delay for any reason whatsoever in the
substantial completion of the Premises. Landlord shall notify Xxxxxx in
writing as soon as Landlord deems the Premises to be substantially
completed and ready for occupancy. If Xxxxxx believes that the Premises
have not in fact been substantially completed, Tenant shall notify
Landlord in writing of Tenant's objections within three (3) days of
Landlord's notice to Tenant that the Premises are substantially
complete. Landlord shall have a reasonable time after delivery of such
notice in which to take such corrective action as Landlord, in its sole
discretion, seems appropriate, and shall notify Tenant in writing as
soon as Landlord deems that such corrective action has been completed so
that the Premises are substantially completed and ready for occupancy.
In the event of any dispute as to the substantial completion of work
required to be performed by Landlord, the certificate of Landlord's
architect or general contractor shall be conclusive. The taking of
possession by Tenant of any portion of the Premises for any reason shall
be deemed conclusively to establish that the Premises have been
substantially completed in accordance with the plans and specifications
and that the Premises are in good and satisfactory condition as of when
possession was so taken. Tenant acknowledges that no representations as
to the condition or repair of the Premises have been made by Landlord,
unless such are expressly set forth in this Lease. After the
Commencement Date, Tenant shall, upon demand, execute and deliver to
Landlord a letter of acceptance of delivery of the Premises, specifying
the Commencement Date.
2. BASE RENT AND SECURITY DEPOSIT:
X. Xxxxxx agrees to pay to Landlord Monthly Base Rent for the Premises,
in advance, without demand, deduction, or set off, for the entire Lease
Term at the rate specified in the Basic Lease Information, and Addendum
A payable in monthly installments. The first monthly installment shall
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be due and payable on the date hereof and thereafter monthly
installments of Monthly Base Rent shall be due and payable on the first
day of each calendar month succeeding the Commencement Date during the
Lease Term, except that the payment of Monthly Base Rent for any
fractional calendar month at the commencement or end of this Lease shall
be prorated on the basis of a 30-day month.
B. In addition, Xxxxxx agrees to deposit with Landlord on the date
hereof a security deposit in the amount specified in the Basic Lease
Information, which sum shall be held by Landlord, without obligation for
interest, as security for the performance of Tenant's covenants and
obligations under this Lease, it being expressly understood and agreed
that such deposit is not an advance rental deposit, not the last month's
rent and not a measure of Landlord's damages in the event of Tenant's
default. Upon the occurrence of any default by Tenant under this Lease,
Landlord may, from time to time, without prejudice to any other remedy
provided herein or provided by law, use such deposit to the extent
necessary to make good any arrears of rent or other payment due Landlord
hereunder, and any other damage, injury, expense or liability caused by
such event of default; or to perform any obligation required of Tenant
under this Lease; and Tenant shall pay to Landlord on demand the amount
so applied in order to restore the security deposit to its original
amount. Although the security deposit shall be deemed the property of
Landlord, any remaining balance of such deposit shall be returned by
Landlord to Tenant within thirty (30) days of the date following the
termination of this Lease that all of Tenant's obligations under this
Lease have been fulfilled. Tenant may not mortgage, assign, transfer or
encumber the Security Deposit and any such act on the part of Tenant
shall be without force or effect. In the event any bankruptcy,
insolvency, reorganization or other creditor-debtor proceedings shall be
instituted by or against Tenant, the Security Deposit shall be deemed to
be applied first to the payment of Monthly Base Rent, Additional Rent
and all other sums payable under this Lease to Landlord for all periods
prior to the institution of such proceedings and the balance, if any,
may be retained by Landlord and applied against Landlord's damages.
3. USE. The Premises shall be used only for THE PURPOSE OF GENERAL OFFICE,
RECEIVING, STORAGE, SHIPPING, ASSEMBLY, LIGHT MANUFACTURING, AND SELLING
(OTHER THAN RETAIL) PRODUCTS, MATERIALS AND MERCHANDISE MADE AND/OR
DISTRIBUTED BY TENANT AND FOR SUCH OTHER LAWFUL PURPOSES AS MAY BE
INCIDENTAL THERETO and for no other purpose whatsoever without Landlord's
prior written consent. Outside storage, including, without limitation,
trucks and other vehicles, is prohibited without Landlord's prior
written consent. Tenant shall at its own cost and expense obtain and
maintain any and all licenses, permits, and other approval necessary or
appropriate for its use, occupation or operation of the Premises.
Tenant's inability to obtain or maintain any such license, permit or
approval necessary or appropriate for its use, occupation or operation
of the Premises shall not relieve it of its obligations under this
Lease, including the obligation to pay Base Rent and additional rent.
Tenant shall comply with all governmental laws, ordinances, rules and
regulations applicable to the use and condition of the Premises, and
shall promptly comply with all governmental orders and directives
including, but not limited to, those regarding the correction,
prevention and abatement of nuisances in or upon, or connected with, the
Premises, all at Tenant's sole expense. Without limiting the generality
of the foregoing, Tenant shall comply with the requirements of the
Americans with Disabilities Act and all other laws, regulations, orders,
codes, ordinances and governmental laws pertaining to the Premises and
Xxxxxx's use thereof at Tenant's sole cost and expense. Tenant shall not
commit or allow to be committed or exist: (a) any waste upon the
Premises, (b) any public or private nuisance, (c) any objectionable or
unpleasant odors, smoke, dust, gas, noise or vibrations to emanate from
the Premises, or (d) any act or condition which disturbs the quiet
enjoyment of any other tenant in the Building, violates any of
Landlord's contracts affecting any or all of the land or Building,
creates or contributes to any work stoppage, strike, picketing, labor
disruption or dispute, interferes in any way with the business of
Landlord or any other tenant in the Building or with the rights or
privileges of any contractors, subcontractors, licensees, agents,
concessionaires, subtenants, servants, employees, customers, guests,
invitees or visitors or any other persons lawfully in and upon the land
or Building, or causes any impairment or reduction of the good will or
reputation of the land or Building. In addition to any other remedies
Landlord may have for a breach by Tenant of the terms of this Paragraph
3, Landlord shall have the right to have Tenant evicted from the
Premises. Without Landlord's prior written consent, Tenant shall not
receive, store or otherwise handle any product, material or merchandise
which is explosive, highly inflammable, hazardous or a pollutant.
Tenant will not permit the Premises to be used for any purpose or in any
manner (including, without limitation, any method of storage) which
would render the insurance thereon void or the insurance risk more
hazardous or cause the State Board of Insurance or other insurance
authority to disallow any sprinkler credits. In the event Xxxxxx's use of
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Premises shall result in an increase in insurance premiums, Tenant shall
be solely responsible for such increase.
4. TAXES AND OTHER CHARGES.
X. Xxxxxx agrees to pay its proportionate share of any and all real and
personal property taxes, regular and special assessments (including, but
not limited to, local improvement district assessments to finance the
costs of streets, sewers, traffic lights and other utilities), license
fees and other charges of any kind and nature whatsoever, payable as a
result of any public or quasi-public authority, private party, or
owner's association levy, assessment or imposition against, or arising
out of Landlord's ownership of or interest in, the Project, together
with the building and the grounds, parking areas, driveways, roads, and
alleys around the building in which the Premises are located, or any
part thereof (hereinafter collectively referred to as the "Charges").
During each month of the Lease Term, Tenant shall make a monthly escrow
deposit with Landlord (the "Escrow Payment") equal to 1/12 of its
proportionate share of the Charges which Landlord estimates will be due
and payable for that particular calendar year. Tenant authorizes
Landlord to use the funds deposited by Tenant with Landlord under this
Paragraph 4 to pay the Charges. Each Escrow Payment shall be due and
payable, as additional rent, at the same time and in the same manner as
the payment of Monthly Base Rent as provided herein. The amount of the
initial monthly Escrow Payment will be specified in the Base Lease
Information. The initial Escrow Payment is based upon Tenant's
proportionate share of the estimated Charges for the year in question,
and the monthly Escrow Payment is subject to increase or decrease as
determined by Landlord to reflect an accurate escrow of Tenant's
estimated proportionate share of the Charges. The Escrow Payment account
of Tenant shall be reconciled annually. If the Tenant's total Escrow
Payments are less than Tenant's actual proportionate share of the
Charges, Tenant shall pay to Landlord upon demand the difference; if the
Tenant's total Escrow Payments are more than Tenant's actual
proportionate share of the Charges, Landlord shall retain such excess
and credit it to Tenant's Escrow Payment account for the successive
year's Charges. Tenant's proportionate share of the Charges shall be
computed by multiplying the Charges by a fraction, the numerator of
which shall be the number of gross leasable square feet of floor space
in the Premises and the denominator of which shall be the total
applicable gross leasable square footage or such other equitable
apportionment as Landlord may adopt.
B. If Tenant should fail to pay any Escrow Payments, taxes,
assessments, licensee fees or other charges required to be paid by
Tenant hereunder, in addition to any other remedies provided herein,
Landlord may, if it so elects, pay such Escrow Payments or taxes,
assessments, license fees and other charges. Any sums so paid by
Landlord shall be deemed to be additional rental owing by Tenant to
Landlord and due and payable upon demand as additional rental together
with interest at the rate of eighteen percent (18%) per annum from the
date of payment by Landlord until repaid by Xxxxxx.
C. (1) If at any time during the Lease Term, the present method of
taxation shall be changed so that in lieu of the whole or any part of
any taxes, assessments, fees or charges levied, assessed or imposed on
real estate and the improvements thereon, there shall be levied,
assessed or imposed on Landlord a capital levy or other tax directly on
the rents received therefrom and/or a franchise tax, assessment, levy or
charge measured by or based, in whole or in part, upon such rents or the
present or any future building or buildings, then all such taxes,
assessments, fees or charges, or the part thereof so measured or based,
shall be deemed to be included within the term "Charges" for the
purposes of this Lease.
(2) Tenant may, at its sole cost and expense, in its own name,
dispute and contest any Charges by appropriate proceedings diligently
conducted in good faith, but only after Tenant in such contest has
deposited with Landlord the amount so contested and unpaid, which shall
be held by Landlord without obligation for interest until the
termination of the proceedings, at which time the amount(s) deposited
shall be applied by Landlord toward the payment of the items held valid
(plus any court costs, interest, penalties and other liabilities
associated with the proceedings), and Xxxxxx's share of any excess shall
be returned to Tenant. Xxxxxx further agrees to pay to Landlord upon
demand all court costs, interest, penalties and other liabilities
relating to such proceedings. Xxxxxx agrees to indemnity, protect,
defend and hold harmless the Indemnified Parties (as defined below) from
and against any claims, liabilities, costs, damages or expenses
(including attorneys' fees) in connection with any such proceedings.
(3) Any payment to be made pursuant to this Paragraph 4 with
respect to the calendar year in which this Lease commences or terminates
shall bear the same ratio to the
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payment which would be required to be made for the full calendar year as
that part of such calendar year covered by the Lease Term bears to a
full calendar year.
X. Xxxxxx shall be liable for all taxes levied against personal
property and trade fixtures placed by Tenant in the Premises. If any
such taxes are levied against Landlord or Landlord's property and if
Landlord elects to pay the same or if the assessed value of Landlord's
property is increased by inclusion of personal property and trade
fixtures placed by Tenant in the Premises and Landlord elects to pay
the taxes based on such increase, Tenant shall pay to Landlord upon
demand that part of such taxes for which Xxxxxx is primarily liable
hereunder.
5. TENANT'S MAINTENANCE.
A. Tenant shall at its own cost and expense keep and maintain all parts
of the Premises (except those for which Landlord is expressly
responsible under the terms of this Lease) in good condition, promptly
making all necessary or prudent repairs and replacements, including, but
not limited to, windows, glass and plate glass, doors, any special
office entry, interior walls and finish work, floor and floor covering,
downspouts, gutters, heating and air conditioning systems, dock boards,
truck doors, dock bumpers, paving, and plumbing work and fixtures.
Tenant shall also perform termite and pest extermination, regularly
remove trash and debris, keep the parking areas, driveways, alleys and
the whole of the Premises in a clean and sanitary condition, replace
light fixtures and bulbs and, in all other respects, maintain the
Premises in good working order and condition. Tenant shall repair all
wind damage to glass.
B. Tenant shall not damage any wall or disturb the integrity and
support provided by any wall and shall, at its sole cost and expense,
promptly repair any damage or injury to any wall caused by Tenant or its
employees, agents, licensees or invitees.
C. Tenant and its employees, agents, licensees and invitees shall have
the right to use the parking areas, if any, as may be designated by
Landlord in writing, subject to such reasonable rules and regulations as
Landlord may from time to time prescribe and subject to rights of
ingress and egress of other tenants. Landlord shall not be responsible
for enforcing any exclusive parking rights granted to against any third
parties. If Tenant can be clearly identified as being responsible for
obstructions or stoppage of a common sanitary sewage line, then Tenant
shall pay the cost of repairing such sewage line, upon demand as
additional rent.
D. Tenant shall, at its own cost and expense, enter into a regularly
scheduled preventive maintenance/service contract with a maintenance
contractor for servicing all heating and air conditioning systems and
equipment within the Premises.
E. If Tenant fails to maintain or repair the Premises in accordance
with this paragraph, then Landlord may, but shall not be required to,
enter the Premises upon two (2) business days prior written notice to
Tenant (or immediately without any notice in the case of an emergency)
to perform such maintenance or repair at Tenant's sole cost and expense.
Tenant shall pay to Landlord the cost of such maintenance or repair plus
a fifteen percent (15%) administration fee within ten (10) business days
of written demand from Landlord.
6. LANDLORD'S REPAIRS. After written notice from Tenant, Landlord shall
use commercially reasonable efforts to make such repairs to the roof,
exterior walls and foundations as Landlord deems necessary, and Tenant
shall pay its proportionate share of the costs of such repairs as
provided in Paragraph 7. Tenant shall repair and pay for any damage to
such items to be maintained by Landlord caused by any act, omission or
negligence of Tenant, or Tenant's employees, agents, licensees or
invitees, or caused by Xxxxxx's default hereunder. The term "walls" as
used herein shall not include windows, glass or plate glass, doors,
special store fronts or office entries. Tenant shall immediately give
Landlord written notice of any defect or any need for repairs, after
which Landlord shall have a reasonable opportunity and time to repair
same or cure such defect. Landlord's liability with respect to any
defects, repairs or maintenance for which Landlord is responsible under
any of the provisions of this Lease shall be limited solely to the cost
of such repairs or maintenance or the curing of such defect. In no event
will Landlord be responsible for paying incidental or consequential
damages resulting from Xxxxxxxx's failure to cure such defects.
7. MONTHLY COMMON AREA MAINTENANCE CHARGE. Tenant agrees to pay, as an
additional charge each month, its proportionate share of the cost of the
operation, maintenance, improvement, repair and replacement of the
"Common Area", which shall be defined from time to time by Landlord. The
term Common Area may include any property not owned by Landlord which is
located beyond the boundaries of the Project to the extent
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Landlord is obliged to pay certain costs of operation and maintenance or
to contribute to the cost of operation and maintenance. Common Area
costs which may be incurred by Landlord at its discretion, may include,
but shall not be limited to those costs incurred for lighting, water,
sewage, trash removal, exterior painting, exterior window cleaning,
sweeping, management, accounting, policing, inspecting, sewer lines,
plumbing, paving, landscape maintenance, plant material replacement and
other like charges, and Landlord's fee for supervision and
administration of the items set forth in this Paragraph, currently at
10%. The proportionate share to be paid by Tenant of the cost of
operation, maintenance, improvement, repair and replacement of the
Common Area shall be computed on the ratio that the gross leasable
square footage of the Premises bears to the total applicable gross
leasable square footage or such other equitable apportionment as
Landlord may adopt. Landlord shall make monthly or other periodic
charges based upon the estimated annual cost of operation and
maintenance of the Common Area, payable in advance but subject to
adjustment after the end of the year on the basis of the actual cost for
such year. Any such periodic charges shall be due and payable upon
delivery of notice thereof. The initial Common Area Maintenance Charge,
subject to adjustment as provided herein, shall be due and payable, as
additional rent, at the same time and in the same manner as the time and
manner of the payment of Monthly Base Rent as provided herein. The
amount of the initial monthly Common Area Maintenance Charge shall be as
specified in the Basic Lease Information.
8. ALTERATIONS. Tenant shall not make any alterations, additions or
improvements to the Premises (including, but not limited to, roof and
wall penetrations or alterations, additions or improvements affecting
building, mechanical or electrical systems or equipment) without the
prior written consent of Landlord, which consent may be withheld in its
sole discretion or may be conditioned on, among other things, proof of
insurance coverage, payment and performance bonds, in forms, amounts
and by companies acceptable to Landlord, and Xxxxxxxx's review of
Tenant's plans and specifications, Xxxxxx's contractor and Xxxxxx's
building permit. Tenant may, without the consent of Landlord, but at its
own cost and expense and in a good workmanlike manner erect such
shelves, bins, machinery and trade fixtures as it may deem advisable,
without altering the basic character of the building or improvements and
without overloading or damaging such building or improvements, and in
each case complying with all applicable governmental laws, ordinances,
regulations and other requirements. All alterations, additions,
improvements and partitions erected by Tenant shall be and remain the
property of Tenant during the Term of this Lease and Tenant shall,
unless Landlord otherwise elects as hereinafter provided, remove all
alterations, additions, improvements and partitions erected by Tenant
and restore the Premises to their original condition by the date of
termination of this Lease or upon earlier vacating of the Premises;
provided, however, that if Landlord so elects prior to termination of this
Lease or upon earlier vacating of the Premises, such alterations,
additions, improvements and partitions shall become the property of
Landlord as of the date of termination of this Lease or upon earlier
vacating of the Premises and shall be delivered up to the Landlord with
the Premises. All shelves, bins, machinery and trade fixtures installed by
Tenant may be removed by Tenant prior to the termination of this Lease if
Tenant so elects, and shall be removed by the date of termination of this
Lease or upon earlier vacating of the Premises if required by Landlord;
upon any such removal Tenant shall restore the Premises to their original
condition. All such removals and restoration shall be accomplished in good
workmanlike manner so as not to damage the buildings and other
improvements situated on the Premises. Landlord shall have the right at
any time and from time to time to make changes or alterations to any
portion of the Project other than the Premises and Landlord shall not be
subject to any liability with respect to such alterations.
9. SIGNS. Tenant shall not install signs upon the Premises without
Landlord's prior written approval, and any such signage shall be subject
to any applicable governmental laws, ordinances, regulations and other
requirements. Tenant shall remove all such signs by the expiration or
sooner termination of this Lease. Such installations and removals shall
be made in such a manner as to avoid injury or defacement of the
building and other improvements, and Tenant shall repair any injury or
defacement, including, without limitation, discoloration, caused by such
installation and/or removal.
10. INSPECTION/SURRENDER OF POSSESSION.
X. Xxxxxxxx and Xxxxxxxx's agents and representatives shall have the
right to enter and inspect the Premises at any reasonable time during
business hours, for the purpose of ascertaining the condition of the
Premises or in order to make such repairs as may be required or permitted
to be made by Landlord under the terms of this Lease or for any other
lawful purpose. During the period that is six (6) months prior to the end
of the Term hereof,
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Landlord and Landlord's agents and representatives shall have the right
to enter the Premises at any reasonable time during business hours for
the purpose of showing the Premises and shall have the right to erect on
the Premises a suitable sign indicating the Premises are available.
B. Tenant shall, at the expiration or earlier termination of this
Lease, surrender and deliver the Premises to Landlord in as good
condition as when received by Tenant from Landlord or as later improved,
reasonable use and wear excepted.
X. Xxxxxx shall give written notice to Landlord at least thirty (30)
days prior to vacating the Premises and shall arrange to meet with
Landlord for a joint inspection of the Premises prior to vacating. In
the event of Tenants's failure to give such notice or arrange such joint
inspection, Landlord's inspection at or after Xxxxxx's vacating the
Premises shall be conclusively deemed correct for purposes of
determining Tenant's responsibility for restoring the Premises to the
condition required hereunder.
11. UTILITIES. Landlord agrees to provide at its cost water, electricity
and gas service connections into the Premises; but Tenant shall pay for
all water, gas, heat, light, power, telephone, sewer, sprinkler charges
and other utilities and services used on or from the Premises, together
with any taxes, penalties, surcharges or the like pertaining thereto and
any maintenance charges for utilities and shall furnish all electric
light bulbs and tubes. If any such services are not separately metered
to Tenant, Tenant shall pay a reasonable proportion as determinded by
Landlord of all charges jointly metered with other Premises. Landlord
shall not be liable for any loss, injury, damage to property, or other
consequences caused by or resulting from any variation, interruption, or
failure of utilities ore services in the Building due to any cause
whatsoever. However, in the event of such variation, interruption or
failure, Landlord shall use reasonable diligence to restore such service
to a normal operating condition. No temporary interruption, variance, or
failure of such services incident to the making or repairs, strike,
extreme weather conditions, or the conditions or events beyond
Landlord's reasonable control shall be deemed an eviction of Tenant or
relieve Tenant from any of Tenant's obligations hereunder.
12. ASSIGNMENT AND SUBLETTING.
A. Tenant shall not have the right, voluntarily or involuntarily, to
assign, convey, transfer, mortgage or sublet the whole or any part of
the Premises under this Lease without the prior written consent of
Landlord. If Tenant is a partnership, corporation or limited liability
company, the transfer, assignment, sale or other change in ownership
interest in excess of 33% (in the aggregate) shall be deemed an
assignment within the meaning of this Paragraph. In the event Tenant
applies to Landlord for consent to assign, convey, transfer or sublet
the Premises, Landlord may condition such consent on, among other
things, the right to receive one-half of the profit, if any, which
Tenant may realize on account of such assignment, conveyance, transfer
or sublease of the Premises or any other condition. For purposes of this
paragraph, "profit" shall mean any sum which the assignee, sublessee or
transferee is required to pay, or which is credited to Tenant as rent in
excess of the rents required to be paid by Tenant to Landlord under this
Lease. Landlord also reserves the right to recapture the Premises or
applicable portion thereof in lieu of responding to Tenant's transfer
request by notice of Xxxxxxxx's exercise of its recapture right given to
Tenant within twenty (20) days after receipt of Xxxxxx's written
request for assignment or subletting. Such recapture shall terminate
this Lease as to the applicable space effective on the prospective date
of assignment or subletting, which shall be the last day of a calendar
month and not earlier than sixty (60) days after receipt of Xxxxxx's
request hereunder. Nothing contained in this Lease shall prohibit
Landlord from entering into a new lease with Xxxxxx's proposed assignee
or sublessee. In the event that Landlord shall not elect to recapture
the Premises or the applicable portion thereof, Tenant shall pay
Landlord a reasonable fee, not to exceed $500.00, to reimburse Landlord
for processing costs incurred in connection with considering whether to
consent to Xxxxxx's sublease or assignment request, and shall also
reimburse Landlord for Landlord's reasonable attorneys' fees.
B. Notwithstanding any permitted assignment or subletting, Tenant shall
at all times remain directly, primarily and fully responsible and liable
for the payment of the rent and all other charges under this Lease and
for compliance with all of its other obligations under the terms,
provisions and covenants of this Lease. Upon the occurrence of an "event
of default" as hereinafter defined, if the Premises or any part thereof
are then assigned or sublet, Landlord, in addition to any other remedies
herein provided, or provided by law, may at its option collect directly
from such assignee or subtenant all rents becoming due to Tenant under
such assignment, transfer or sublease and apply such rent against any
sums due to
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Landlord from Tenant hereunder, and no such collection shall be
construed to constitute a novation or a release of Tenant from the
further performance of Tenant's obligations here under.
13. INSURANCE, FIRE AND CASUALTY DAMAGE.
A. Landlord shall maintain casualty insurance covering the building of
which the Premises are a part in an amount equal to the "replacement
cost" thereof, insuring against the perils covered by the extended
coverage policy and any other perils elected to be covered by the
Landlord. Coverages and endorsements shall be as selected by the Landlord
and such insurance shall be for the sole benefit of Landlord and all
insurance proceeds shall remain under its sole control. Such insurance
may be effectuated, in whole or in part, by a blanket policy covering
the building in which the Premises are located and other buildings. In
the event the insurance policy is subject to a deductible, Tenant shall
be liable for and shall pay all or its proportionate share, as
appropriate, of any deductible withheld from insurance proceeds or
payables under the terms of the insurance policy procured by Landlord in
the event of a claim or insured loss with respect to the building in
which the Premises are located. Landlord may, in its discretion, require
that Tenant, at its sole cost and expense, maintain on all of its
personal property, tenant improvements and alterations in, or on about
the Premises a policy of casualty insurance to the extent of the full
replacement value without any deduction for depreciation.
B. Tenant shall pay its proportionate share of Landlord's costs of
procuring and maintaining: (i) the insurance coverage described in
Subparagraph 13A, (ii) liability insurance with respect to the Project
and the operations thereon, and (iii) any other insurance coverage
procured by Landlord and pertaining or relating to the Premises in any
way. In the event any insurance coverage is on a blanket basis, the
premium shall be equitably apportioned to the buildings and improvements
located within the Project before determining Tenant's proportionate
share. During each month of the term of this Lease, Tenant shall make a
monthly escrow deposit with Landlord (the "Insurance Escrow Payment")
equal to one-twelfth of its proportionate share of Landlord's cost of
procuring and maintaining the insurance described in Subparagraphs 13A
and 13B which will be due and payable for that particular year. Tenant
authorizes Landlord to use the funds deposited by Tenant with Landlord
under this paragraph to pay the cost of such insurance. Each Insurance
Escrow Payment shall be due and payable, as additional rent, at the same
time and manner of the payment of the Monthly Base Rent as provided
herein. The initial monthly Insurance Escrow Payment is subject to
increase or decrease as determined by Landlord to reflect an accurate
monthly escrow of Tenant's estimated proportionate share of this
insurance. The Insurance Escrow Payment account of Tenant shall be
reconciled annually. If the Tenant's total Insurance Escrow Payments are
less than Tenant's actual proportionate responsibility for such
insurance, Tenant shall pay to Landlord upon demand the difference; if the
total Insurance Escrow Payments of Tenant are more than Tenant's actual
proportionate responsibility for such insurance, Landlord shall retain
such excess and credit it to the next monthly payment payable by Tenant
or if this Lease has expired, refund such excess to Tenant. Tenant's
cost of insurance shall be computed by multiplying the cost of Insurance
by a fraction, the numerator of which shall be the number of gross
leasable square feet of floor space in the Premises and the denominator
of which shall be the total applicable gross leasable square footage.
The amount of the initial monthly Insurance Escrow Payment will be as
specified in the Basic Lease Information.
C. Tenant shall, throughout the Lease Term, at its own expense, procure
and maintain in full force and effect: (a) A policy of comprehensive
general liability insurance, including a contractual liability
endorsement covering Tenant's obligations under the paragraph captioned
"Indemnification", insuring against claims of bodily injury and death
or property damage or loss with a combined single limit at the
Commencement Date of this Lease of not less than Three Million Dollars
($3,000,000.00), which limit shall be reasonably increased during the
Lease Term at Landlord's request to reflect both increases in liability
exposure arising from inflation as well as from changing use of the
Premises or changing legal liability standards, which policy shall be
payable on an "occurrence" rather than a "claim made" basis, and which
policy names Landlord and manager and, at Landlord's request Landlord's
mortgage lender(s) or investment advisors, as additional insureds;
(b) A policy of extended property insurance (which is commonly called
"at risk") covering Tenant Improvements, Tenant Alterations, and any
and all furniture, fixtures, equipment, inventory, improvements and
other property in or about the Premises which is not owned by Landlord,
for one hundred percent (100%) of the then current replacement value of
such property; and (c) Business interruption insurance in an amount
sufficient to cover costs, damages, lost income, expenses, Base Rent,
additional
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rent and all other sums payable under this Lease, should any or all of
the Premises not be usable for a period of up to twelve (12) months. All
insurance policies required under this paragraph shall be with companies
reasonably approved by Landlord authorized to do business in the State
of Oregon and each policy shall provide that it is not subject to
cancellation or reduction in coverage except after thirty (30) days'
written notice to Landlord. Tenant shall deliver to Landlord and, at
Xxxxxxxx's request Xxxxxxxx's mortgage lender(s), prior to the
Commencement Date and from time to time thereafter, certificates
evidencing the existence and amounts of all such policies. If Tenant fails
to acquire or maintain any insurance or provide any certificate required
by this paragraph, Landlord may, but shall not be required to, obtain such
insurance or certificates and the costs associated with obtaining such
insurance or certificates shall be payable by Tenant to Landlord on
demand. Such policies shall be primary insurance (and not "excess over"
or contributory with any other valid, existing and applicable insurance
in force for or on behalf of Landlord) and such policies shall not
eliminate cross-liability and shall contain a severability of interest
clause. Certified copies of such policies, together with receipt
evidencing payment of premiums therefor, shall be delivered to Landlord
prior to the commencement date of this Lease. Not less than fifteen (15)
days prior to the expiration date of any such policies, certified copies
of the renewals thereof (bearing notations evidencing the payment of
renewal premiums) shall be delivered to Landlord.
D. If the building of which the Premises are a part should be damaged
or destroyed by fire, tornado or other casualty, Tenant shall give
immediate written notice thereof to Landlord.
E. If the building of which the Premises are a part should be totally
destroyed by fire, tornado or other casualty, or if it should be so
damaged thereby that rebuilding or repairs cannot in Landlord's
estimation be completed within two hundred (200) days after the date
upon which Landlord is notified by Tenant of such damage, this Lease
shall, at the option of Landlord, terminate and the rent shall be abated
during the unexpired portion of this Lease, effective upon the date of
the occurrence of such damage. Landlord shall give notice to Tenant in
writing of its determination to terminate this Lease within ninety (90)
days following the date of the occurrence of such damage.
F. If the building of which the Premises are a part should be damaged
only to such extent that rebuilding or repairs can in Landlord's
estimation be completed within two hundred (200) days after the date
upon which Landlord is notified by tenant of such damage, this Lease
shall not terminate, and Landlord shall at its sole cost and expense
(but only to the extent of insurance proceeds received by Landlord)
thereupon proceed with reasonable diligence to rebuild and repair such
building to substantially the condition in which it existed prior to
such damage, except that Landlord shall not be required to rebuild,
repair or replace any part of the partition, fixtures, additions, and
other improvements which may have been placed in, or about the Premises
by Xxxxxx. If the Premises are untenantable in whole or in part
following such damage, the rent payable hereunder during the period in
which they are untenantable shall be reduced to such extent the Premises
are unusable.
G. Notwithstanding anything herein to the contrary, in the event the
holder of any indebtedness secured by a mortgage or deed of trust
covering the Premises requires that the insurance proceeds be applied to
such indebtedness, the Landlord shall have the right to terminate this
Lease by delivering written notice of termination to Tenant within
fifteen (15) days after such requirement is made by any such holder,
whereupon all rights and obligations hereunder shall cease and
terminate, except that Tenant shall remain liable to Landlord for the
payment of any rents or other charges already accrued.
H. Each of Landlord and Tenant hereby releases the other from any loss
or damage to property caused by fire or any other perils insured through
or under them by way of subrogation or otherwise for any loss or damage
to property caused by fire or any other perils insured in policies of
insurance covering such property, even if such loss or damage shall have
been caused by the fault or negligence of the other party, or anyone for
whom such party may be responsible; provided, however, that this release
shall be applicable and in force and effect only with respect to loss or
damage occurring during such times as the releaser's policies shall
contain a clause or endorsement to the effect that any such release
shall not adversely affect or impair said policies or prejudice the
right of the releaser to recover there under and then only to the extent
of the insurance proceeds payable under such policies. Each of the
Landlord and Xxxxxx agrees that it will request its insurance carriers
to include in its policies such a clause or endorsement. If extra cost
shall be charged therefor, each party shall advise the other thereof and
of the amount of the extra cost, and the other party, at its election,
may pay the same, but shall not be obligated to do so.
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14. LIABILITY. Landlord shall not be liable to Tenant or Tenant's
employees, agents, servants, guests, invitees, incensees, or
visitors, or to any other person whomsoever, for any injury to person or
damage to property on or about the Premises, resulting from and/or
caused in part or whole by the act, omission, negligence or misconduct
of Tenant, its employees, agents, servants, guests, invitees, licenses,
or visitors, or of any other person entering upon the Premises, or
caused by the building and improvements located on the premises becoming
out of repair, or caused by leakage of gas, oil, water or steam or by
electricity emanating from the Premises, or due to any cause whatsoever,
and Tenant hereby covenants and agrees that it will at all times
indemnify, protect, defend and hold safe and harmless the property, the
Landlord (including, without limitation, the trustee and beneficiaries
if Landlord is a trust), Landlord's employees, agents, servants, guests,
invitees, licensees and visitors (collectively, the "indemnified
parties") from any loss, liability, claims, suits, costs, expenses,
including, without limitation, attorneys' fees, and damages, both real
and alleged, arising out of: (a) the use or occupancy of the Premises,
(b) any failure of Tenant to comply with the terms of this Lease, and
(c) the acts of omissions or Tenant and its employees, agents, servants,
guests, invitees, licensees and visitors; except injury to person or
damage to property the sale cause of which is the gross negligence of
Landlord. In no event shall the Indemnified Parties be liable for
consequential damages. If and to the extent that Tenant is obligated to
indemnify, defend or hold harmless Landlord and Landlord's agents from any
claims arising from its use of the Premises or any act or failure to act
by Tenant or Tenant's Agents or otherwise, Tenant expressly waives, to and
in favor of Landlord and Landlord's agents, its statutory
workers compensation act employers immunity relative to any injury to an
employee or employees of Tenant.
15. CONDEMNATION.
A. If the whole or any substantial part of the Premises should be taken
for any public or quasi-public use under governmental law, ordinance or
regulation, or by right of eminent domain, or by private purchase in
lieu thereof and the taking would prevent or materially interfere with
the use of the Premises for the purpose for which they are being used as
determined by Landlord, this Lease shall terminate and the rent shall be
abated during the unexpired portion of this Lease, effective when the
physical taking of said Premises shall occur.
B. If part of the premises shall be taken for any public or
quasi-public use under any governmental law, ordinance or regulation, or
by right of eminent domain, or by private purchase in lieu thereof, and
this Lease is not terminated as provided in Subparagraph 15(A), this
Lease shall not terminate but the rent payable hereunder during the
unexpired portion of this Lease shall be reduced to such extent as the
premises are not useable.
C. In the event of any such taking or private purchase in lieu thereof,
Landlord shall be entitled to receive the entire award, Tenant shall be
entitled to make a claim for a separate award for Tenant's relocation
expenses in any condemnation proceedings so long as Xxxxxx's claim does
not reduce the amount of Landlord's award.
16. HOLDING OVER. Tenant will, at the termination of this Lease by lapse of
time of otherwise, yield up immediate possession to Landlord. If
Landlord agrees in writing that Tenant may hold over after the
expiration or termination of this Lease, unless the parties hereto
otherwise agree in writing on the terms of such holding over, the hold
over tenancy shall be subject to termination by Landlord at any time
upon not less than five (5) days advance written notice, or by Tenant at
any time upon not less than thirty (30) days advance written notice, and
all of the other terms and provisions of this Lease shall be applicable
during that period, except that Tenant shall pay Landlord from time to
time upon demand, as rental for the period of any hold over, an amount
equal to one and one-half (1-1/2) the Monthly Base Rent in effect on the
termination date, plus all additional rental as defined herein, computed
on a daily basis for each day of the hold over period. No holding over
by Tenant, whether with or without consent of Landlord, shall operate to
extend this Lease except as otherwise expressly provided. The preceding
provision of this Paragraph 16 shall not be construed as Landlord's
consent for Tenant to hold over.
17. QUIET ENJOYMENT. In the event this Lease is a sublease, then Xxxxxx
agrees to take the Premises subject to the provisions of the prior
leases. Landlord covenants that Tenant, upon paying the rental herein
set forth and performing its other covenants and agreements herein set
forth, shall peaceably and quietly have, hold and enjoy the Premises for
the term hereof without hindrance from Landlord, subject to the terms
and provisions of this Lease.
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18. EVENTS OF DEFAULT. The following events shall be deemed to be events of
default by Tenant under this Lease:
A. Tenant shall fail to pay any installment of the rent herein reserved
when due, or any payment with respect to taxes hereunder when due, or
any other payment or reimbursement to Landlord required herein when due,
and such failure shall continue for a period of five (5) days from the
date such payment was due.
B. Insolvency of Tenant; an assignment by Tenant for the benefit or
creditors; the filing by Tenant of a voluntary petition in bankruptcy;
an adjudication that Tenant is bankrupt or the appointment of a receiver
of the properties of Tenant; the filing of an involuntary petition of
bankruptcy and failure of Tenant to secure a dismissal of the petition
within thirty (30) days after filing; attachment of or the levying of
execution on the leasehold interest and failure of Tenant to secure
discharge of the attachment or release of the levy of execution within
ten (10) days. If Tenant consists of two or more individuals or
business entities, the events of default specified in this Paragraph 18
shall apply to each individual unless within ten (10) days after the
event of default occurs, the remaining individuals produce evidence
satisfactory to Landlord that they have unconditionally acquired the
interest of the one causing the default. If this Lease has been
assigned, the events of default so specified shall apply only with
respect to the one then exercising the rights of Tenant under this Lease.
C. Tenant shall vacate or abandon any substantial portion of the
Premises. Failure of Tenant for ten (10) days or more to occupy the
Premises for one or more of the purposes permitted under this Lease,
unless such failure is excused under other provisions of this Lease,
shall be an abandonment of the property.
D. If any information furnished by or on behalf of Tenant to Landlord
in connection with the entry of this Lease is determined to have been
materially false, misleading or incomplete when made.
E. Tenant shall fail to comply with any term, provision, condition or
covenant of this Lease (other than the foregoing in this Paragraph 18),
and shall not cure such failure within twenty (20) days after written
notice thereof to Tenant. If the default is of such a nature that it
cannot be completely remedied within the 20-day period, this provision
shall be complied with if Tenant begins correction of the default
within the 20-day period and thereafter proceeds with reasonable
diligence and in good faith to effect the remedy as soon as practicable.
Landlord shall not be required to give such written notice more than
once during any single twelve (12) month period for the failure to
perform the same covenant and upon the second failure, Landlord may, at
this option, deem such failure as an automatic event of default, without
notice to Tenant.
19. REMEDIES. Upon the occurrence of any such events of default described
in Paragraph 18 hereof, Landlord shall have the option to pursue any one
or more of the following remedies without any notice or demand whatsoever.
A. Landlord may accelerate all rent payments due hereunder, the present
value of which shall then become immediately due and payable.
B. Terminate this Lease, in which event Tenant shall immediately
surrender the Premises to Landlord, and if Tenant fails so to do,
Landlord may, without prejudice to any other remedy which it may have
for possession or rearranges in rent, enter upon and take possession of
the Premises and expel or remove Tenant and any other person who may be
occupying such Premises or any part thereof, by force if necessary,
without being liable for prosecution or any claim of damages therefor,
and Tenant shall pay to Landlord on demand the amount of all-loss and
damage which Landlord may suffer by reason of such termination, whether
through inability to relet the Premises on satisfactory terms or
otherwise. Xxxxxxxx's right to any and all damages shall survive
termination of the lease.
C. Enter upon and take possession of the Premises and expel or remove
Tenant and any other person who may be occupying such Premises or any
part thereof, by force if necessary, without being liable for prosecution
or any claim for damages therefor, and relet the Premises for such terms
ending before, on or after the expiration date of the Lease Term, at such
rentals and upon such other conditions (including concessions and prior
occupancy periods) as Landlord in its sole discretion may determine, and
receive the rental therefor; and Xxxxxx agrees to pay to the Landlord on
demand any deficiency that may arise by reason of such reletting
together with all costs incurred by Landlord in connection with such
reletting. Landlord shall have no obligation to relet the Premises or
any part thereof in advance of any
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other available space controlled by Landlord and shall not be liable
refusal or failure to relet or in the event of reletting for refusal or
failure to collect any rent due upon such reletting. In the event
Landlord is successful in reletting the Premises at a rental in excess
of that agreed to be paid by Tenant pursuant to the terms of this Lease,
Landlord and Tenant each mutually agree that Tenant shall not be
entitled, under any circumstances, to such excess rental, and Tenant
does hereby specifically waive any claim to such excess rental.
D. Enter upon the Premises, by force if necessary, without being liable
for prosecution or any claim for damages therefor, and do whatever
Tenant is obligated to do under the terms of this Lease; and Xxxxxx
agrees to reimburse Landlord on demand for any expenses which Landlord
may incur in thus effecting compliance with Xxxxxx's obligations under
this Lease, and Xxxxxx further agrees that Landlord shall not be liable
for any damages resulting to the Tenant from such action, whether cause
by the negligence of Landlord or otherwise.
E. Whether or not Landlord retakes possession or relets the Premises,
Landlord shall have the right to recover unpaid rent and all damages
caused by Xxxxxx's default, including attorney's fees. Damage shall
include, without limitation: all rentals lost; all legal expenses and
other related costs incurred by Landlord following Tenant's default; all
costs incurred by Landlord in restoring the Premises for reletting; all
costs, including, without limitation, any brokerage commissions; and the
value of Landlord's time; plus interest thereon at the rate of eighteen
percent (18%) per annum from date of expenditure until fully repaid.
F. In the event Tenant fails to pay any installment of rent, additional
rent or other charges hereunder as and when such installment is due, to
help defray the additional cost to Landlord for processing such late
payments Tenant shall pay to Landlord on demand a late charge in an
amount equal to five percent (5%) of such installment. The provision
for such late charge shall be in addition to all of Landlord's other
rights and remedies hereunder or at law and shall not be construed as
liquidated damages or as limiting Landlord's remedies in any manner.
The parties agree that such late charge is a reasonable amount to defray
Landlord's costs arising out of Tenant's late payment.
G. Landlord may sue periodically to recover damages during the period
corresponding to the remainder of the Lease Term, and no action for
damages shall bar a later action for damages subsequently occurring.
H. Pursuit of any of the foregoing remedies shall not preclude pursuit
of any of the other remedies herein provided or any other remedies
provided by law, such remedies being cumulative and nonexclusive, nor
shall pursuit of any remedy herein provided constitute a forfeiture or
waiver of any rent due to Landlord hereunder or of any damages accruing
to Landlord by reason of the violation of any of the terms, provisions,
conditions, and covenants herein contained. No act or thing done by
Landlord or its agents shall be deemed a termination of this Lease or an
acceptance of the surrender of the Premises, and no agreement to
terminate this Lease or accept a surrender of the Premises shall be
valid unless in writing signed by Landlord. No waiver by Landlord of
any violation or breach of any of the terms, provisions and covenants
herein contained shall be deemed or construed to constitute a waiver of
any other violation or breach of any of the terms, provision,
conditions, and covenants herein contained. Xxxxxxxx's acceptance of
the payments of rental or other payments hereunder after the occurrence
of an event of default shall not be construed as a waiver of such
default, unless Landlord so notifies Tenant in writing. Forbearance by
Landlord to enforce one or more of the remedies herein provided upon an
event of default shall not be deemed or construed to constitute a waiver
of such default or of Landlord's right to enforce any such remedies with
respect to such default or any subsequent default.
20. ATTORNEY'S FEES. In the event it becomes necessary for either party to
enforce any rights incident to this Lease, in a court of law or equity,
the prevailing party shall be entitled to recover reasonable attorney's
fees (including those on appeal) in additional to damages or other
appropriate relief. If Landlord places any amounts owing under this
Lease in the hands of an attorney or other party for collection or
enforcement of the covenants contained herein, as a consequence of a
default, as defined herein, the party in default agrees to pay
reasonable fees and expenses so incurred, even though no suit or action
is instituted.
21. LANDLORD'S LIEN. In addition to any statutory lien for rent in
Landlord's favor, Landlord shall have and Tenant hereby grants to
Landlord a continuing security interest for all rentals and other sums
of money becoming due hereunder from Tenant, upon all goods, wares,
equipment, fixtures, furniture, inventory, accounts, contract rights,
chattel paper and other personal property of Tenant situated on the
Premises, and such property shall not be removed
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therefrom without the consent of Landlord until all arrearages in rent
as well as any and all other sums of money then due to Landlord
hereunder shall first have been paid and discharged. In the event of a
default under this Lease, Landlord shall have, in addition to any other
remedies provided herein or by law, all rights and remedies under the
Uniform Commercial Code or other applicable law, including, without
limitation, the right to sell the property described in this Paragraph
21 at public or private sale. Tenant hereby agrees to execute such
financing statements and other instruments necessary or desirable in
Landlord's discretion to perfect the security interest hereby created.
Any statutory lien for rent is not hereby waived, the express contractual
lien herein granted being in addition and supplementary thereto.
22. MORTGAGES. Tenant accepts this Lease subject and subordinate to any
mortgage(s) and/or deed(s) of trust now or at any time hereafter
constituting a lien or charge upon the Premises or the improvements
situated thereon; provided, however, that if the mortgagee, trustee, or
holder of any such mortgage or deed of trust elects to have Xxxxxx's
interest in this Lease superior to any such instrument, then by notice
to Tenant from such mortgagee, trustee or holder, this Lease shall be
deemed superior to such lien, whether this Lease was executed before or
after said mortgage or deed of trust. This provision shall be self
operative, and no further instrument of subordination shall be necessary.
In confirmation thereof, Tenant shall at any time hereafter on demand
execute any instruments, releases or other documents which may be
required by any mortgagee for the purpose of subjecting and
subordinating this Lease to the lien of any such mortgage and confirming
such other information as such mortgagee may reasonably require. Upon
written request, Tenant shall provide Landlord with financial statements
certified by Tenant as accurate and up to date, showing with reasonable
detail Tenant's financial condition.
23. BROKER'S COMMISSIONS. Except for _________________________("Tenant's
Broker"), Tenant represents and warrants that it has not engaged any
broker, agent or finder who would be entitled to any commission or fee
in connection with the negotiation and execution of this Lease. Tenant
shall indemnify, protect, defend and hold the Indemnified Parties
harmless against any and all claims for any brokerage commissions and all
costs, expenses and liabilities in connection therewith, including
attorneys' fees and expenses arising out of any charge or claim for a
commission or fee by any broker, agent or finder on the basis of any
agreements made or alleged to have been made by or on behalf of Tenant
except for Xxxxxx's Broker and any brokers with whom Xxxxxxxx has an
express written brokerage agreement.
24. CONSTRUCTION LIENS. Tenant shall have no authority, express or implied,
to create or place any lien or encumbrance of any kind or nature
whatsoever upon, or in any manner to bind, the Premises or to charge the
rentals payable hereunder for any claim in favor of any person dealing
with Xxxxxx, including those who may furnish materials or perform labor
for any construction or repairs. Tenant covenants and agrees that it
will pay or cause to by paid all sums legally due and payable by it on
account of any labor performed or materials furnished in connection with
any work performed on the Premises on which any lien is or can be
validly and legally asserted against its leasehold interest in the
Premises or the improvements thereon and that it will indemnify,
protect, defend and hold the Indemnified Parties harmless from any and
all claims, liabilities, losses, costs or expenses (including attorneys'
fees) based on or arising out of asserted claims or liens against the
right, title and interest of the Landlord in the Premises or under the
terms of this Lease.
25. NOTICES. Each provision of this instrument or of any applicable
governmental laws, ordinances, regulations and other requirements with
reference to the sending, mailing or delivery of any notice or the
making of any payment by Landlord to Tenant or with reference to the
sending, mailing or delivery of any notice or the making of any payment
by Tenant to Landlord shall be deemed to be compiled with when and if
the following steps are taken:
A. All rent and other payments required to be made by Tenant to
Landlord hereunder shall be payable to Landlord at the address herein
below set forth or at such other address as Landlord may specify from
time to time by written notice delivered in accordance herewith.
Tenant's obligation to pay rent and any other amounts to Landlord under
the terms of this Lease shall not be deemed satisfied until such rent
and other amounts have been actually received by Landlord.
B. All payments required to be made by Landlord to Tenant hereunder
shall be payable to Tenant at the address herein below set forth, or at
such other address within the continental United States as Tenant may
specify from time to time by written notice delivered in accordance
herewith.
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C. Any notice or document required or permitted to be delivered
hereunder shall be deemed to be delivered whether actually received or
not when deposited in the United States Mail, postage prepaid, Certified
or Registered Mail, addressed to the parties hereto at the respective
addresses set out below, or at such other address as they have
theretofore specified by written notice delivered in accordance herewith:
LANDLORD: TENANT:
XXXXX & COMPANY, a division of Advanced Materials, Inc.
XXXXX BANK N.A., as trustee of 9400 S.W. Tualatin Sherwood Road
the Multi-Employer Property Trust Tualatin, Oregon 97062
c/o Xxxxxxxx Xxxx Company
0000 XX Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxx 00000-0000
If and when included within the term "Landlord", as used in this
instrument, there are more than one person, firm or corporation, all
shall jointly arrange among themselves for their joint execution of such
a notice specifying some individual at a specific address for the
receipt of notices and payments to Landlord. If and when included within
the term "Tenant", as used in this instrument, there are more than one
person, firm or corporation, all shall jointly arrange among themselves
for their joint execution of such a notice specifying some individual at
a specific address within the continental United States for the receipt of
notices and payments to Tenants. All parties included within the terms
"Landlord" and "Tenant", respectively, shall be bound by notices given in
accordance with the provisions of this paragraph to the same effect as if
each had received such notice.
26. MISCELLANEOUS.
A. Words of any gender used in this Lease shall be held and construed to
include any other gender, and words in the singular number shall be held
to include the plural, unless the context otherwise requires.
B. The terms, provisions and covenants and conditions contained in this
Lease shall apply to, inure to the benefit of, and be binding upon,
the parties hereto and upon their respective heirs, legal
representatives, successors and permitted assigns, except as otherwise
herein expressly provided. Landlord shall have the right to assign any
of its rights and obligations under this Lease.
X. Each party agrees to furnish to the other, promptly upon demand, a
corporate resolution, proof of due authorization by partners, or other
appropriate documentation evidencing the due authorization of such
party to enter into this Lease. If Tenant is a partnership, company,
corporation or other entity, each individual executing this Lease on
behalf of Tenant represents and warrants to Landlord that he or she is
duly authorized to so execute and deliver this Lease and that all
partnership, company, corporation or other entity actions and consents
required for execution of this Lease have been given, granted or
obtained.
D. The captions inserted in this Lease are for convenience only and in
no way define, limit or otherwise describe the scope or intent of this
Lease, or any provision hereof, or in any way affect the interpretation
of this Lease.
X. Xxxxxx agrees from time to time within ten (10) days after request
of Landlord, to deliver to Landlord, or Landlord's designee, an estoppel
certificate stating that this Lease is in full force and effect, the
date to which rent has been paid, the unexpired term of this Lease and
such other matters pertaining to this Lease as may be requested by
Landlord, Landlord's lender, a prospective lender or a prospective
purchaser. It is understood and agreed that Xxxxxx's obligation to
furnish such estoppel certificates in a timely fashion is a material
inducement for Landlord's execution of this Lease. If Tenant fails to
respond within ten (10) business days of its receipt of a written request
by Landlord as provided in this paragraph, such shall be a breach of
this Lease and Tenant shall be deemed to have admitted the accuracy of
any information supplied by Landlord to a prospective purchaser,
mortgagee or assignee. The estoppel certificate Tenant shall be required
to execute may be in, but is not limited to, the form attached hereto as
Exhibit D.
(a) the date this Lease was executed and the date it expires; (b) the
date Tenant entered into occupancy of the Premises; (c) the amount of
monthly Base Rent and Additional Rent and the date to which such Base
Rent and Additional Rent have been paid; and (d) certifying that (1)
14
this Lease is in full force and effect and has not been assigned,
modified, supplemented or amended in any way (or specifying the date of
the agreement so affecting this Lease); (2) Landlord is not in breach of
this Lease (or, if so, a description of each such breach) and that in no
event, omission or condition has occurred which would result, with the
giving of notice or the passage of time, in a breach of this Lease by
Landlord; (3) this Lease represents the entire agreement between the
parties with respect to the Premises; (4) all required contributions by
Landlord to Tenant on account of Tenant Improvements have been
received;(5) on the date of execution, there exist no defenses or
offsets which the Tenant has against the enforcement of this Lease by
the Landlord; (6) no Base Rent, Additional Rent or other sums payable
under this Lease have been paid in advance except for Base Rent and
Additional Rent for the then current month; (7) no security has been
deposited with Landlord (or, if so, the amount of such security); (8) it
is intended that any Tenant's statement may be relied upon by
a prospective purchaser or mortgagee of Landlord's interest or an
assignee of any such mortgagee; (9) the representations in the paragraph
captioned "ERISA REPRESENTATIONS" remain true and correct; and (10) such
other information as may be reasonably requested by Landlord.
F. This Lease may not be altered, changed, modified or amended except
by an instrument in writing signed by both parties hereto.
Notwithstanding anything contained in the Lease to the contrary, including
without limitation, Landlord's agents, only officers of Xxxxx Bank N.A.,
are authorized to amend, renew or terminate this Lease, or to compromise
any of Landlord's claims under this Lease or to bind Landlord in any
manner. Without limiting the effect of the previous sentence, no
property manager or broker shall be considered an authorized agent of
Landlord to amend, renew or terminate this Lease or to compromise any of
Landlord's claims under this Lease or to bind Landlord in any manner.
G. All indemnity obligations and all other obligations of Tenant
hereunder not fully performed as of the expiration or earlier
termination of the term of this Lease shall survive the expiration or
earlier termination of the Term hereof, including, without limitation, all
payment obligations with respect to taxes and insurance and all
obligations concerning the condition of the Premises. Upon the
expiration or earlier termination of the Term hereof, and prior to
Tenant vacating the Premises, Tenant shall pay to Landlord any amount
reasonably estimated by Landlord as necessary to put the Premises,
including, without limitation, all heating and air conditioning systems
and equipment therein, in good condition and repair pursuant to
Paragraph 10(B) hereof. Tenant shall also, prior to vacating the
Premises, pay to Landlord the amount, as estimated by Landlord, of
Xxxxxx's obligation hereunder for real estate taxes and insurance
premiums for the year in which the Lease expires or terminates. All such
amounts shall be used and held by Landlord for payment of such
obligations of Tenant hereunder, with Xxxxxx being liable for any
additional costs therefor upon demand by Landlord, or with any excess
to be returned to Tenant after all such obligations have been determined
and satisfied, as the case may be. Any security deposit held by Landlord
shall be credited against the amount payable by Tenant under this
Paragraph 26(G).
H. If any clause or provision of this Lease is illegal, invalid or
unenforceable under present or future laws effective during the Term of
this Lease, then and in that event, it is the intention of the parties
hereto that the remainder of this Lease shall not be affected thereby,
and it is also the intention of the parties to this Lease that in lieu of
each clause or provision of this Lease that is illegal, invalid or
unenforceable, there be added as part of this Lease contract a clause or
provision as similar in terms to such illegal, invalid or unenforceable
clause or provision as may be possible and be legal, valid and enforceable.
I. Because the Premises are on the open market and are presently being
shown, this Lease shall be treated as an offer with the Premises being
subject to prior lease and such offer subject to withdrawal or
non-acceptance by Landlord or to other use of the Premises without
notice, and this Lease shall not be valid or binding unless and until
accepted by Landlord in writing and a fully executed copy delivered to
both parties hereto.
J. All references in this Lease to "the date hereof" or similar
references shall be deemed to refer to the last date, in point of time,
on which all parties hereto have executed this Lease.
X. Xxxxxx represents to Landlord that with the exception of this Lease,
neither the Tenant nor any affiliate of the Tenant is a tenant under a
lease or any other tenancy arrangement (1) with (a) Xxxxx & Company, a
division of Xxxxx Bank N.A., as trustee of the Multi-Employer Property
Trust; (b) The Xxxxx Bank N.A., as trustee of the Multi-Employer
Property Trust; (c) the Multi-Employer Property Trust; (d) the National
Bank of Washington Multi-Employer Property Trust, the previous name of
the Multi-Employer Property Trust; (e) The Xxxxx National Bank of
Washington, D.C., as trustee of the Multi-Employer Property Trust; (f)
15
Alameda Industrial Properties Joint Venture; (g) Xxxxxx International
Business Campus Joint Venture; (h) Beaverton-Xxxxxxx Tech Properties;
(i) Corporate Drive Corporation as trustee of the Corporate Drive
Nominee Realty Trust; (j) Goldbelt Place Joint Venture; (k) BOCA 1515, a
joint venture; (l) Arboretum Lakes-I, L.L.C., a Delaware limited
liability company; (m) Village Green of Rochester Hills Associates,
L.L.C.; (n) Pine Street Development, L.L.C.; or (o) MEPT Realty LLC; or
(2) involving any property in which any one or more of the entities
named in clauses (1)(a) through (d) are known by the Tenant to have an
ownership interest.
L. Tenant shall not, and shall not cause or allow any other party to,
construct, use, deposit, store, dispose, place, or locate on or about
the Premises or the Project any hazardous substances (as later defined)
without the prior written consent of Landlord, which shall not be
unreasonably withheld as long as Tenant demonstrates to Landlord's
reasonable satisfaction that: (a) the nature and quality of any
hazardous material is necessary, useful, and appropriate to Tenant's
business conducted at the Premises; (b) the hazardous material will be
used, kept, and stored with the highest degree of care and in a manner
that complies with all governmental laws, ordinances, regulations,
orders, and policies regulating any such hazardous material so brought
upon or used or kept in or about the Premises; (c) such hazardous
substances are disposed of off the Premises and the Project, in a
disposal site licensed or designated for such hazardous substances, with
the utmost care and caution and in a manner consistent with applicable
governmental laws, ordinances, regulations, orders and policies; (d)
Tenant pays as additional rent any increase in the premiums charged
Landlord for insurance coverage by reason of Tenant's storage,
placement, location, or use of hazardous substances or any premiums for
additional insurance coverages deemed appropriate by Landlord because of
the presence of such hazardous substances; and (e) Tenant procures any
insurance coverages demanded by Landlord and naming the Landlord and
such other parties as Landlord requires as additional insureds.
Tenant shall indemnify, defend, and hold the Indemnified Parties
harmless from any and all claims, judgments, damages, penalties, fines,
costs, liabilities, or losses (including, without limitation, diminution
in value of the Premises, damages for the loss or restriction on use of
rentable or usable space or of any amenity of the Premises, damages
arising from any adverse impact on marketing of space, and sums paid in
settlement of claims, attorneys' fees, consultant fees, and expert fees)
which arise during or after the Lease Term as a result of contamination
to the Premises by hazardous substance during the term of this Lease or
to the Property as a result of an act or omission of Tenant, and
Xxxxxx's agents or employees. 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 governmental
agency or political subdivision because of hazardous substances present
in the soil or ground water on or under the Premises. Without limiting
the foregoing, if the presence of any hazardous substances on the
Premises occurs during the term of this Lease, Tenant shall promptly
take all actions at its sole expense as are necessary to return the
Premises to the condition existing prior to the release of any such
hazardous substances to the Premises, provided that Landlord's approval
of such actions shall first be obtained, which approval shall not be
unreasonably withheld so long as such actions would not potentially have
any material adverse long-term or short-term effect on the Premises. The
foregoing indemnity shall survive the expiration or earlier termination
of this Lease.
The term "hazardous substances" shall include (a) any chemical,
material, element, compound, solution, mixture, substance, or other
matter of any kind whatsoever which is a hazardous substance as defined
in, or related by the Federal Comprehensive Environmental Response
Compensation and Liability Act, 42 USC Section 9601 et seq., as amended;
the regulations promulgated from time to time thereunder; the wastes
listed in the United States Department of Transportation Hazardous
Materials Table (49 CFR 172.101); the United States Environmental
Protection Agency Hazardous Substances (40 CFR Part 302), and amendments
thereto; environmental laws and regulations administered by the
Environmental Protection Agency or its delegees, similar laws and
regulations of the State of Oregon, City of Tualatin, or any state or
local governmental organization or agency, or additional or substitute
laws or regulations with respect to the same subject matter enacted or
promulgated by the federal, state, local, or quasi-governmental
organization or agency; and (b) asbestos or materials containing
asbestos, petroleum products, or such other substances, materials, and
wastes that are or become regulated under the applicable local, state,
or federal laws, whether or not within clause (a). The above
notwithstanding, Tenant shall not be liable for hazardous substances
contamination of the Premises occuring prior to the Commencement Date of
the Lease. The Landlord represents and warrants to its actual knowledge
that the Premises are not contaminated by any hazardous substances as of
the Commencement Date.
M. This Lease shall be governed by and construed in accordance with the
laws of the State of Oregon.
16
N. For any litigation, action or dispute arising out of or in
connection with the agreement, the matter shall be tried and determined
by a judge alone, WITHOUT A JURY. All parties shall submit to the
jurisdiction of an appropriate court in the State of Oregon, with venue
in the County of Washington. Tenant irrevocably consents to the service
of process of any action or proceeding at the address of the Premises.
O. If Tenant fails to perform any obligation under this Lease, Landlord
shall have the option to do so after thirty (30) days written notice to
Tenant. All of Landlord's expenditures to correct the default shall be
reimbursed by Xxxxxx on demand with interest at a rate of one and
one-half percent (1-1/2%) per month from the date of expenditure by
Landlord.
P. If Tenant shall request Xxxxxxxx's consent under this Lease and
Landlord shall fail or refuse to give such consent, Tenant shall not be
entitled to any damages for any withholding by Landlord of its consent.
Tenant's sole remedy shall be an action for specific performance or
injunction and that remedy shall be available only in those instances
where Landlord has expressly agreed in writing not to unreasonably
withhold Landlord's consent.
Q. This Lease shall not be recorded without the consent in writing of
Landlord. If Landlord consents, Xxxxxxxx shall execute and acknowledge a
memorandum of this Lease in a form suitable for recording, and Xxxxxx
may record the memorandum.
R. This Lease contains the entire agreement between the parties
concerning the subject matter and supersedes any prior agreements or
understandings related thereto. There are merged herein all prior and
collateral representations, promises, and conditions in connection with
the subject matter hereof. This Lease supersedes and is in lieu of all
existing agreements or arrangements between the parties relating to the
Premises identified herein.
S. No payment by Tenant or receipt by Landlord of an amount less than
the Base Rent or additional rent or any other sum due and payable under
this Lease shall be deemed to be other than a payment on account of the
Base Rent, additional rent or other such sum, nor shall any endorsement
or statement on any check or any letter accompanying any check or
payment be deemed an accord and satisfaction, nor preclude Landlord's
right to recover the balance of any amount payable or Landlord's right
to pursue any other remedy provided in this Lease or at law.
T. The waiver by Landlord of any covenant or condition contained in
this Lease shall not be deemed to be a waiver of any subsequent breach
of such covenant or condition nor shall any custom or practice which may
develop between the parties in the administration of this Lease be
construed to waive or lessen the rights of Landlord to insist on the
strict performance by Tenant of all of the covenants and conditions of
this Lease. No act or thing done by Landlord or Landlord's Agents during
the Lease Term shall be deemed an acceptance or a surrender of the
Premises, and no agreement to accept a surrender of the Premises shall
be valid unless made in writing and signed by Landlord. The mention in
this Lease of any particular remedy shall not preclude Landlord from any
other remedy it might have, either under this Lease or at law, nor shall
the waiver of or redress for any violation of any covenant or condition
in this Lease or in any of the rules or regulations attached to this
Lease or later adopted by Landlord, prevent a subsequent act, which
would have originally constituted a violation, from having all the force
and effect of an original violation. The receipt by Landlord of Base
Rent, additional rent or any other sum payable under this Lease with
knowledge of a breach of any covenant or condition in this Lease shall
not be deemed a waiver of such breach. The failure of Landlord to
enforce any of the rules and regulations attached to this Lease or later
adopted, against Tenant or any other tenant in the Building, shall not
be deemed a waiver. Any waiver by Landlord must be in writing and signed
by Landlord to be effective.
U. In the event that Landlord shall be delayed, hindered in or
prevented from the performance of any act or obligation required under
this Lease by reason of acts of God, strikes, lockouts, labor troubles
or disputes, inability to procure or shortage of materials or labor,
failure of power or utilities, delay in transportation, fire, vandalism,
accident, flood, severe weather, other casualty, governmental
requirements (including mandated changes in the Plans and Specifications
or the Tenant Improvements resulting from changes in pertinent
governmental requirements or interpretations thereof), riot,
insurrection, civil commotion, sabotage, explosion, war, natural or
local emergency, acts or omissions of others, including Tenant, or other
reasons of a similar or dissimilar nature not solely the fault of, or
under the exclusive control of, Landlord, then performance of such act
or obligation shall be excused for the period of the delay
17
and the period for the performance of any such act or obligation shall
be extended for the period equivalent to the period of such delay.
V. Time is of the essence with respect to the performance of every
covenant and condition of this Lease.
27. LIABILITY OF LANDLORD. Xxxxxxxx has executed this Lease by its trustee
signing solely in a representative capacity. Notwithstanding anything
contained in this Lease to the contrary, Xxxxxx confirms that the
covenants of Landlord are made and intended, not as personal covenants
of the trustee, or for the purpose of binding the trustee personally,
but solely in the exercise of the representative powers conferred upon
the trustee by its principal. Liability with respect to the entry and
performance of this Lease by or on behalf of Landlord, however it may
arise, shall be asserted and enforced only against the Landlord's estate
and interest in the Building and Landlord shall have no personal
liability in the event of any claim against Landlord arising out of or
in connection with this Lease, the relationship of Landlord and Tenant
or Xxxxxx's use of the Premises. Further, in no event whatsoever shall
any Landlord's Agent have any liability or responsibility whatsoever
arising out of or in connection with this Lease, the relationship of
Landlord and Tenant or Tenant's use of the Premises. Any and all
personal liability, if any, beyond that which may be asserted under this
paragraph, is expressly waived and released by Tenant and by all persons
claiming by, through or under Tenant.
28. ACCESS LAWS.
A. As used in this Paragraph, the term "Access Laws" shall mean the
Americans with Disabilities Act of 1990 (including the Americans with
Disabilities Act Accessibility Guidelines for Buildings and Facilities),
the Fair Housing Amendments Act of 1988, all state and local laws or
ordinances related to handicapped access, or any statute, rule,
regulation, ordinance, order of governmental bodies or regulatory
agencies, or order or decree of any court adopted or enacted with
respect to any of the foregoing. The term Access Laws shall include all
Access Laws now in existence or hereafter enacted, adopted or applicable.
B. Landlord makes no representations regarding the compliance of the
Premises or the Project with Access Laws; provided that, if any
improvements or alterations constructed by Landlord do not comply with
Access Laws, Landlord shall be responsible for correcting such defects
if and to the extent required by law.
X. Xxxxxx agrees to notify Landlord immediately if Xxxxxx becomes aware
of: (i) any condition or situation in or on the Premises which would
constitute a violation of any Access Laws, or (ii) any threatened or
actual lien, action or notice of the Premises not being in compliance
with any Access Laws. Tenant shall inform Landlord of the nature of any
such condition, situation, lien, action or notice and of the action
Tenant proposes to take in response thereto.
D. Tenant shall not alter or permit any assignee or subtenant or any
other person to alter the Premises in any manner which would violate any
Access Laws or increase Landlord's responsibilities for compliance with
Access Laws, without the prior approval of the Landlord. In connection
with any such approval, Landlord may require a certificate of compliance
with Access Laws from an architect, engineer or other person acceptable
to Landlord. Xxxxxx agrees to pay the reasonable fees incurred by such
architect, engineer or other third party in connection with the issuance
of such certificate of compliance. Xxxxxxxx's consent to any proposed
Tenant alteration shall (a) not relieve Tenant of its obligations or
indemnities contained in this paragraph or this Lease or (b) be
construed as a warranty that such proposed alternation complies with any
Access Law.
E. Tenant shall be solely responsible for all costs and expenses
relating to or incurred in connection with bringing the Premises, the
building in which the Premises are located and the common areas of the
Project into compliance with the Access Laws if and to the extent such
costs and expenses arise out of or relate to Xxxxxx's use of the
Premises or Tenant's modifications, improvements or alterations to the
Premises after the date of this Lease.
X. Xxxxxx agrees to indemnify, defend, protect and hold the Indemnified
Parties harmless from and against any and all claims, demands, damages,
losses, liens, liabilities, penalties, fines, lawsuits, and other
proceedings and costs and expenses (including attorneys' fees) arising
directly or indirectly from or out of, or in any way connected with, any
activity on or use of the Premises or the Project by Tenant, its agents,
employees, contractors, invitees, or any subtenant or concessionaire put
into possession of all or any part of the Premises by Tenant, which
activity or use results in the Premises violating any applicable Access
Laws.
18
G. The provisions in this Paragraph shall supersede any other
provisions in this Lease regarding Access Laws to the extent
inconsistent with the provisions of this Paragraph. The provisions in
this Paragraph shall survive the expiration of the Term or the
termination of this Lease for any other reason whatsoever.
29. ADDITIONAL PROVISIONS.
Paragraph 30, attached hereto, is by this reference incorporated herein.
LANDLORD:
XXXXX & COMPANY, a division of XXXXX BANK N.A.,
as trustee of the Multi-Employer Property Trust, a trust organized
under 12 C.F.R. Section9.18
By: /s/ Xxxxxx Xxxxxx
----------------------
Name: Xxxxxx Xxxxxx
Title: Managing Director
Date: 6/30/99
TENANT:
ADVANCED MATERIALS, INC., a California corporation
0000 X.X. Tualatin Sherwood Road
Tualatin, Oregon 97062
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Name: Xxxxx X. Xxxxxxx
Title: Sr. Vice President
Date: 6/21/99
19
TENANT ACKNOWLEDGEMENT
STATE OF CALIFORNIA )
SS.
County of Los Angeles )
BE IT REMEMBERED, That on this 21st day of JUNE, 1999, before me, the
undersigned a Notary Public in and for said County and State, personally
appeared the within name XXXXX X. XXXXXXX known to me to be SENIOR VICE
PRESIDENT, ADVANCED MATERIALS who executed the within instrument and
acknowledged to me that he executed the same freely and voluntarily.
IN TESTIMONY WHEREOF, I hereunto set my hand and affixed
my official seal the day and year last above written.
[SEAL] /s/ XXXXXXX XXXXXX
----------------------------------------
Notary Public for CALIFORNIA
My commission expires SEPTEMBER 21, 2001
LANDLORD ACKNOWLEDGEMENT
DISTRICT OF COLUMBIA )
SS.
BE IT REMEMBERED, That on this 30th day of JUNE, 1999, before me, the
undersigned a Notary Public in and for said County and State, personally
appeared the within name, XXXXXX XXXXXX known to me to be MANAGING DIRECTOR
who executed the within instrument and acknowledged to me that he executed
the same freely and voluntarily.
IN TESTIMONY WHEREOF, I hereunto set my hand and affixed
my official seal the day and year last above written.
[SEAL] /s/ XXXXXX XXXX-XXXXXX
-------------------------------------------
Notary Public for DISTRICT OF COLUMBIA
My commission expires MARCH 31, 2003
ADDENDAS AND ADDITIONAL PROVISIONS TO LEASE AGREEMENT
DATED JUNE 4, 1999
BETWEEN
XXXXX & COMPANY,
A DIVISION OF XXXXX BANK N.A., AS TRUSTEE OF THE MULTI-EMPLOYER PROPERTY TRUST
("LANDLORD")
AND
ADVANCED MATERIALS, INC.
A CALIFORNIA CORPORATION
("TENANT")
__________________________________________________
ADDENDUM TO PARAGRAPH 2 - MONTHLY BASE RENT. The Monthly Base Rent as
provided for in Paragraph 2 of the Lease shall be as follows:
Months $/Month
------ -------
1 $7,514.00
2-8 $7,715.00
9-25 $8,083.00
ADDITIONAL PARAGRAPH 30, OPTION TO EXTEND. While this Sublease is in full
force and effect, provided that Tenant is not in material default of any of
the terms, covenants and conditions thereof, Landlord grants to Tenant one
(1) option to extend the term of the Sublease for a period of three (3)
years, commencing upon the termination of the original Lease term,
exercisable by giving Landlord notice in writing not later than one hundred
eighty days (180) days prior to the commencement date of the applicable
option term. Such extension or renewal of the term shall be on the same
terms, convenants or conditions as provided for in the original or
immediately preceding term except that the monthly base rent during the
extended term shall be at the fair market rental then in effect on equivalent
properties, of equivalent size, in equivalent areas determined in the manner
set forth below.
Landlord shall provide Tenant with written notification of Landlord's
determination of such fair market rental within thirty (30) days after
Tenant's extension notice. For purposes of this Paragraph 30, in the event
Landlord and Tenant are unable to agree upon the fair market rental within
thirty (30) days thereafter ("Negotiation Period"), the fair market rental
shall be established as follows: Within ten (10) days after the expiration of
the Negotiation Period, Landlord shall, in writing, designate an appraiser.
Within ten (10) days after the date of Landlord's written designation, Tenant
shall either accept Landlord's appraiser or shall provide Landlord with the
name of a second appraiser. If Tenant designates a second appraiser, the two
designated appraisers shall designate a third appraiser within ten (10) days
thereafter. The three appraisers shall then each determine fair market rental
within ten (10) days following the designation of the third appraiser (or
Tenant's acceptance of the appraiser designated by Landlord). For purposes of
this Paragraph 30, fair market rental shall be the average of the two closest
determinations by such appraisers. Tenant shall have ten (10) days following
determination of fair market rental to rescind its extension notice. Any
appraiser designated pursuant to this Paragraph 30 shall be an MAI appraiser
with at least five (5) years' experience in valuing commercial real estate
rental values in the Greater Portland area. All costs in connection with the
appraisal described in this Paragraph 30 shall be shared equally by the
parties. However, in no event shall the rental in the renewal term be below
the rental in the primary term of the Lease. In the event the demised
Premises is sublet or assigned this renewal option will be null and void and
of no further effect.
EXHIBIT A
PREMISES
[GRAPH]
________________________________________________________________________________
[GRAPH]
EXHIBIT B
LEGAL DESCRIPTION
A tract of land situated in the S.W. 1/4 of Section 23, T.2S., R.1W., X.X.,
City of Tualatin, Washington County, Oregon, being more particularly
described as follows:
Commencing at the south 1/4 corner of said Section 23; thence, along the east
line of the southeast quarter of the southwest quarter of said Section 23,
North 0 degrees 15'13" West, 32.89 feet to the true point of beginning;
thence, along the south line of that tract of land conveyed to Xxxx X. Xxxx,
recorded July 16, 1969, in book 750, Page 279, South 89 degrees 37'46" West,
1292.79 feet to the southwest corner of said Itel tract: thence, along the
west line of said Itel tract, North 0 degrees 01'38" East, 141.35 feet to a
point on the southerly right-of-way line of the Burlington Northern Railroad
(formerly Spokane, Portland, and Seattle Railroad); thence, along said
southerly right-of-way, being 25.00 feet from the centerline of the tracks,
when measured at right angles, North 56 degrees 01'15" East, 48.57 feet;
thence, continuing along said right-of-way and along the arc of a 165.0 foot
offset spiral curve to the right, offset 25.0 southerly, having a centerline
angle of 2 degrees 28'30", (chord bears North 57 degrees 01'09" East, 163.90
feet) to a point of spiral to curve; thence, continuing along said
right-of-away and along the arc of a 1884.86 foot radius curve to the right,
through a central angle of 20 degrees 33'00" (chord bears North 68 degrees
46'15" East, 672.42 feet) a distance of 676.03 feet to a point of curve to
spiral; thence, along the arc of a 165.0 foot offset spiral curve to the
right, offset 25.0 feet southerly, having a centerline spiral angle of 2
degrees 28'30" (chord bears North 80 degrees 31'21" East, 163.90 feet), to a
point of spiral; thence, North 81 degrees 31'15" East, 48.67 feet to a point
on the east line of that tract of land conveyed by deed to Xxxx X. Xxxx,
recorded in Book 750, Page 279, Washington County Deed Records; thence, along
the east line of said Itel tract, South 0 degrees 07'32" West, 100.00 feet to
the southeast corner thereof; thence, along the south line of said Itel
tract, North 89 degrees 52'28" West, 85.12 feet to a point on the east line
of the southeast quarter of the southwest quarter of said Section 23; thence,
along said east line, South 0 degrees 15'13" East, 593.31 feet; thence, South
44 degrees 17'29" East, 107.89 feet to a point that is 30.00 feet, when
measured at right angles, from the south line of said 1/4 said Section 23;
thence, parallel with the south line of said N.E. 1/4, South 89 degrees
29'45" West, 75.00 feet to a point on the west line of said N.E. 1/4; thence,
along said West line, North 0 degrees 15'13" West, 2.89 feet to the true
point of beginning.
Contains 677,845 square feet (15.56 acres).
EXHIBIT C
PLANS AND SPECIFICATIONS
This Exhibit C is intentionally left blank
EXHIBIT D
TUALATIN CORPORATE CENTER
TENANT'S ESTOPPEL CERTIFICATE
TO: Xxxxx & Company, a division of Xxxxx Bank, N.A., as Trustee of the
Multi-Employer Property Trust
c/x Xxxxxxx Associates Real Estate Counsel, Inc.
0000 Xxxxxxxxx Xxxxxx Xxxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
THIS IS TO CERTIFY:
1. That the undersigned is the Tenant under that certain Lease
dated __________________, and, if applicable, amended on ___________________,
by and between ____________________, a __________________________ limited
partnership ("Landlord") and the undersigned ("Tenant") covering those certain
premises located as shown on the drawing made part of the Lease (the
"Premises").
2. That said Lease is in full force and effect and, except as noted in
Paragraph 1, above, has not been modified, changed, altered or amended in any
respect, and is the only lease or agreement (oral or written) between the
Tenant and Landlord affecting the Premises.
3. To the best of Xxxxxx's knowledge, the information set forth below
is true and correct:
(a) Square footage of the Premises: _______________
(b) Annual rent as of the commencement of Lease: $_______________
(c) Current annual rent (if different than at
commencement): $_______________
(d) Lease term commenced:______________
(e) Lease termination date: ______________
(f) Rent is paid to and including: _____________
(g) Security Deposit: $______________
(h) Prepaid rent for and in amount of: $_____________
(i) Amount of current monthly Escrow payment obligations with
respect to taxes and other charges under Paragraph 4 of the
Lease and with respect to insurance under Paragraph 13 of the
Lease:
Taxes: $_______________
Insurance: $_______________
(j) Amount of current monthly payments due under Paragraph 7 of the
Lease with respect to Common Area Maintenance
charges: $_______________
(k) Dates through which Tenant has paid monthly Escrow Payments and
Common Area Maintenance charges:
Escrow Payment for Taxes:_______________
Escrow Payment for Insurance: _______________
Common Area Maintenance: _______________
4. The Tenant, unless otherwise stated in Exhibit A, now occupies the
Premises, accepts the Premises in their current condition subject only to
those punch list items shown on Exhibit A, if any, and is not aware of any
defect in the Premises except as shown on Exhibit A, if any. No rent has
been collected in the current month other than as disclosed in Paragraph 3.
No free rent or other concessions, benefits, or inducements other than as
specified in the Lease have been granted to Tenant or undertaken by the named
Landlord. All required contributions by Landlord to Tenant on account of
tenant improvements have been made or received as applicable.
5. The Tenant has not been granted any renewal, expansion or purchase
options and has not been granted any rights of first refusal except as
disclosed in writing in the Lease.
6. Neither Tenant nor Landlord is in default under the Lease and there
has not occurred any event, which by notice or lapse of time or both or
otherwise, will result in any default. As of the date hereof and except as
set forth in the Lease, the undersigned is entitled to no credit, offset or
deduction in the rent. Tenant knows of no liabilities or obligations of
Landlord which have accrued but are unsatisfied under the Lease as of the
date of this Certificate.
7. Tenant is required, under Paragraph 7 of the Lease, to pay a
proportionate share of certain costs associated with the "Common Area which
shall be defined from time to time by Landlord."
8. To the best of Xxxxxx's knowledge, there are no actions, whether
voluntary or otherwise, pending against the undersigned under the bankruptcy
laws or other laws for the relief of debtors of the United States or any
state thereof.
9. No party-in-interest relationship exists between one or more of the
pension plans identified in Section 26K of the Lease and the Tenant such that
the Lease will become a non-exempt, prohibited transaction under ERISA on
purchase of the Premises by the addressee.
10. The term "party-in-interest" shall have the meaning assigned to it
in Section 3(14) of ERISA. ERISA shall mean the Employee Retirement Income
Security Act 0f 1974, as amended.
DATED this 21st day of June, 1999
TENANT: /s/ [ILLEGIBLE]
-------------------------------
EXHIBIT E
LIST OF APPLICABLE EMPLOYEE BENEFIT PLANS
Participants whose holdings in the Multi-Employer Property Trust constitute
5% or more of net assets, as of 1/1/90:
- NATIONAL AUTOMATIC SPRINKLER INDUSTRY PENSION FUND
- PLUMBERS AND PIPEFITTERS NATIONAL PENSION FUND
