EXHIBIT 10.11(a)
ONE THOUSAND BROADWAY BUILDING LIMITED PARTNERSHIP
LEASE AGREEMENT
TERMS AND CONDITIONS
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SECTION 1. DEMISE AND RENT
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1.1 Demise: Landlord hereby leases to Tenant and Tenant hereby leases
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from Landlord, upon and subject to the terms, covenants, provisions and
conditions of this Lease Agreement (herein called the "Lease"), the premises
described in Section 1.2 in the building (herein called "Building") located on
the Land described on EXHIBIT A attached hereto and incorporated herein.
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1.2 Premises: The Premises (herein called "Premises") leased to Tenant
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are described in the Basic Lease Information, and are outlined on the floor
plan(s) for the Building attached hereto as EXHIBIT B and incorporated herein by
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this reference.
1.3 Commencement and Expiration Dates: The term of this Lease (herein
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called "Lease Term") shall be for the period specified in the Basic Lease
Information subject to adjustment as provided in Section 30 (or until sooner
terminated as herein provided). After the Commencement Date has occurred, the
parties shall attach an addendum to this Lease confirming when the actual
Commencement Date occurred.
1.4 Rent: The rents shall be and consist of a Base Rent (herein called
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"Base Rent") and Additional Rent (herein called "Additional Rent"). For purposes
of this Lease Agreement, Base Rent and Additional Rent are referred to
collectively as "Rent." Base Rent shall be the amount indicated in the Basic
Lease Information. Base Rent shall be payable in equal monthly installments in
advance on the first day of each and every calendar month during the term of
this Lease (except to the extent otherwise specifically provided elsewhere in
this Lease and except that Tenant shall pay, upon the execution and delivery of
this Lease by Tenant, the sum indicated in the Basic Lease Information, to be
applied against the first installment or installments of Base Rent becoming due
under this Lease). Additional Rent shall consist of all other sums of money as
shall become due and payable by Tenant to Landlord hereunder. All rent shall be
paid in lawful money of the United States of America to Landlord at its office
or such other place, as Landlord shall designate by notice to Tenant. Tenant
shall pay the Base Rent and Additional Rent promptly when due without notice or
demand therefor and without any abatement, deduction or setoff for any reason
whatsoever, except as expressly provided in this Lease. If the Commencement Date
occurs on a day other than the first day of a calendar month, the Base Rent for
that partial calendar month shall be prorated on a daily basis. If the Basic
Lease Information provides for the abatement of Base Rent for specified periods
of time during the term of the Lease ("Free Rent Period(s)"), none of the Base
Rent specified in this Lease as payable during the Lease Term shall be allocable
to any such Free Rent Period(s). In the event of any default by Tenant, Landlord
shall have the right to collect Rent for the Premises from Tenant for all Free
Rent Period(s) at the same Base Rent in effect immediately after any such Free
Rent Period(s).
1.5 Late Charge: Tenant recognizes that late payment of any Rent from
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Tenant to Landlord will result in administrative expense to Landlord, the extent
of which additional expense is extremely difficult and economically impractical
to ascertain. Tenant therefore agrees that if Rent from Tenant to Landlord
remains unpaid ten (10) days after said amount is due, the amount of such unpaid
Rent or other payments shall be increased by a late charge to be paid to
Landlord by Tenant in an amount equal to five percent (5%) of the amount of the
delinquent Rent or other payment. Tenant agrees that such amount is a reasonable
estimate of the loss and expense to be suffered by Landlord as a result of such
late payment by Tenant and may be charged by Landlord to defray such loss and
expense. The provisions of this Section in no way relieve Tenant of the
obligation to pay Rent or other payments on or before the date on which they are
due, nor do the terms of this Section in any way affect Landlord's remedies
pursuant to Section 21 of this Lease in the event Rent is past due.
1.6 Confidentiality: Tenant shall keep the Rent and other terms of this
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Lease confidential from other current and prospective occupants of the Building
and any other buildings owned by Landlord except to the extent disclosure is
reasonably necessary in the conduct of Tenant's business. If Tenant violates
this requirement then Tenant shall lose all concessions agreed to by Landlord
under this Lease such as free rent, moving allowances, above standard Tenant
Improvement allowance and the like and shall reimburse Landlord for any such
items already
received. Tenant acknowledges that the actual damage caused to Landlord by a
violation of this requirement will be difficult to determine and that the
liquidated damages specified are a reasonable estimate of the damage that would
be caused by disclosure of the Lease terms in violation of this requirement.
SECTION 2. USE:
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2.1 Generally: Tenant shall use and occupy the Premises continuously
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during the term of this Lease for the use specified in the Basic Lease
Information and for no other purpose without the written consent of Landlord,
which consent shall not be unreasonably withheld. If any governmental license or
permit, other than a Certificate of Occupancy shall be required for the proper
and lawful conduct of Tenant's business in the Premises or any part thereof,
Tenant, at its expense, shall duly procure and thereafter maintain such license
or permit and submit the same to Landlord for inspection. Tenant shall at all
times comply with the terms and conditions of each such license or permit.
Tenant shall not do or permit anything to be done in or about the Premises which
will in any way obstruct or interfere with the rights of other tenants or
occupants of the Building or injure or annoy them, nor use or allow the Premises
to be used for any improper, immoral, unlawful or objectionable purpose, nor
shall Tenant cause or maintain or permit any nuisance in, on, or about the
Premises. Tenant shall not commit or allow the commission of any waste in, on,
or about the Premises. Tenant shall not use the Premises or permit anything to
be done in or about the Premises which will in any way conflict with any law,
statute, ordinance, or governmental rule or regulation now in force or which may
hereafter be enacted or promulgated. Tenant shall not do or permit anything to
be done on or about the Premises or bring or keep anything therein which will in
any way increase the rate of any insurance upon the Building in which the
Premises are situated or any of its contents or cause a cancellation of said
insurance or otherwise affect said insurance in any manner. Tenant shall, at its
sole cost and expense, promptly comply with all laws statues, ordinances, and
governmental rules, regulations, or requirements now in force or which may
hereafter be in force ("Legal Requirements") and with the requirements of any
board of fire underwriters or other similar body now or hereafter constituted
relating to or affecting the condition, use, or occupancy of the Premises,
excluding structural changes not related to or affected by: (i) alterations or
improvements made by or for Tenant; or (ii) Tenant's acts. The judgment of any
court of competent jurisdiction or the admission of Tenant in an action against
Tenant whether Landlord be a party thereto or not, that Tenant has so violated
any such law, statute, ordinance, rule, regulation, or requirement, shall be
conclusive of such violation between Landlord and Tenant. Tenant shall use its
best efforts to prevent any violation of applicable Legal Requirements by its
partners, directors, officers, agents, and employees.
2.2 ADA Law Compliance: Landlord and Tenant acknowledge that the
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provisions of the Americans with Disabilities Act (the "ADA") allow allocation
of responsibility for compliance with the terms and conditions of the ADA in the
Lease. Landlord and Tenant agree that the responsibility for compliance with the
ADA shall be allocated as set forth in this Section. Tenant shall be responsible
for compliance with the applicable provisions of the ADA with respect to all
improvements within the Premises except that Landlord represents that any
improvements designed by Landlord's office planner and installed by Landlord
pursuant to Exhibit C will conform to the requirements of the ADA Compliance
Guidelines in effect as of the date of substantial completion of the work.
Landlord shall be responsible for compliance with the provisions of the title
III of the ADA with respect to the exterior of the Building and the land
including parking areas, sidewalks and walkways, and the like, together with all
common areas of the Building. Neither Landlord nor Tenant shall be obligated to
supervise, monitor or otherwise review the compliance activities of the other.
Tenant acknowledges that the expense of Landlord's fulfillment of its ADA
obligations is an element of Operating Expenses as such term is defined in the
Lease. Any such ADA expense for capital improvements shall be amortized over the
useful life of the same for purposes of Operating Expenses in the same manner as
provided in the Lease for capital improvements intended to reduce Operating
Expenses. References in this Lease to Legal Requirements shall be deemed to
refer to the ADA among other laws.
2.3 Environmental Law Compliance: For purposes of this Section the term
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"Hazardous Substances" shall mean and include all hazardous and toxic
substances, waste or materials, any pollutant or contaminant, including, without
limitation, PCBs, asbestos, asbestos-containing material, and raw materials that
are included under or regulated by any Environmental Laws. For purposes of this
Lease the term "Environmental Laws" shall mean and include all federal, state
and local statutes, ordinances, regulations and rules presently in force or
hereafter enacted relating to environmental quality, contamination, and clean-up
of Hazardous Substances, including, without limitation, the comprehensive
Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C.
(S)6091 et seq., as amended by the Superfund Amendments and Reauthorization Act
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of 1986, the Resource Conservation and Recovery Act of 1976, 42 U.S.C. (S)6091
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et seq., as amended by the Hazardous and Solid Waste Amendments of 1984, and
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state superlien and environmental clean-up statutes and all rules and
regulations presently or hereafter promulgated under said statutes as amended.
References in this Lease to Legal Requirements shall be deemed to refer to
Environmental Laws among other laws. Landlord represents that to the best of
its current actual knowledge, the Building and the Land are in compliance with
all Environmental Laws respecting Hazardous Substances, and that Landlord has
received no notice of any pending or threatened lien, action or proceeding
respecting any alleged violation of Environmental Laws respecting Hazardous
Substances that has occurred on or near the Land or in or about the Building.
Tenant acknowledges that the expense of compliance with Environmental Laws is an
element of Operating Expenses except to the extent that any such expense
resulted from the fault of the Landlord. Landlord shall use reasonable efforts
to recover any expense of compliance with Environmental Laws from any third
party who is liable for the same and credit any such recovery against Operating
Expenses.
2.4 Indemnity Regarding Legal Violations: Tenant shall indemnify and
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hold harmless Landlord and all Superior Lessors and/or Superior Mortgagees and
its and their respective partners, directors, officers, agents and employees
from and against any and all claims arising from or in connection with the
violation of Legal Requirements including but not limited to the ADA or
Environmental Laws, occurring in, at or about the Building and the Land due to
the acts or omissions of Tenant or its partners, directors, officers, agents and
employees; together with all costs, expenses and liabilities incurred or in
connection with each such claim, action, proceeding or appeal, including,
without limitation, all attorneys' fees and expenses. Landlord shall indemnify
and hold harmless Tenant and its partners, directors, officers, agents and
employees from and against any and all claims arising from or in connection with
the violation of Legal Requirements including but not limited to the ADA or
Environmental Laws occurring in, at or about the Building and the Land due to
the acts or omissions of Landlord or its partners, directors, officers, agents
and employees; together with all costs, expenses and liabilities incurred or in
connection with each such claim, action, proceeding, or appeal, including,
without limitation, all attorneys' fees and expenses.
SECTION 3. TENANT'S ACCEPTANCE AND MAINTENANCE OF PREMISES:
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By taking possession of the Premises, Tenant accepts the Premises as
being in the condition in which Landlord is obligated to deliver them and
otherwise in good order, condition and repair. Landlord's obligations to
maintain the building are as set forth in Section 14.1 hereof. Tenant shall, at
all times during the term hereof at Tenant's sole cost and expense, keep the
following items in good order, condition and repair: (i) floor coverings, (ii)
wall coverings, (iii)paint, (iv) casework, (v) ceiling tiles, (vi) all of
Tenant's Property (as defined in Section 13.2 herein); and (vii) any and all
non-Building-Standard Tenant Improvements. Landlord shall have no obligation to
alter, remove, improve, repair, decorate, or paint the premises or any part
thereof except as specified in EXHIBIT C attached hereto and made a part hereof.
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No representations respecting the condition of the Premises or the Building have
been made by Landlord to Tenant, except as herein set forth.
SECTION 4. OPERATING EXPENSES AND TAXES
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4.1 Operating Expenses: For the purposes of this Lease, the term
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"Operating expenses" shall mean all expenses paid or incurred by Landlord (or on
Landlord's behalf) as reasonably determined by Landlord to be necessary or
appropriate for the efficient operation, maintenance and repair of the Land
and/or Building, including the common areas of the Building, including without
limitation: (i) salaries, wages, medical, surgical, union and general welfare
benefits (including, without limitation, group life insurance) and pension
payments of employees of Landlord engaged in the repair, operation and
maintenance of the Land and/or Building; (ii) payroll taxes, workers'
compensation insurance, uniforms and related expenses for employees; (iii) the
cost of all charges for gas, steam, electricity, heat, ventilation, air-
conditioning, water and other utilities furnished to the Building, together with
any taxes on such utilities; (iv) the cost of painting of public areas; (v) the
cost of all charges of insurance, including rent loss insurance, casualty,
liability, fire with extended coverage endorsement and fidelity insurance, with
regard to the Land and/or Building and the maintenance and/or operation thereof;
(vi) the cost or rental of all supplies including without limitation, cleaning
supplies, light bulbs, tubes and ballasts, materials and equipment and sales and
other taxes thereon; (vii) the cost of hand tools and other movable equipment
used in the repair maintenance or operation of the Building amortized over the
useful life of such hand tools and movable equipment (as reasonably estimated by
Landlord); (viii) the cost of all charges for window and other cleaning and
janitorial and security services; (ix) charges of independent contractors
performing repairs or services to the Land and/or Building; (x) non-capital
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repairs; (xi) remodeling of the public and common areas of the Building
including, without limitation, repainting, replacement and repair of
furnishings, fixtures, accessories, carpeting or other floor covering, wall and
window coverings in the public and common areas, the cost of which shall be
amortized (with interest at the rate of nine percent [9%] on the unamortized
balance) over the useful life of the improvements as reasonably estimated by
Landlord; (xii) alterations and improvements to the Building made by reason of
the laws and requirements of any public authorities or the requirements of
insurance bodies; (xiii) management fees paid to a third party, or, if no
managing agent is employed by Landlord, Landlord shall be entitled to charge a
management fee which is not in excess of four percent (4%) of gross revenue, and
such fee shall be included in the Operating Expenses; (xiv) the cost of any
capital improvements or repairs to the Building and/or of any machinery or
equipment installed in the Building amortized (with interest at the rate of nine
percent [9%] on the unamortized balance) over the useful life of the
improvement, machinery and/or equipment as reasonably estimated by Landlord,
which is made or becomes operational, as the case may be, after the completion
of the construction of the Building and which have a reasonable probability of
reducing the expenses which otherwise would be included in Operating Expenses;
(xv) reasonable legal, accounting and other professional fees incurred in
connection with operation, maintenance and management of the Land and/or
Building; (xvi) the cost of providing elevator service; (xvii) the cost of
landscape and parking area maintenance and repair; (xviii) the common area
charges to which the Building is subject; (xix) Taxes as defined in Section 4.3;
and (xx) all other charges properly allocable to the operation, repair and
maintenance of the Building in accordance with generally accepted accounting
principles.
4.2 Exclusions From Operating Expenses: Operating expenses shall not
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include: (i) depreciation or amortization (except as provided above in Section
4.1); (ii) interest on and amortization of debts (except as provided above in
Section 4.1); (iii) leasehold improvements made for new tenants of the Building;
(iv) leasing commissions, attorneys' fees, costs and disbursements and other
expenses (including advertising) incurred in connection with leasing,
renovating, or improving space for tenants or other occupants or prospective
tenants or occupants of the Building; (v) refinancing costs; (vi) the cost of
any work or services performed for any tenant(s) of the Building (including
Tenant), whether at the expense of Landlord or such tenant(s), to the extent
that such work or services is in excess of the work or services which Landlord,
at its expense, is required to furnish to Tenant under this Lease with Tenant;
(vii) the cost of any electricity furnished to the Premises or any other space
in the Building leased to tenants in excess of the electricity to be provided by
Landlord under this Lease with Tenant; (viii) damages recoverable by any tenant
due to violation by Landlord of any of the terms and conditions of this Lease or
any other lease relating to the Building; (ix) repairs occasioned by fire,
windstorm or other casualty, to the extent such repairs are paid for by
insurance proceeds; and (x) capital repairs and replacements (except as provided
above in Section 4.1).
4.3 Taxes: The term "Taxes" shall include (i) all real property taxes
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and assessments and personal property taxes, charges, rates, duties and
assessments rated, levied or imposed by any governmental authority with respect
to the Land, the Building and any improvements, fixtures and equipment located
therein or thereon, and with respect to all other property of Landlord, real or
personal, located in or on the Land or the Building and used in connection with
the operation of the Building; (ii) any tax in lieu of a real property tax;
(iii) any tax or excise levied or assessed by any governmental authority on the
rentals payable under this Lease or rentals accruing from the use of the Land or
the Building; provided that this shall not include federal or state, corporate
or personal income taxes; and (iv) any tax or excise imposed or assessed against
Landlord which is measured or based in whole or in part on the capital employed
by Landlord to improve the Land and construct the Building.
SECTION 5. PAYMENT OF OPERATING EXPENSES:
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5.1 Operating Year: As used in this Section 5, the term "Operating
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Year" shall mean each calendar year of the Lease Term and in the event this
Lease begins or ends on any date other than the first day of the calendar year,
the calculations, costs and payments referred to herein shall be prorated as
provided in Section 31.11.
5.2 Tenant's Pro Rata Share: Tenant shall pay, as Additional Rent, its
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pro rata share of the increase in Operating Expenses of the Building, if any,
over the Base Year Amount. Tenant's pro rata share of the increase in Operating
Expenses of the Building for each Operating Year shall be calculated as follows:
the actual Operating Expenses for each Operating Year less the Base year Amount
shall be multiplied by Tenant's percentage (as specified in the Basic Lease
Information, and as adjusted as provided herein). If in any Operating Year
Tenant occupies the Premises for less than the full Operating Year, then the
product from the foregoing multiplication shall
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be multiplied by the percentage of the Operating Year in which Tenant occupied
the Premises. "Tenant's percentage" shall mean a percentage, the numerator of
which is the number of rentable square feet of the leased Premises and the
denominator of which is the total number of rentable square feet of the
Building, whether or not such space is actually rented. The Tenant's percentage
(as specified in the Basic Lease Information, and adjusted as provided herein)
shall be changed from time to time to reflect any change in the total rentable
square footage in the Building. All calculations of rentable area shall be on
the basis as originally used to determine the rentable area shown in the Basic
Lease Information. The "Base year Amount" shall mean the actual Operating
Expenses during the Base Year specified in the Basic Lease Information less any
portion thereof resulting from any utility rate increases occurring after the
Commencement Date of the Lease and prior to the end of the Base Year. During the
periods when the Building is not fully occupied, Landlord shall reasonably
adjust Operating Expenses to reflect the costs that would normally have been
incurred had the Building been fully occupied for the entire period and the
Building had been fully assessed for property tax purposes. The Building shall
be considered fully occupied when occupancy reaches Ninety-five percent (95%).
If during any Operating Year the tenant of any space in the Building performs
work or services therein pursuant to a written agreement between Landlord and
such tenant in lieu of having Landlord perform the same and the cost thereof
would have been included in the Landlord's Operating Expenses, then in any such
event(s), at Landlord's option, the Operating Expenses for such Operating Year
shall be adjusted to reflect the Operating Expenses that would have been
incurred if Landlord had performed such work or services, as the case may be.
5.3 Written Statement of Estimate: Prior to the commencement of each
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Operating Year during the Lease Term, Landlord shall furnish Tenant with a
written statement setting forth Tenant's pro rata share of the estimated
increase in Operating Expenses and Taxes for the next Operating Year. Tenant
shall pay to Landlord as Additional Rent commencing on January 1 of the
Operating Year, and thereafter on the first day of each calendar month, an
amount equal to one-twelfth of the amount of Tenant's pro rata share as shown in
Landlord's written statement. In the event Landlord delivers the written
statement late, Tenant shall continue to pay to Landlord an amount equal to one-
twelfth of Tenant's pro rata share of the estimated Operating Expenses for the
immediately preceding Operating Year until Landlord does furnish the written
statement, at which time Tenant shall pay the amount of any excess of the
Tenant's pro rata share for the expired portion of the current Operating Year
over the Tenant's actual payments during such time and any excess payments by
Tenant shall be credited to the next due payment of Rent from Tenant. The late
delivery of any written statement by Landlord shall not constitute a waiver of
Tenant's obligation to pay its pro rata share of Operating Expenses nor subject
the Landlord to any liability, but Landlord shall use reasonable efforts to
deliver such written statements of estimated increase in Operating Expenses as
soon as reasonably possible after the commencement of each Operating Year.
5.4 Final Written Statement: Within 120 days after the close of each
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Operating Year during the Lease term, Landlord shall deliver to Tenant a written
statement (the "Operating Statement") setting forth Tenant's actual pro rata
share of the increase in Operating Expenses for the preceding Operating Year. In
the event Tenant's pro rata share of the actual increase in Operating Expenses
is in excess of the Tenant's pro rata estimated increase in Operating Expenses,
Tenant shall pay the amount of such excess to Landlord as Additional Rent within
thirty (30) days after receipt of such statement by Tenant. In the event
Tenant's pro rata share of the actual increase in Operating Expenses is less
than the Tenant's pro rata share of the estimated increase in Operating Expenses
actually paid by Tenant then the amount of the excess overpayment shall be paid
by Landlord to Tenant within thirty (30) days following the date of such
statement or Landlord may elect to apply the overpayment to Tenant's next Rent
payment, reimbursing only the excess over such next payment, if any. The late
delivery of any written statement by Landlord shall not constitute a waiver of
Tenant's obligation to pay its pro rata share of Operating Expenses, but
Landlord shall use reasonable efforts to deliver such written statements as soon
as reasonably possible after the commencement of each Operating Year.
5.5 Tenant Examination: The Operating Statement referred to herein need
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not be audited but shall contain sufficient detail to enable Tenant to verify
the calculation of its pro rata share. In addition, Tenant, upon at least five
days advance written notice to Landlord and during business hours, may examine
any invoices, receipts, canceled checks, vouchers or other instruments used to
support the figures shown on the Operating Statement, provided, however, that
Tenant shall only be entitled to such an examination once in each Operating
Year.
5.6 Disputes: Each such Operating Statement given by Landlord pursuant
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to this Section shall be conclusive and binding upon Tenant unless within thirty
(30) days after the receipt of such Operating Statement
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Tenant shall notify Landlord that it disputes the correctness of the Operating
Statement, specifying the particular respects in which the Operating Statement
is claimed to be incorrect. If such disputes shall not have been settled by
agreement, either party, within thirty (30) days after receipt of such
Statement, may pursue its available legal remedies, but Tenant hereby agrees
that a dispute over the Operating Statement or any error by Landlord in
interpreting or applying Section 4 or in calculating the amounts in the
Operating Statement shall not be a breach of this Lease by Landlord, and even if
any legal preceding over the Operating Statement is resolved against Landlord
this Lease shall remain in full force and effect and Landlord shall not be
liable for any consequential damages, and pending the determination of such
dispute, Tenant, within ten (10) days of receipt of such Operating Statement,
shall pay Additional Rent in accordance with the Operating Statement, without
prejudice to Tenant's position. If the dispute shall be determined in Tenant's
favor, Landlord shall forthwith pay to Tenant the amount of Tenant's overpayment
of rents resulting from compliance with the Operating Statement.
5.7 Payment: If an Operating Year ends after the expiration or
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termination of this Lease, the Additional Rent in respect thereof payable under
this Section shall be paid by Tenant within ten (10) days of is receipt of the
Operating Statement for such Operating Year.
5.8 No Reduction in Amount of Base Rent: Nothing in the Lease shall be
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construed to mean the Base Rent amount specified in the Basic Lease Information
shall be reduced due to any decrease in Operating Expenses, it being intended
that the amount of the Base Rent remain fixed throughout the Lease Term.
SECTION 6. SECURITY DEPOSIT:
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6.1 Security Deposit: Upon the execution of this Lease by Tenant,
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Tenant shall pay to Landlord the sum indicated in the Basic Lease Information as
security for the full and faithful performance and observance by Tenant of
Tenant's covenants and obligations under this Lease and Tenant shall not be
entitled to interest thereon (the "Security Deposit"). Failure to promptly pay
such Security Deposit shall be considered a default under this Lease. Landlord
may commingle this Security Deposit. If Tenant defaults in the full and prompt
payment and performance of any of Tenant's covenants and obligations under this
Lease, including, but not limited to, the payment Base Rent and Additional Rent,
Landlord may use, apply or retain the whole or any part of the Security Deposit
so deposited to the extent required for the payment of any Base Rent and
Additional Rent or any other sums as to which Tenant is in default or for any
such sums which Landlord may expend or may be required to expend by reason of
Tenant's default in respect of any of the terms, covenants and conditions of
this Lease, including, but not limited to, any damages or deficiency in the
reletting of the Premises, whether such damages or deficiency accrue before or
after summary proceedings or other re-entry by Landlord.
6.2 Disposition of Security Deposit: If Landlord shall so use, apply or
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retain the whole or any part of the security, Tenant shall upon demand
immediately deposit with Landlord a sum equal to the amount so used, applied or
retained, as security as aforesaid. If Tenant shall fully and faithfully comply
with all of Tenant's covenants and obligations under this Lease, the security or
any blance thereof shall be returned or paid over to Tenant after the date on
which this Lease shall expire or sooner end or terminate. In the event of any
sale of Landlord's interest in the Building or an leasing of the Building,
whether or not in connection with a sale or leasing of the Land, Landlord shall
have the right to transfer the security to the vendee or lessee and Landlord
shall thereupon be released by Tenant from all liability for the return or
payment thereof; and Tenant shall look solely to the new landlord for the return
or payment of the same; and the provisions hereof shall apply to every transfer
or assignment made of the same to a new land lord. Tenant shall not assign or
encumber or attempt to assign or encumber the monies deposited herein as
security and neither Landlord nor its successors or assigns shall be bound by
any such assignment, encumbrance, attempted assignment or attempted encumbrance.
SECTION 7. SUBORDINATION, NOTICE TO SUPERIOR LESSORS AND MORTGAGEES:
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7.1 Subordination: Any lease to which this Lease is, at the time
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referred to, subject and subordinate is herein called "Superior Lease" and the
lessor of a Superior Lease or its successor in interest, at the time referred
to, is herein called "Superior Lessor," and any mortgage to which this Lease is,
at the time referred to, subject and subordinate is herein called "Superior
Mortgage" and the holder of a Superior Mortgage, or its successor in interest,
at the time referred to, is herein called "Superior Mortgagee." This Lease, and
all rights of Tenant hereunder, are and shall be subject and subordinate to any
ground leases covering the Land and/or the Building now or hereafter
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existing, and to all mortgages which may now or hereafter affect the Land and/or
the Building and/or any of such leases, whether or not such mortgages shall also
cover other lands and/or buildings and/or leases, to each and every advance made
or hereafter to be made under such mortgages, and to all renewals,
modifications, replacements and extensions of such leases and such mortgages.
This Section shall be self-operative, and no further instrument of subordination
shall be required. In confirmation of such subordination, Tenant shall promptly
execute, acknowledge or deliver any instrument that Landlord, any Superior
Lessor or any Superior Mortgagee may reasonably request to evidence such
subordination; and if Tenant fails to execute, acknowledge or deliver any such
instruments within ten (10) days after request therefor, Tenant hereby
irrevocably constitutes and appoints Landlord as Tenant's attorney-in-fact,
coupled with an interest, to execute and deliver any such instruments for and on
behalf of Tenant.
7.2 Notice: If any act or omission of Landlord would give Tenant the
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right, immediately or after lapse of a period of time, to cancel or terminate
this Lease, or to claim a partial or total eviction, Tenant shall not exercise
such right: (i) until it has given written notice of such act or omission to
Landlord and each Superior Mortgagee and each Superior Lessor whose name and
address shall previously have been furnished to Tenant; and (ii) until thirty
(30) days shall have elapsed following the time when such Superior Mortgagee or
Superior Lessor shall have become entitled under such Superior Mortgage or
Superior Lease, as the case may be, to remedy the same.
7.3 Attornment: For the purposes of this Section, the term "Successor
----------
Landlord" shall mean the Superior Lessor or Superior Mortgagee if the same
succeeds to the rights of Landlord under this Lease, whether through possession
or foreclosure action or delivery of a new lease or deed, or any third party
that succeeds to the rights of Landlord under this Lease by virtue of having
purchased the Land and the Building at a foreclosure sale. At the request of a
Successor Landlord and upon such Successor Landlord's written agreement to
accept Tenant's attornment, and to not disturb Tenant's quiet possession of the
Premises, Tenant shall attorn to and recognize such Successor Landlord as
Tenant's Landlord under this Lease and shall promptly execute and deliver any
instrument that such Successor Landlord may reasonably request to evidence such
attornment. Upon such attornment this Lease shall continue in full force and
effect as a direct lease between the Successor Landlord and Tenant upon all of
the terms, conditions and covenants as are set forth in this Lease except that
the Successor Landlord shall not: (i) be liable for any previous act or
omission of Landlord under this Lease; (ii) be subject to any offset, deficiency
or defense which theretofore shall have accrued to Tenant against Landlord;
(iii) be bound by any previous modification of this Lease or by any previous
prepayment of more than one (1) month's Base Rent, unless such modification or
prepayment shall have been expressly approved in writing by the Superior Lessor
or the Superior Mortgagee through or by reason of which the Successor Landlord
shall have succeeded to the right of Landlord under this Lease; (iv) be liable
for the commencement or completion of any construction or any contribution
toward construction or installation of any improvements upon the Premises
required under this Lease, or any expansion or rehabilitation of existing
improvements upon the Premises, or for restoration of improvements following any
casualty not required to be insured under this Lease or for the costs of any
restoration in excess of the proceeds recovered under any insurance required to
be carried under this Lease; (v) be liable for the right and claim under this
Lease in, to and upon any award or other compensation heretofore or hereafter to
be made for any taking by eminent domain of any part of the Premises, and as to
the right of disposition thereof, the same shall be in accordance with the
provisions of any Superior Lease or Superior Mortgage; (vi) be liable for any
right and claim under this Lease in, to and upon any proceeds payable under all
policies of fire and rent insurance upon the Premises and as to the right of
disposition thereof, the same shall be in accordance with the terms of any
Superior Lease or Superior Mortgage; (vii) be liable for any lien, right, power
or interest, if any, which may have arisen or intervened in the period between
the recording of any Superior Mortgage and the execution of this Lease or any
lien or judgment which may arise at any item under the terms of this Lease; or
(viii) be liable for the return of any security deposit which was not actually
transferred to the Successor Landlord.
SECTION 8. QUIET ENJOYMENT:
---------- ---------------
So long as Tenant pays all of the Base Rent and Additional Rent and
performs all of Tenant's other obligations hereunder, Tenant shall peaceably and
quietly have, hold and enjoy the Premises without hindrance, ejection or
molestation by Landlord or any person lawfully claiming through or under
Landlord, subject nevertheless, to the provisions of this Lease and to any
Superior Lease and/or Superior Mortgage. This covenant shall be construed as a
covenant running with the Land, and is not, nor shall it be construed as, a
personal covenant of Landlord, except to the extent of Landlord's interest in
this Lease and only so long as such interest shall continue, and thereafter this
covenant shall be binding only upon subsequent successors in interest of
Landlord's interest in
-7-
this Lease, to the extent of their respective interests, as and when they shall
acquire the same, and so long as they shall retain such interest.
SECTION 9. ASSIGNMENT AND SUBLETTING:
---------- -------------------------
9.1 Generally: Tenant shall not sell, assign, sublet, encumber, or
---------
otherwise transfer by operation of law or otherwise this Lease or any interest
herein, or the Premises or any portion thereof, without the prior written
consent of Landlord (which Landlord shall not unreasonably withhold) nor shall
Tenant permit any lien to be placed on the Tenant's interest by operation of
law. Any change in effective control of a corporation, partnership or other
artificial entity which is the Tenant shall be deemed a transfer of this Lease.
Any transfer hereunder by Tenant shall not result in Tenant being released or
discharged from any liability under this Lease. Any sale, assignment,
encumbrance, subletting, occupation, lien or other transfer of this Lease which
does not comply with the provisions of this Section 9 shall be void. Any listing
on Building directories or other signage using a name other than Tenant's in
conjunction with the Premises will not be deemed, nor will it substitute for,
Landlord's consent, as required by this Lease, to any sublease, assignment or
other occupancy of the Premises.
9.1.1 Tenant shall, by written notice, advise Landlord of its
desire from and after a stated date (which shall not be less than thirty [30]
days nor more than ninety [90] days after the date of Tenant's notice), to
transfer its interest in the Premises or any portion thereof for any part of the
term hereof; and such notice by Tenant shall state the name and address of the
proposed transferee, and Tenant shall deliver to Landlord a true and complete
copy of the proposed transfer instrument with said notice.
9.1.2 Upon any request by Tenant to transfer all or any part of
the Premises, Landlord shall have the right to either: (a) permit the transfer
on the conditions referred to in Section 9.2 and any other conditions Landlord
may impose, (b) deny Tenant's request, in which event this Lease shall continue
in full force and effect and unmodified; or (c) terminate this Lease by written
notice to Tenant with respect to the portion of the Premises described in
Tenant's notice and if Landlord desires, to then lease such space to any party
including the transferee identified in Tenant's notice at whatever times
Landlord establishes. Any such termination with respect to less than all of the
Premises shall result in a percentage reduction in Rent equal to the percentage
of the Premises as to which the Lease is terminated.
9.2 Conditions of Landlord's Consent; As a condition to Landlord's
--------------------------------
prior written consent as provided for in this Section, the transferee(s) shall
agree in writing to comply with and be bound by all of the terms, covenants,
conditions, provisions and agreements of this Lease, and Tenant shall deliver to
Landlord, promptly after execution, an executed copy of each transfer instrument
and an agreement of said compliance by each transferee. Landlord may require as
a condition granting consent to a transfer that Tenant shall pay to Landlord all
profits from the transfer determined by deducting from the total consideration
paid directly or indirectly to or for the benefit of Tenant or its designee for
the transferred interest, the reasonable costs of the transfer incurred by the
Tenant and subtracting the remaining rent obligation of the Tenant at such time
under this Lease. For purposes of determining all profits form the transfer,
substance shall control over form such that Landlord may ignore any attempt by
Tenant to inflate the purchase price of any other assets transferred in any
attempt to conceal the profit on the transfer of the Tenant's interest in this
Lease. Sums payable hereunder shall be paid to Landlord as and when paid by the
transferee to Tenant.
SECTION 10. INSURANCE:
----------- ---------
10.1 Waiver of Right of Recovery: Neither party, nor its officers,
---------------------------
directors, employees, agents or invitees, nor, in case of Tenant, its
subtenants, shall be liable to the other party or to any insurance company (by
way of subrogation or otherwise) insuring the other party for any loss or damage
to any building, structure or other tangible property normally covered under a
standard policy of insurance for fire, theft and extended coverage, or losses
under workers' compensation law and benefits, even though such loss or damage
might have been occasioned by the negligence of such party, its agents or
employees; provided, however, that if, by reason of the foregoing waiver, either
party shall be unable to obtain any such insurance, such waiver shall be deemed
not to have been made by such party and, provided, further, that if either party
shall be unable to obtain any such insurance without the payment of an
additional premium therefor, then, unless the party claiming the benefit of such
waiver shall agree to pay such party for the cost of such additional premium
within thirty (30) days after notice setting forth such
-8-
requirement and the amount of the additional premium, such waiver shall be of no
force and effect between such party and such claiming party.
10.2 Public Liability Insurance: Tenant, as its expense, shall maintain
--------------------------
at all times during the term of this Lease, public liability insurance in
respect of the Premises and the conduct or operation of business therein, with
Landlord and its managing agent, if any, and any Superior Lessor or Superior
Mortgagee whose name and address shall previously have been furnished to Tenant,
as additional insureds, with One Million and No/100 Dollars ($1,000,000.00)
minimum combined single limit coverage, or its equivalent. All such insurance
shall insure the performance by Tenant of the indemnity agreement as to
liability for injury to, illness of, or death of persons and damage to property
set forth in Section 17. Tenant shall deliver to Landlord and any additional
insured such fully paid for policies or certificates of insurance, in form
satisfactory to Landlord insured by the insurance company or its authorized
agent, at least ten (10) days before the Commencement Date. Tenant shall procure
and pay for renewals of such insurance from time to time before the expiration
thereof, and Tenant shall deliver to Landlord and any additional insured such
renewal policy or certificate at least thirty (30) days before the expiration of
any existing policy. All such policies shall contain a provision whereby the
same cannot be canceled or modified unless Landlord and any additional insured
is given at least twenty (20) days prior written notice of such cancellation or
modification.
10.3 Acceptable Insurance Companies: All insurance policies required to
------------------------------
be carried by Tenant hereunder shall be issued by responsible insurance
companies authorized to issue insurance in the State of Oregon rated B VII or
higher by Best's Insurance Rating Service.
10.4 Increase in Coverage: Landlord may from time to time, but not more
--------------------
frequently than once every three (3) years, require that the amount of public
liability insurance to be maintained by Tenant under Section 10.2 be increased
so that the amount thereof adequately protects the Landlord's interest based on
amounts of coverage required of comparable tenants in comparable buildings.
SECTION 11. RULES AND REGULATIONS:
----------- ---------------------
Tenant shall faithfully observe and comply with the rules and
regulations printed on or annexed to this Lease as EXHIBIT E and all reasonable
---------
modifications thereof and additions thereto from time to time established by
Landlord by written notice to Tenant. Landlord shall not be responsible for the
nonperformance by any other Tenant or occupant of the Building of any said rules
and regulations but Landlord shall use reasonable efforts to remedy any
violation of the rules and regulations applicable to any other Building occupant
upon Tenant's request.
SECTION 12. ALTERATIONS:
----------- -----------
12.1 Requirements: Tenant shall not make or suffer to be made any
------------
alterations, additions, or improvements in, on, or to the Premises or any part
thereof without the prior written consent of Landlord. Any such alterations,
additions, or improvements in, on, or to said Premises, except for Tenant's
movable furniture and equipment, shall immediately become Landlord's property
and, at the end of the term hereof, shall remain on the Premises without
compensation to Tenant. In the event Landlord consents to the making of any such
alterations, additions, or improvements by Tenant, the same shall be made by
Tenant, at Tenant's sole cost and expense, in accordance with plans and
specifications approved by Landlord, and any contractor or person selected by
Tenant to make the same must first be approved in writing by Landlord. If the
alterations, additions or improvements shall be made by Landlord for Tenant's
account, Tenant shall reimburse Landlord for the cost thereof within twenty (20)
days after receipt of a statement, setting forth the actual cost of such
alterations, additions or improvements. In any event Tenant shall pay Landlord
an administrative charge of fifteen percent (15%) of the actual cost of such
alterations, additions or improvements. After the expiration or sooner
termination of the Lease Term and upon demand by Landlord, Tenant shall remove
any or all alterations, additions, or improvements made by or for the account of
Tenant, designated by Landlord to be removed, and Tenant shall repair and
restore the Premises to their original condition, subject to ordinary wear and
tear. Such removal, repair and restoration work shall be done promptly and with
all due diligence at Tenant's sole cost and expense. The provisions of this
Section 12 shall not apply to the initial Tenant Improvements described in
Exhibit C to this Lease.
-9-
12.2 Indemnification of Landlord: Tenant, at its expense, and with
---------------------------
diligence and dispatch, shall procure the cancellation or discharge of all
notices of violation arising from or otherwise connected with alterations, or
any other work, labor, services or materials done for or supplied to Tenant, or
any other person claiming through or under Tenant, which shall be issued by any
public authority having or asserting jurisdiction. Tenant shall defend,
indemnify and save harmless Landlord and any Superior Lessor or Superior
Mortgagee from and against any and all mechanic's and other liens and
encumbrances filed in connection with alterations, or any other work, labor,
services or materials done for or supplied to Tenant, or any person claiming
through or under Tenant, including without limitation, security interests in any
materials, fixtures or articles so installed in and constituting part of the
Premises and against all costs, expenses and liabilities incurred in connection
with any such lien or encumbrance or any action or proceeding brought thereon.
Tenant, at its expense, shall procure the satisfaction or discharge of record of
all such liens and encumbrances within fifteen (15) days after the filing
thereof. Nothing herein contained shall prevent Tenant from contesting, in good
faith and at its own expense, any notice of violation, or lien provided Tenant
posts for the protection of Landlord security acceptable to Landlord.
SECTION 13. LANDLORD'S AND TENANT'S PROPERTY:
----------- --------------------------------
13.1 Landlord's Property: All fixtures, carpeting equipment,
-------------------
improvements and appurtenances attached to or built into the Premises at the
commencement of or during the term of this Lease, whether or not by or at the
expense of Tenant, shall be and remain a part of the Premises, shall be deemed
the property of landlord and shall not be removed by Tenant, except as provided
in Section 13.2; provided, that at Landlord's written request, Tenant shall, at
its sole expense and upon termination of the Lease, remove those items specified
by Landlord, including any or all fixtures, equipment, improvements,
appurtenances and other personal property, which are deemed herein the property
of Landlord, but not including the initial Tenant Improvements provided by
Landlord pursuant to Exhibit C of this Lease. Tenant's covenant to remove
property specified by Landlord shall survive the termination of this Lease.
13.2 Tenant's Property: All unattached business and trade fixtures,
-----------------
machinery and equipment, communications equipment and office equipment which are
installed in the Premises by or for the account of Tenant without expense to
Landlord and which can be removed without structural damage to the Building and
all furniture, furnishings (excluding window coverings) and other articles of
movable personal property owned by Tenant and located in the Premises (herein
collectively called "Tenant's Property") shall be and remain the property of
Tenant and may be removed by Tenant at any time during the term of this Lease;
provided, that if any of Tenant's Property is removed, Tenant shall repair or
pay the cost of repairing any damage to the Premises or to the Building
resulting from the installation and/or removal thereof. Any equipment or other
property for which Landlord shall have granted any allowance or credit to Tenant
shall be deemed not to have been installed by or for the account of Tenant
without expense to Landlord, shall not be considered Tenant's Property, and
shall be deemed the property of Landlord.
13.3 Abandonment: Any items of Tenant's Property which shall remain in
-----------
the Premises after the expiration date of this Lease, or after a period of
fifteen (15) days following an earlier termination date, at the option of
Landlord, may be deemed to have been abandoned, and in such case such items may
be retained by Landlord, without accountability, in such manner as Landlord
shall determine at Tenant's expense.
SECTION 14. SERVICES AND UTILITIES:
----------- ----------------------
14.1 Building Maintenance: Landlord shall maintain the Building,
--------------------
including public and common areas of the Building, such as the lobbies, stairs,
elevators, corridors and rest rooms, the windows in the Building, the
mechanical, plumbing and electrical equipment serving the Building, and the
structure itself, in reasonably good order and condition except for damage
occasioned by the act of the Tenant, which damage shall be repaired by Landlord
at Tenant's expense.
14.2 Utilities: Provided the Tenant shall not be in default hereunder,
---------
and subject to the provisions elsewhere herein contained and to the rules and
regulations of the Building, Landlord agrees to furnish to the Premises from
7:00 A.M. to 6:00 P.M. on weekdays and 8:00 A.M. to 1:00 P.M. on Saturdays,
exclusive of legal holidays, water and electricity suitable for the intended use
of the Premises, heat and air-conditioning required in Landlord's reasonable
judgment for the comfortable use and occupation of the Premises, janitorial
services during
-10-
the times and in the manner that such services are, in Landlord's reasonable
judgment, customarily furnished in comparable office buildings in the immediate
market area, and elevator service which shall mean service by unattended
automatic elevators. Landlord shall provide additional or after-hours heating or
air-conditioning at Tenant's request, and Tenant shall pay to landlord a
reasonable charge for such services as determined by Landlord. Tenant agrees to
keep and cause to be kept closed all window coverings when necessary because of
the sun's position, and Tenant also agrees at all times to cooperate fully with
Landlord and to abide by all the regulations and requirements which Landlord may
prescribe for the proper functioning and protection of the heating, ventilating,
and air-conditioning system. Wherever heat-generating machines, excess lighting
or equipment are used in the Premises which affect the temperature otherwise
maintained by the air-conditioning system, Landlord reserves the right to
install supplementary air-conditioning units in the Premises, and the cost
thereof, including the cost of installation and the cost of operation and
maintenance thereof, shall be paid by Tenant to Landlord upon demand by
Landlord. Any sums payable under Section 14 shall be considered Additional Rent
and may be added to any installment of Base Rent thereafter becoming due, and
Landlord shall have the same remedies for a default in payment of such sum as
for a default in the payment of Base Rent.
14.3 Excess Usage: If Tenant uses excessive amounts of non-metered
------------
utilities or services of any kind because of operation outside of normal
Building hours, high demands from office machinery and equipment, nonstandard
lighting, or any other cause, Landlord may impose a reasonable charge, currently
estimated at $12.00 per hour for supplying such extra utilities services, which
charge shall be payable monthly by Tenant in conjunction with Rent payments.
Landlord may install in the Premises a special meter to measure the amount of
water, electric current or other resource consumed for any such other use. In
case of dispute over any extra charge under this paragraph, Landlord shall
designate a qualified independent engineer whose decision shall be conclusive on
both parties. The party not prevailing in such dispute shall pay the cost of
such engineer's determination.
14.4 Disclaimer: Landlord shall not be in default hereunder or be liable
----------
for any damages directly or indirectly resulting from, or by reason of (i) the
installation, use or interruption of use of any equipment in connection with the
furnishing of the foregoing utilities and services, (ii) failure to furnish or
delay in furnishing any such utilities or services when such failure or delay is
caused by acts of God or the elements, labor disturbances of any character, any
other accidents or other conditions beyond the reasonable control of Landlord,
or by the making of repairs or improvements to the Premises or the Building, or
(iii) the limitation, curtailment, rationing or restriction on use of water or
electricity, gas or any other form of energy or any other service or utility
whatsoever serving the Premises or the Building. Furthermore, Landlord shall be
entitled to cooperate voluntarily in a reasonable manner with the efforts of
national, state or local governmental agencies or utilities suppliers in
reducing energy or other resource consumption. Rent shall be abated in
accordance with the terms of Section 18 due to the occurrence of any of the
foregoing conditions which are covered b Landlord's insurance.
14.5 Use of Common Areas and Facilities: All common facilities and areas
----------------------------------
furnished by Landlord in or near the Building, including parking areas, lighting
facilities, pedestrian sidewalks and ramps, landscaped areas, exterior
stairways, rest rooms and other areas and improvements provided by Landlord for
the general use, in common, of tenants, their officers, agents, employees and
customers shall at all times by subject to the exclusive control and management
of Landlord. Without limiting the scope of such discretion, Landlord shall have
the full right and authority to employ all personnel and to establish, modify
and enforce reasonable rules and regulations necessary for the proper operation
and maintenance of common areas and facilities. Landlord shall have the right
to close all or any portion of the common areas or facilities to such extent as,
in the opinion of Landlord's legal counsel, may be legally sufficient to prevent
a dedication thereof or the accrual of any rights to any person (other than
Tenant) or the public therein; and to do and perform such other acts in and to
said areas and improvements as the Landlord shall reasonably determine to be
advisable. If the common area of this Building includes surface parking areas
on the Land, then at all times Tenant's use (including use by Tenant or Tenant's
employees, agents, invitees and licensees) of such surface parking area shall
not exceed the Tenant's percentage of the Building as specified in the Basic
Lease Information. All common areas and facilities not within the Premises,
which Tenant may be permitted to use and occupy, are to be used and occupied
under a revocable license, and if the amount of such areas be diminished,
Landlord shall not be subject to any liability nor shall Tenant be entitled to
any compensation or diminution or abatement of Rent, nor shall such diminution
of such areas be deemed constructive or actual eviction.
14.6 Signage: Landlord shall provide tenant, at no additional charge,
-------
Building standard signage.
-11-
14.7 Mailbox: Landlord shall furnish Tenant, without additional charge,
-------
a locked mailbox in the Building.
SECTION 15. ACCESS AND NAME:
----------- ---------------
Landlord reserves and shall at all times have the right to re-enter the
Premises upon 24 hours' prior notice to Tenant (except in an emergency) to
inspect the same, to supply janitor service and any other service to be provided
by Landlord to Tenant hereunder, to show said Premises to prospective
purchasers, mortgagees or tenants, to post notices of nonresponsibility, and to
alter, improve or repair the Premises and any portion of the Building of which
the Premises are a part, without abatement of Rent. Landlord may for such
purpose erect, use and maintain scaffolding, pipes, conduits and other necessary
structures in and through the Premises where reasonably required by the
character of the work to be performed, provided that entrance to the Premises
shall to be blocked thereby, and further provided that the business of Tenant
shall not be interfered with unreasonably. Tenant hereby waives any claim for
damages for any injury or inconvenience to or interference with Tenant's
business, any loss of occupancy or quiet enjoyment of the Premises and any other
loss occasioned by Landlord's conduct pursuant to this Section. For each of the
purposes stated in this Section, Landlord shall at all times have and retain a
key with which to unlock all of the doors in, upon and about the Premises,
excluding Tenant's vaults and safes or special security areas (designated in
advance). Landlord shall have the right to use any and all means which Landlord
may deem necessary or proper to open all doors in an emergency, in order to
obtain entry to any portion of the Premises, and any entry to any portion of the
Premises obtained by Landlord by any such means, or otherwise shall not under
any circumstances by construed or deemed to be a forcible or unlawful entry
into, or a detainer of, the Premises, or an eviction, actual or constructive, of
Tenant from all or part of the Premises. Landlord shall also have the right at
any time, without the same constituting an actual or constructive eviction and
without incurring any liability to Tenant, to change the arrangement and/or
location of entrances or passageways, doors and doorways, corridors, elevators,
stairs, toilets or other public parts of the Building and to change the name,
number or designation by which the building is commonly known.
SECTION 16. NOTICE OF OCCURRENCES:
----------- ---------------------
Tenant shall give prompt notice to Landlord of: (i) any occurrence
in or about the Premises for which Landlord might be liable; (ii) any fire or
other casualty in the Premises; (iii) any damage to or defect in the Premises
including the fixtures, equipment and appurtenances thereof, for the repair of
which Landlord might be responsible; and (iv) damage to or defect in any part or
appurtenances of the Building's sanitary, electrical, heating, ventilating, air-
conditioning, elevator or other systems located in or passing through the
Premises or any part thereof.
SECTION 17. NONLIABILITY AND INDEMNIFICATION:
----------- ---------------------------------
17.1 Waiver: Landlord shall not be liable for any loss or damage to
------
person or property sustained by Tenant, or other persons, which may be caused by
theft, or by any act or neglect of any tenant of the Building or by any other
person in or about the Building. Neither Landlord nor any partner, director,
officer, agent, servant or employee of Landlord shall be liable to Tenant for
any loss, injury or damage to Tenant or to any other person, or to its or their
property, irrespective of the cause of such injury, damage or loss, except to
the extent caused by or resulting from the negligence or intentionally wrongful
act or intentionally wrongful omission of Landlord, its agents servants or
employees in the operation or maintenance of the Premises or the Building.
Further, neither Landlord nor any partner, director, officer, agent, servant or
employee of Landlord shall be liable: (i) for any such damage caused by other
tenants or persons in, upon or about the Building, or caused by operations in
construction of any private, public or quasi-public work; or (ii) even if
negligent, for consequential damages, including lost profits, of Tenant or any
person claiming through or under Tenant.
17.2 Indemnification: Tenant shall indemnify and hold harmless Landlord
---------------
and all Superior Lessors and/or Superior Mortgagees and its and their respective
partners, directors, officers, agents and employees from and against any and all
third part claims for bodily injury and/or property damage arising from or in
connection with any accident, injury or damage whatever (even if caused by
Landlord's negligence or breach of this Lease) occurring in, at or upon the
Premises; together with all costs, expenses and liabilities incurred or in
connection with each such claim or action or proceeding brought thereon,
including, without limitation, all attorneys' fees and expenses at trial
-12-
and upon appeal. Landlord shall indemnify and hold harmless Tenant and its
directors, officers, agents and employees from and against any and all third
party claims for bodily injury and/or property damage arising from or in
connection with any accident, injury or damage whatever (even if caused by
Tenant's negligence or breach of this Lease) occurring in, at or upon the common
areas of the Land and the Building; together with all costs, expenses and
liabilities incurred or in connection with each such claim or action or
proceeding brought thereon, including, without limitation, all attorneys' fees
and expenses at trial and upon appeal. The foregoing indemnity obligations of
the parties shall be limited to the amount of liability insurance coverage
required of Tenant under Section 10 of this Lease.
17.3 Duty to Defend: In case any action or proceeding is brought
--------------
against Landlord and/or any Superior Lessor and/or Superior Mortgagee and/or its
or their partners, directors, officers, agents and/or employees and such claim
is a claim from which Tenant is obligated to indemnify Landlord pursuant to
Section 17.2, Tenant, upon notice from Landlord or such Superior Lessor or
Superior Mortgagee, shall resist and defend such action or proceeding (by
counsel reasonably satisfactory to Landlord). The obligation of Tenant under
this Section 17 shall survive termination of this Lease. In case any action or
proceeding is brought against Tenant and/or its directors, officers, agents
and/or employees and such claim is a claim from which Landlord is obligated to
indemnify Tenant pursuant to Section 17.2, Landlord, upon notice from Tenant,
shall resist and defend such action or proceeding (by counsel reasonably
satisfactory to Tenant). The obligation of Landlord under this Section 17 shall
survive termination of this Lease.
SECTION 18. DAMAGE OR DESTRUCTION:
----------- ---------------------
18.1 Casualty: If the Premises or the Building are damaged by fire or
--------
other casualty, Landlord shall forthwith repair the same unless this Lease is
terminated as permitted herein. Within twenty (20) days from the date of such
damage, Landlord shall notify Tenant if the Building is damaged in excess of
twenty-five percent (25%) of the Building's precasualty value, as reasonably
determined by Landlord (damage in excess of such amount being referred to as
"Major Damage" and damage equal to or less than such amount being referred to as
"Minor Damage"). If Major Damage occurs, Landlord may elect to terminate the
Lease. If Minor Damage occurs then Landlord shall repair such damage and
rebuild that portion of the Building or the Premises damaged. In the event of
Major Damage, if Landlord gives its written notice to Tenant electing to rebuild
or in the event of Minor Damage, this Lease shall remain in full force and
effect provided the repairs are completed within one hundred twenty (120) days
except the Rent shall be reasonably abated during the period of repair based on
that portion of the Premises not reasonably usable by Tenant. If in the event
of Major Damage, Landlord elects by written notice to Tenant not to rebuild,
then this Lease shall automatically terminate as of the effective date of such
notice, the Rent shall be reduced by a proportionate amount based upon the
extent to which said damage interfered with the business carried on by Tenant in
the Premises, and the Tenant shall pay such reduced Rent up to the date of
termination. Landlord agrees to refund to Tenant any Rent previously paid for
any period of time subsequent to such date of termination. Landlord shall not
be required to repair any damage by fire or other cause to the property of
Tenant and any paneling, decorations, railings, floor coverings, or any
alterations, additions, fixtures or improvements installed on the Premises by or
at the expense of the Tenant.
18.2 Condemnation: If more than twenty-five percent (25%) of the Land
------------
and/or Building shall be taken or appropriated under the power of eminent domain
or conveyed in lieu thereof, Landlord shall have the right to terminate this
Lease. If such taking renders the Premises unsuitable for the conduct of
Tenant's business then Tenant shall have the right to terminate this Lease. If
this Lease is terminated, Landlord shall receive (and Tenant shall assign to
Landlord upon demand from Landlord) any and all income, rent, award or any
interest thereon which may be paid or owed in connection with the exercise of
such power of eminent domain or conveyance in lieu thereof, and Tenant shall
have no claim against the agency exercising such power or receiving such
conveyance, for any part of such sum paid by virtue of such proceedings, whether
to not attributable to the value of the unexpired term of this Lease except for
the unamortized value of Tenant Improvements paid for by Tenant and relocation
benefits, if any. If a part of the Land and/or Building shall be so taken or
appropriated or conveyed and Landlord hereto shall elect not to terminate this
lease, Landlord shall nonetheless receive (and Tenant shall assign to Landlord
upon demand from Landlord) any and all income, rent, award or any interest
thereon paid or owed in connection with such taking, appropriation or
conveyance; and if the Premises have been damaged as a consequence of such
partial taking or appropriation or conveyance, Landlord shall restore the
Premises and this Lease shall remain in full force and effect except that Tenant
shall be entitled to an appropriate reduction in Rent while such restoration is
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being made by Landlord. Such proportionate reduction shall be based upon the
extent to which the restoration being made by Landlord shall interfere with the
business carried on by Tenant in the demised Premises. Landlord will not be
required to repair or restore any injury or damage to the property of Tenant or
make any repairs or restoration to any alterations, additions, fixtures or
improvements installed in the Premises by or at the expense of Tenant.
SECTION 19. SURRENDER AND HOLDING OVER:
----------- --------------------------
19.1 General: On the last day of the term of this Lease, or upon
-------
re-entry by Landlord upon the Premises, Tenant shall quit and surrender the
Premises to Landlord "broom-clean" and in good order, condition and repair,
except for ordinary wear and tear in accordance with the provisions of Section
13 of this Lease.
19.2 Surrender: No agreement relating to the surrender of the Premises
---------
by Tenant shall be valid unless in writing and signed by Landlord.
19.3 Holding Over with Consent: Any holding over after the expiration
-------------------------
of the term of this Lease with the written consent of the Landlord shall be a
tenancy from month to month. The terms, covenants and conditions of such
tenancy shall be the same as provided herein, and the monthly Rent shall be the
then fair market rent for the Premises as determined by Landlord, subject to
adjustment as provided in Section 4 herein. Acceptance by Landlord of Rent
after such expiration shall not result in any other tenancy or any renewal of
the term of this Lease, and the provisions of this Section are in addition to
and do not affect Landlord's right of re-entry or other rights provided under
this Lease or by applicable law.
19.4 Holding Over Without Consent: If Tenant shall retain possession of
----------------------------
the Premises or any part thereof without Landlord's consent following the
expiration or sooner termination of this Lease for any reason, then Tenant shall
pay to Landlord for each day of such retention double the amount of the daily
Rent for the last period prior to the date of such expiration or termination,
subject to adjustment as provided in Section 4. Tenant shall also indemnify and
hold Landlord harmless from any loss or liability resulting from delay by Tenant
in surrendering the Premises, including, without limitation, any claims made by
any succeeding tenant founded on such delay. Alternatively, if Landlord gives
notice to Tenant of Landlord's election thereof, such holding over shall
constitute renewal of this Lease for a period from month to month. Acceptance
of Rent by Landlord following expiration or termination shall not constitute a
renewal of this Lease, and nothing contained in this Section shall waive
Landlord's right of re-entry or any other right. Unless Landlord exercises the
option hereby given to it, Tenant shall be only a Tenant at sufferance, whether
or not Landlord accepts any Rent from Tenant while Tenant is holding over
without Landlord's written consent.
SECTION 20. EVENTS OF DEFAULT:
----------- -----------------
20.1 Events of Default: The occurrence of any one or more of the
-----------------
following events of default shall constitute a breach of this Lease by Tenant:
20.1.1 If Tenant shall default in the payment of any security
deposit, Base Rent or Additional Rent, and such default shall continue for ten
(10) days after Landlord shall have given Tenant a notice specifying the same;
or
20.1.2 If Tenant shall, whether by action or inaction, be in
default of any of its obligations under this Lease (other than a default in the
payment of Base Rent or Additional Rent) and such default shall continue and not
be remedied within twenty (20) days after Landlord shall have given to Tenant a
notice specifying the same, or, in the case of a default which cannot with due
diligence be cured within a period of twenty (20) days and the continuance of
which for the period required for cure will not subject Landlord or any Superior
Lessor to prosecution for a crime or termination of any Superior Lease or
foreclosure of any Superior Mortgage, if Tenant shall not, (i) within said
twenty (20) day period advise Landlord of Tenant's intention to take all steps
necessary to remedy such default; (ii) duly commence within said twenty (20) day
period, and thereafter diligently prosecute to completion all steps necessary to
remedy the default; and (iii) complete such remedy within a reasonable time
after the date of said notice of Landlord; or
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20.1.3 If any event shall occur or any contingency shall arise
whereby this Lease or the estate hereby granted or the unexpired balance of the
term hereof would, by operation of law or otherwise, devolve upon or pass to any
person, firm or corporation other than Tenant, except as expressly permitted by
Section 9; or
20.1.4 If tenant shall vacate or abandon the Premises; or
20.1.5 If Tenant or any guarantor of Tenant's obligations shall
make a general assignment for the benefit of creditors, or shall be unable to
pay its debts as they become due, or shall file a petition in bankruptcy, or
shall be adjudicated as bankrupt or insolvent, or shall file a petition seeking
any reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any present or future statue, law or
regulation, or shall file an answer admitting or shall fail timely to contest
the material allegations of a petition filed against it in any such proceeding,
or shall seek or consent to or acquiesce in the appointment of any trustee,
receiver or liquidator of Tenant or any material part of its properties; or
20.1.6 If within ninety (90) days after the commencement of any
proceeding against Tenant seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any present or
future statue, law or regulation, such proceeding shall not have been dismissed
or if, within ninety (90) days after the appointment without the consent or
acquiescence of Tenant of any trustee, receiver or liquidator of Tenant or of
any material part of its properties, such appointment shall not have been
vacated; or
20.1.7 If this Lease or any estate of Tenant hereunder shall be
levied upon under any attachment or execution and such attachment or execution
is not vacated within ten (10) days.
20.2 Limitation of Tenant Right to Notice: During any twelve (12) month
------------------------------------
period, Tenant shall be entitled to only two (2) notices pursuant to Section
20.1.1 and one (1) notice each for the same type of default pursuant to Section
20.1.2.
SECTION 21. REMEDIES UPON DEFAULT:
----------- ---------------------
21.1 Remedies: Upon the occurrence of an event of default constituting
--------
a breach of this Lease under Section 20, Landlord may exercise any one or more
of the remedies set forth in this Section 21 or in Section 24, or any other
remedy available under applicable law or contained in this Lease.
21.1.1 Landlord or Landlord's agents and employees may immediately
or at any time thereafter re-enter the Premises, or any part thereof, either by
summary eviction proceedings or by any suitable action or proceeding at law, or
by force to otherwise, without being liable to indictment, prosecution or
damages therefor, and may repossess the same, and may remove any person
therefrom, to the end that Landlord may have, hold and enjoy the Premises.
21.1.2 Landlord at its option may relet the whole or any part of
the Premises from time to time, either in the name of the Landlord or otherwise,
to such tenants, 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, tenant improvements, and free rent periods) as Landlord may
determine to be appropriate. Landlord at its option may make such physical
changes to the Premises as Landlord considers advisable or necessary in
connection with any such reletting or proposed reletting, without relieving
Tenant of any liability under this Lease or otherwise affecting Tenant's
liability. If there is other unleased space in the Building, Landlord may lease
such other space without prejudice to its remedies against the Tenant.
21.1.3 Whether or not Landlord retakes possession or relets the
Premises, Landlord shall have the right to recover unpaid rent and all damages
caused by the default, including attorneys' fees. Damages shall include, without
limitation: (i) all rentals lost; (ii) all legal expenses and other related
costs incurred by Landlord following Tenant's default; (iii) all costs incurred
by Landlord in restoring the Premises to good order and condition, or in
remodeling, renovating or otherwise preparing the Premises for reletting; and
(iv) all costs incurred by Landlord in reletting the Premises, including,
without limitation, any brokerage commissions and the value of Landlord's time.
-15-
21.1.4 To the extent permitted under Oregon law, Landlord may xxx
periodically for damages as they accrue without barring a later action for
further damages. Landlord may in one action recover accrued damages plus damages
attributable to the remaining Lease Term equal to the difference between the
rent reserved in this Lease (including an estimated amount of Additional Rent as
determined by Landlord) for the balance of the Lease Term after the time of
award, and the fair rental value of the Premises for the same period, discounted
to the time of award at the rate of nine percent (9%) per annum. If Landlord has
relet the Premises for the period which otherwise would have constituted the
unexpired portion of the Lease Term or any part, the amount of rent reserved
upon such reletting shall be deemed, prima facie, to be the fair and reasonable
rental value for the part or the whole of the Premises so relet during the term
of the reletting.
21.2 Cumulative Remedies: The remedies provided for in this Lease are
-------------------
cumulative and are not intended to be exclusive of any other remedies to which
Landlord may lawfully be entitled at any time, and Landlord may invoke any
remedy allowed at law or in equity, including an action for specific
performance, as if specific remedies were not provided for herein. In the event
of a breach or threatened breach by Tenant of any of its obligations under this
Lease, Landlord shall also have the right to obtain an injunction and any other
appropriate equitable relief.
21.3 Termination: Even though Tenant has breached this Lease, the Lease
-----------
shall continue in effect for so long as Landlord does not agree in writing to
terminate Tenant's continuing contractual liability, and Landlord may enforce
all its rights and remedies under this Lease, including the right to recover the
rent as it becomes due under this Lease. Acts of maintenance or preservation or
efforts to relet the Premises or the appointment of a receiver upon initiative
of Landlord to protect Landlord's interest under this Lease shall not constitute
a termination of Tenant's right to possession except to the extent required
otherwise under Oregon law or unless written notice of termination is given by
Landlord to Tenant.
21.4 Interest on Damages: In addition to any other remedies Landlord
-------------------
may have under this Lease, and without reducing or adversely affecting any of
Landlord's rights and remedies under this Section 21, if any Base Rent,
Additional Rent or damages payable hereunder by Tenant to Landlord are not paid
within five (5) days after demand therefor, the same shall bear interest at the
annual rate of fifteen percent (15%) or the maximum rate permitted by law,
whichever is less, calculated monthly from the due date thereof until paid, and
the amount of such interest shall be included as Additional Rent hereunder.
SECTION 22. SERVICES IN THE EVENT OF DEFAULT:
----------- --------------------------------
In addition to any rights and remedies which Landlord may have
under this Lease, if there shall be a default hereunder by Tenant which shall
not have been remedied within the applicable grace period, Landlord shall not be
obligated to furnish Tenant or the Premises any heat, ventilation or air-
conditioning services outside of business hours on business days, or any extra
or additional cleaning services; and the discontinuance of any one or more such
services shall be without liability by Landlord to Tenant and shall not reduce,
diminish or otherwise affect any of Tenant's covenants and obligations under
this Lease.
SECTION 23. NO WAIVERS OF PERFORMANCE:
----------- -------------------------
The failure of either party to insist in any one or more instances
upon the strict performance of any one or more of the obligations of this Lease,
or to exercise any election herein contained, shall not be construed as a waiver
or relinquishment for the future of the performance of such one or more
obligations or any other obligations of this Lease or of the right to exercise
such election, but the same shall continue and remain in full force and effect
with respect to any subsequent breach, act or omission. The receipt by Landlord
of Rent with knowledge of a breach by Tenant of any obligation of this Lease
shall not be deemed a waiver of such breach.
SECTION 24. CURING TENANT'S DEFAULTS:
----------- ------------------------
All covenants and agreements to be performed by the Tenant under
any of the terms of this Lease shall be performed by Tenant at Tenant's sole
cost and expense and without any abatement of Rent except as expressly provided
otherwise herein. If the Tenant shall fail to pay any sum money, other than
Rent, required to be
-16-
paid by it hereunder or shall fail to perform any other act on its part to be
performed hereunder, and such failure shall continue for the periods referred to
in Section 20 hereof after notice thereof by the Landlord, the Landlord may make
any such payment or perform any such act on the Tenant's part to be made or
performed as in this Lease provided but shall not be obligated so to do. Any
such payment or performance shall not be a waiver or release of Tenant's
obligations. All sums so paid by the Landlord and all necessary incidental costs
together with interest thereon at the rate specified in Section 21.4 from the
date of such payment by the Landlord shall be payable as Additional Rent to the
Landlord on demand, and the Tenant covenants to pay any such sums, and the
Landlord shall have, in addition to any other right or remedy of the Landlord,
the same rights and remedies in the event of the nonpayment thereof by the
Tenant as in the case of default by the Tenant in the payment of the Rent.
SECTION 25. BROKER:
----------- ------
Tenant covenants, warrants and represents that no broker except as
provided in the Basic Lease Information (the "Broker") was instrumental in
bringing about or consummating this Lease and that Tenant had no conversations
or negotiations with any broker except the Broker concerning the leasing of the
Premises. Tenant agrees to indemnify and hold harmless Landlord against and from
any claims for any brokerage commissions and all costs, expenses and liabilities
in connection therewith, including, without limitation, attorneys' fees and
expenses, arising out of any conversations or negotiations had by Tenant with
any broker other than the Broker. Landlord shall pay any brokerage commissions
due the Broker as per a separate agreement between Landlord and the Broker.
SECTION 26. NOTICES:
----------- -------
Any notice, statement, demand, consent, approval or other communication required
or permitted to be given, rendered or made by either party to the other,
pursuant to this Lease or pursuant to any applicable law or requirement of
public authority, shall be in writing (whether or not so stated elsewhere in
this Lease). Notices shall be deemed to have been properly given, rendered or
made: if delivered in persons to the Landlord or Tenant and receipt is
acknowledged; or, if sent postage prepaid by registered or certified mail,
return receipt requested, effective forty-eight (48) hours after posted in a
United States post office station or letter box in the continental United
States, addressed to the other party at the address designated by the party
(except that after the Commencement Date, Tenant's address, unless Tenant shall
give notice to the contrary, shall be the Building). Either party may, by
notice as aforesaid, designate a different address or addresses for notices,
statements, demands, consents, approvals or other communications intended for
it.
SECTION 27. ESTOPPEL CERTIFICATES:
----------- ---------------------
Each party agrees, at any time and from time to time, as requested
by the other party with not less than ten (10) days' prior notice, to execute
and deliver to the other a statement certifying that this Lease is unmodified
and in full force and effect (or if there have been modifications, that the same
is in full force and effect as modified and stating the modifications),
certifying the dates to which the Base Rent and Additional Rent have been paid,
stating whether or not, to the best knowledge of the signer, the other party is
in default in performance of any of its obligations under this Lease, and, if
so, specifying each such default of which the signer shall have knowledge, and
stating whether or not, to the best knowledge of the signer, any event has
occurred which with the giving of notice or passage of time, or both, would
constitute such a default, and, if so, specifying each such event, it being
intended that any such statement delivered pursuant hereto shall be deemed a
representation and warranty to be relied upon by the party requesting the
certificate and by others with whom such party may be dealing, regardless of
independent investigation. Tenant also shall include in any such statement such
other information concerning this Lease as Landlord may reasonably request. If
either party fails to respond within fifteen (15) days of receipt by the party
of a written request for such a statement, the party shall be deemed to have
given such statement and shall be deemed to have admitted the accuracy of any
information contained in the request for such statement and that the Lease is
unmodified and in full force and effect, that there are not uncured defaults in
Landlord's performance, and that not more than one (1) month's rent has been
paid in advance.
SECTION 28. MEMORANDUM OF LEASE:
----------- -------------------
Tenant shall not record this Lease. Upon ten (10) days prior
written notice from Landlord, Tenant shall execute, acknowledge and deliver to
Landlord a memorandum of lease in respect of this Lease sufficient for
-17-
recording. Such memorandum shall not be deemed to change or otherwise affect any
of the obligations or provisions of this Lease.
SECTION 29. RELOCATION OF PREMISES:
----------- ----------------------
In the event Landlord requires the Premises for use in conjunction
with another suite or other reasons connected with the Building planning
program, Landlord shall have the right, after first giving sixty (60) days
written notice to Tenant to move the Tenant to another space of similar size
within the building subject to Tenant's approval of such space which approval
shall not be unreasonably withheld. Such move shall be at the sole cost and
expense of Landlord, including but not limited to all costs and expenses related
to improving the space with leasehold improvements equal to those then in the
Premises, moving the furniture, office equipment and other contents of the
Premises to the new space, reinstating telecommunications equipment, printing of
new stationery, business cards and other printed matter bearing the address of
the Tenant and such other expenses as Tenant may incur, it being the intention
of the parties that Tenant incur no cost or expense as a result of the move.
After such move, all terms and conditions of Lease shall remain in full force
and effect, save and excepting that the Premises shall be the new space.
SECTION 30. ADJUSTMENT OF COMMENCEMENT AND EXPIRATION DATES:
----------- -----------------------------------------------
30.1 Commencement Date: The term of this Lease shall commence on a date
-----------------
(herein the "Commencement Date") which shall be the date specified in the Basic
Lease Information unless:
30.1.1 Landlord notifies Tenant of an earlier or later
Commencement Date at least thirty (30) days in advance; or
30.1.2 Tenant actually occupies the Premises earlier than the date
specified in the Basic Lease Information or any notice given pursuant to Section
30.1.1, in which event the occupancy date shall be the Commencement Date.
30.2 Tenant Obligations: If the Premises are not ready for Tenant's
------------------
occupancy by the Commencement Date (as specified in the Basic Lease Information)
due to the fault of the Landlord or due to the occurrence of an event of force
of majeure, the Base Rent and Additional Rent payable hereunder shall be abated
for the time period of such delay. However, regardless of when the Commencement
Date occurs, and subject only to the rent abatement provisions of section 18.1,
rent shall commence no later than one hundred eighty (180) days after the Date
of Lease Document Issuance specified in the Basic Lease Information and shall
continue except to the extent of any period of rent-free occupancy specified in
the Basic Lease Information. If the Tenant Improvements are not completed on the
Commencement Date due to the (i) the failure of Tenant to fulfill any obligation
pursuant to the terms of this Lease or any exhibit hereto, including without
limitation Tenant's failure to comply with the Construction Information
Submittal and Construction Approval Dates specified in the Basic Lease
Information; or (ii) any changes in the Tenant Improvements requested by Tenant,
then Tenant shall not be entitled to any abatement of rent due to such delay.
30.3 Tenant Termination Rights: In the event the Premises are not ready
-------------------------
for Tenant's occupancy within sixty (60) days of the Commencement Date specified
in the Basic Lease Information, because of the holding over or retention of
possession by any tenant, subtenant or occupant, or because of the fact that a
temporary or permanent certificate of occupancy has not been procured, or
because the Premises are not ready for occupancy for any other reason, Tenant
may terminate this Lease by written notice if Tenant is not responsible for the
delay; and provided, however, that such sixty (60) day period may at Landlord's
sole option be extended by any period, not to exceed ninety (90) days from the
Commencement Date specified in the Basic Lease Information for delays due to an
occurrence of any of the events of force of majeure described in Section 31.5,
casualties, acts of God, strikes, shortages of labor or materials or other
causes beyond the reasonable control of Landlord. If the Premises are not ready
for Tenant's occupancy within such ninety (90) day period, this Lease shall be
deemed null and void and all rights and obligations of the parties shall
terminate, and Landlord shall not be subject to any liability therefor.
Termination under this Section 30.3 shall be Tenant's sole remedy and Tenant
shall have no other rights or claims hereunder at law or in equity except that
Landlord shall return to Tenant promptly after any termination any rent
deposited previously with Landlord.
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30.4 Expiration Date: In the event the Commencement Date is adjusted to
---------------
a date other than as specified in the Basic Lease Information, then Landlord may
elect by written notice to make a comparable adjustment to the Expiration Date
provided that such adjustment shall include additional days to the extent
necessary for the Expiration Date to fall on the last day of a calendar month.
If such notice is not given, then the term of this Lease shall terminate, unless
sooner terminated by Landlord, on the Expiration Date set forth in the Basic
Lease Information.
30.5 Early Occupancy: If Landlord has given Tenant permission to enter
---------------
into the possession of the Premises prior to the Commencement Date, such
possession or occupancy shall be deemed to be upon all the terms, covenants,
conditions and provisions of this Lease, including, without limitation, the
payment of Base Rent and the Additional Rent.
SECTION 31. MISCELLANEOUS:
----------- -------------
31.1 Merger: All understandings and agreements heretofore had between
------
the parties are merged in this Lease and any other written agreement(s) made
concurrently herewith, which alone fully and completely express the agreement of
the parties and which are entered into after full investigation, neither party
relying upon any statement or representation not embodied in this Lease or any
other written agreement(s) made concurrently herewith.
31.2 Modifications: No agreement shall be effective to change, modify,
-------------
waive, release, discharge, terminate or effect an abandonment of this Lease, in
whole or in part, unless such agreement is in writing, refers expressly to this
Lease and is signed by the party against whom enforcement is sought. If Tenant
shall at any time request Landlord to sublet the Premises for Tenant's account,
Landlord or its agent is authorized to receive the keys for such purposes
without releasing Tenant from any of its obligations under this Lease, and
Tenant hereby releases Landlord of any liability for loss or damage to any of
the Tenant's Property in connection with such subletting.
31.3 Successors and Assigns: Except as otherwise expressly provided in
----------------------
this Lease, the obligations of this Lease shall bind and benefit the successors
and assigns of the parties hereto with the same effect as if mentioned in each
instance where a party is named or referred to; provided, however, that (i) no
violation of the provisions of Section 9 shall operate to vest any rights in any
successor or assignee of Tenant; and (ii) the provisions of this Section shall
not be construed as modifying the provisions of Sections 9 or 20.
31.4 Nonrecourse Lease: Tenant shall look only to Landlord's estate and
-----------------
property in the Land and the Building (or the proceeds thereof) for the
satisfaction of Tenant's remedies for the collection of a judgment (or other
judicial process) requiring the payment of money by Landlord in the event of any
default by Landlord hereunder, and no other property or assets of Landlord or
its partners or principals, disclosed or undisclosed, shall be subject to levy,
execution or other enforcement procedure for the satisfaction of Tenant's
remedies under or with respect to this Lease, the relationship of Landlord and
Tenant hereunder or Tenant's use or occupancy of the Premises.
31.5 Force Majeure: The obligations of Tenant hereunder shall be in no
-------------
wise affected, impaired or excused, nor shall Landlord have any liability
whatsoever to Tenant, because:
31.5.1 Landlord is unable to fulfill, or is delayed in fulfilling,
any of its obligations under this Lease by reason of strike, other labor
trouble, governmental pre-emption of priorities or other controls in connection
with a national or other public emergency or shortages of fuel, supplies or
labor resulting therefrom, or any other cause, whether similar or dissimilar,
beyond Landlord's reasonable control; or
31.5.2 Of any failure or defect in the supply, quantity or
character of electricity, water or other utilities furnished to the Premises, by
reason of any requirement, act or omission of the public utility or others
serving the Building with electric energy, steam, oil, gas, or water, or for any
other reason whether similar or dissimilar, beyond Landlord's reasonable
control.
31.6 Definitions: For the purpose of this Lease, the following terms
-----------
have the meanings indicated:
-19-
31.6.1 The term "mortgage" shall include a mortgage and/or deed of
trust, and the term "holder of a mortgage" or "mortgagee" or words of similar
import shall include a mortgagee of a mortgage or a beneficiary of a deed of
trust.
31.6.2 The term "laws and requirements and of any public
authorities" and words of similar import shall mean laws and ordinances of any
or all of the federal, state, city, town, county, borough and village
governments and rules, regulations, orders and directives of any and all
departments, subdivisions, bureaus, agencies or offices thereof, and of any
other governmental, public or quasi-public authorities having jurisdiction over
the Building and/or the Premises, and the direction of any public officer
pursuant to law, whether now or hereafter in force.
31.6.3 The term "requirements of insurance bodies" and words of
similar import shall mean rules, regulations, orders and other requirements of
the Oregon Surveying and Rating Bureau and/or any other similar body performing
the same or similar functions and having jurisdiction or cognizance over the
Building and/or the Premises, whether now or hereafter in force.
31.6.4 The term "Tenant" shall mean the Tenant herein named or any
assignee or other successor in interest (immediate or remote) of the Tenant
herein named, which at the time in question is the owner of the Tenant's estate
and interest granted by this Lease; but the foregoing provisions of this
subsection shall not be construed to permit any assignment of this Lease or to
relieve the Tenant herein named or any assignee or other successor in interest
(whether immediate or remote) of the Tenant herein named from the full and
prompt payment, performance and observance of the covenants, obligations and
conditions to be paid, performed and observed by Tenant under this Lease.
31.6.5 The term "Land" shall mean the real property lot or parcel
upon which the Building is located including without limitation parking areas,
landscaped areas, walkways, driveways, sidewalks and curbs.
31.6.6 The term "Landlord" shall mean only the owner at the time
in question of the Building or of a lease of the Building so that in the event
of any transfer or transfers of title to the Building or of Landlord's interest
in a lease of the Building, the transferor shall be and hereby is relieved and
freed of all obligations of Landlord under this Lease accruing after such
transfer, and it shall be deemed without further agreement that such transferee
has assumed and agreed to perform and observe all obligations of Landlord herein
during the period it is the holder of Landlord's interest under this Lease.
31.6.7 The term "herein," "hereof" and "hereunder," and words of
similar import, shall be construed to refer to this Lease as a whole, and not to
any particular Section, unless expressly so stated.
31.6.8 The term "and/or" when applied to two or more matters or
things shall be construed to apply to any one or more or all thereof as the
circumstances warrant at the time in question.
31.6.9 The term "person" shall mean natural person or persons, a
partnership, a corporation, and any other form of business or legal association
or entity.
31.7 Effect of Expiration: Upon the expiration or other termination of
--------------------
this Lease, neither party shall have any further obligation or liability to the
other except as otherwise expressly provided in this Lease and except for such
obligations as by their nature or under the circumstances can only be, or by the
provisions of this Lease, may be, performed after such expiration or other
termination; and, in any even, unless otherwise expressly provided in this
Lease, any liability for a payment (including, without limitation, Additional
Rent, herein) which shall have accrued to or with respect to any period ending
at the time of expiration or other termination of this Lease shall survive the
expiration or other termination of this Lease.
31.8 Modifications for Superior Mortgagee: If any Superior Mortgagee
------------------------------------
shall require any modification(s) of this Lease, Tenant upon ten (10) days prior
written notice of Landlord's request, shall execute and deliver to Landlord such
instruments effecting such modification(s) as Landlord shall require, provided
that such modification(s) do not adversely affect in any material respect any of
Tenant's rights under this Lease.
-20-
31.9 Excavation: If an excavation shall be made upon land adjacent to
----------
or under the Building, or shall be authorized to be made, Tenant shall afford to
the person causing or authorized to cause such excavation, license to enter the
Premises for the purpose of performing such work as said person shall deem
necessary or desirable to preserve and protect the Building from injury or
damage and to support the same by proper foundations, and without reducing or
otherwise affecting Tenant's obligations under this Lease.
31.10 Union Contracts: Tenant agrees that the exercise of its rights
---------------
pursuant to the provision of Section 12 or of any other provisions of this Lease
or the Exhibits hereto shall not be done in a manner which would violate
Landlord's union contracts affecting the Land and/or Building, nor create any
lawful work stoppage, picketing, labor disruption or any interference with the
business of Landlord or any tenant or occupant of the Building.
31.11 Prorations: Any apportionments or prorations of Base Rent or
----------
Additional Rent to be made under this Lease shall be computed on the basis of a
three hundred sixty (360) day year, with twelve (12) months of thirty (30) days
each.
31.12 Governing Law: Regardless of the place of execution or performance,
-------------
this Lease shall be governed by and construed in accordance with the laws of the
State of Oregon. If any provision of this Lease or the application thereof to
any person or circumstances shall, for any reason and to any extent, be invalid
or unenforceable, the remainder of this Lease and the application of that
provision to other persons or circumstances shall not be affected but rather
shall be enforced to the extent permitted by law. The table of contents,
captions, heading and titles in this Lease are solely for convenience or
reference and shall not affect its interpretation. Each covenant, agreement,
obligation or other provision of this Lease on Tenant's part to be performed,
shall be deemed and construed as a separate and independent covenant of Tenant,
not dependent on any other provision of this Lease. All terms and words used in
this Lease, regardless of the number or gender in which they are used, shall be
deemed to include any other number and any other gender as the context may
require. Time is of the essence of this Lease and all of its provisions.
31.13 Light Air and View: Any diminution or shutting off of light, air
------------------
or view by any structure which may be erected on lands adjacent to or near the
Building shall in no way affect this Lease or impose any liability on Landlord.
31.14 Tenant Representations: If Tenant is a corporation, each person
----------------------
executing this Lease on behalf of Tenant does hereby covenant and warrant that:
31.14.1 Tenant is duly incorporated and validly existing under the
laws of its state of incorporation, and, if such corporation is existing under
the laws of a jurisdiction other than Oregon, qualified to transact business in
Oregon;
31.14.2 Tenant has full corporate right and authority to enter
into this Lease and to perform all Tenant's obligations hereunder; and
31.14.3 Each person (and both of the persons if more than one
signs) signing this Lease on behalf of the corporation is duly and validly
authorized to do so.
31.15 Defined Terms: Words capitalized other than the first word of a
-------------
sentence are defined terms and have the meaning, throughout this Lease, given to
them when they are first used with an initial capital or when used in quotation
marks.
31.16 Counterparts: This Lease may be executed in one or more
------------
counterparts by separate signature, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument, binding
on all parties hereto, even though all parties are not signatories to the
original or the same counterpart. Any counterpart of this Lease that has
attached to it separate signature pages, which together contain the signatures
of all parties, shall for all purposes be deemed a fully executed instrument,
and in making proof of this Lease, it shall not be necessary to produce or
account for more than one such counterpart.
-21-
31.17 Costs and Attorney Fees:
-----------------------
31.17.1 No Suit or Action Filed. If this Lease is placed in the
-----------------------
hands of an attorney due to a default in the payment or performance of any of
its terms, the defaulting party shall pay, immediately upon demand, the other
party's reasonable attorney fees, collection costs even though no suit or action
is filed thereon, and any other fees or expenses incurred by the nondefaulting
party.
31.17.2 Arbitration or Mediation: Trial and Appeal. If any
-------------------------------------------
arbitration, mediation, or other proceeding is brought in lieu of litigation, or
if legal action is instituted to enforce or interpret any of the terms of this
Lease or if legal action is instituted in a Bankruptcy Court for a United States
District Court to enforce or interpret any of the terms of this Lease, to seek
relief from an automatic stay, to obtain adequate protection, or to otherwise
assert the interest of Landlord in a bankruptcy proceeding, the party not
prevailing shall pay the prevailing party's costs and disbursements, the fees
and expenses of expert witnesses in determining reasonable attorney fees
pursuant to ORCP 68, and such sums as the court may determine to be reasonable
for the prevailing party's attorney fees connected with the trial and any appeal
and by petition for review thereof.
31.17.3 Definitions. For purposes of this Contract, the term
-----------
attorney fees includes all charges of the prevailing party's attorneys and their
staff (including without limitation legal assistants, paralegals, word
processing, and other support personnel) and any postpetition fees in a
bankruptcy court. For purposes of this Contract, the term fees and expenses
includes but is not limited to long-distance charges; expenses of facsimile
transmission; expenses for postage (including costs of registered or certified
mail and return receipts), express mail, or parcel deliver; mileage and all
deposition charges, including but not limited to court reporters' charges,
appearance fees, and all costs of transcription; costs incurred in searching
records.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease Agreement
as of the date and year first above written.
LANDLORD TENANT
-------- ------
One Thousand Broadway Building L.P., Portland Software, Inc.
an Oregon Limited Partnership
BY: 1000 Inc.
General Partner
By: /s/ Xxxx Xxxxxxx By: /s/ Xxxxxxx Xxxxxxxx
----------------------------------- -------------------------------
Xxxxxxx Xxxxxxxx
Title: Vice President Title: Chairman, President & CEO
Date: 7/19/96 Date: 7/17/96
--------------------------------- -----------------------------
-22-
EXHIBIT A
ONE THOUSAND BROADWAY BUILDING LIMITED PARTNERSHIP
Legal Description for Land
--------------------------
Xxxx 0, 0, 0 xxx 0, Xxxxx 000,
XXXX OF PORTLAND, in the City of Portland,
County of Multnomah, State of Oregon
-23-
[DIAGRAM: EXHIBIT B--EIGHTEENTH FLOOR]
-24-
EXHIBIT C
ONE THOUSAND BROADWAY BUILDING LIMITED PARTNERSHIP
Work Agreement
--------------
Section 1. TENANT IMPROVEMENTS PROVIDED BY LANDLORD. Landlord agrees to
----------------------------------------------------
provide the following Tenant Improvements in the Premises:
1.1 Space "A" previously occupied by Xxxxxxx Properties Northwest:
Repair existing walls; touchup painted surfaces; install five (5) relights in
interior offices; install one stand-up height laminate counter top w/ rounded
corners; replace light fixture and repair ceiling tile in conference room; Four
(4) duplex outlets; replace missing electrical face plates; and shampoo existing
carpets.
1.2 Space "B" previously occupied by Rolf Communications: Replace carpet
/ base molding and paint to match space (A). Remove demising walls and install
"employee's only" door as indicated on floorplan.
1.3 Space "C" presently vacant: Landlord to provide Tenant an allowance
of $23.00 per rentable square foot (excluding space planning services) to
complete improvements per mutually agreed upon floorplan. Construction on space
(C) will be completed in time to allow Tenant to take possession of the premises
no later than December 1, 1996.
SECTION 2. DESIGN OF TENANT IMPROVEMENTS.
-----------------------------------------
2.1 CDP Preparation: Landlord's office planner shall prepare a
---------------
construction document package (hereafter the "CDP") consisting of a floor plan,
a reflected ceiling/lighting plan and Tenant's supplement specification.
2.1.1 The CDP shall be based upon the schematic space plan
attached as Exhibit D and the construction information provided by the Tenant.
2.1.2 Tenant shall provide Landlord's office planner with all of
the construction information requested by Landlord's office planner by no later
than the construction information submittal date specified in the Basic Lease.
2.1.3 Tenant shall be responsible for all delays in occupancy and
additional costs, including without limitation design fees, resulting from its
failure to submit such information on time and any Tenant requested changes in
the Tenant Improvements specified in this Lease. (herein "Change Items")
2.2 CDP Approval: Tenant shall approve the CDP by the construction
------------
document approval date specified in the Basic Lease Information subject to any
corrections requested to make the CDP consistent with the construction
information submitted to Landlord's office planner, and subject to any requested
deletions. The CDP shall include a statement (the "Statement") of the costs, if
any, for which Tenant will be responsible under the terms of this Work
Agreement. The CDP and statement included therein must be approved by the
Tenant in writing before the Landlord will proceed to obtain building permits
and commence construction.
2.3 Tenant Responsibilities: Tenant shall be responsible for delays and
-----------------------
additional costs, including without limitation design fees, caused by: (i) any
changes made by Tenant to the CDP other than corrections and deletions of the
type described in Section 2.2; (ii) Tenant's failure to approve the CDP and the
Statement by the construction document approval date; or (iii) by delays in
delivery of non-building-standard materials requiring long lead times. Tenant
shall pay, prior to taking occupancy of the Premises, all of the Landlord's
design fees arising out of the inclusion of non-building-standard materials in
the premises.
-25-
SECTION 3. CONSTRUCTION
------------------------
3.1 Bidding of the Work: As soon as reasonably possible after the
-------------------
completion of Tenant's CDP and approval thereof by Tenant, Landlord shall
solicit bids from independent contractors for the construction of the Tenant
Improvement work. Tenant shall have the right to observe the opening of the bids
for the work.
3.2 Authorization to Proceed: Within five (5) days of the opening of
------------------------
the bids, Tenant shall give Landlord written authorization to complete the
Premises in accordance with the CDP. Tenant may in such authorization delete any
or all such items of extra cost. In the absence of such written authorization,
Landlord shall not be obligated to commence work on the Premises. Tenant shall
be responsible for any costs due to any resulting delay in completion of the
Premises. Landlord shall complete the construction of the Tenant Improvements as
soon as reasonably possible after the approval to commence construction has been
given by the Tenant.
3.3 Completion and Payment: Landlord's contractor shall complete the
----------------------
Tenant Improvements in accordance with Tenant's approved CDP. Tenant shall
promptly pay for Improvements provided at Tenant's expense prior to taking
occupancy of the Premises.
SECTION 4. FIELD CHANGE ORDERS
-------------------------------
If Tenant shall request any change in the Tenant approved CDP, Tenant shall
request such change in writing to Landlord, and such request shall be
accompanied by all information necessary to prepare plans and specifications for
such change. After receiving this information, Landlord shall cause its office
planner to prepare such plans and specifications and a proposed field change
order ("FCO") as soon as reasonably thereafter. Landlord shall not be obligated
to proceed with any work which would be affected by a proposed FCO until it is
effective or the Tenant withdraws the FCO request. Tenant shall be responsible
for any and all delays in construction and occupancy caused by Tenant's FCO
requests. The proposed FCO shall set forth the estimated cost of the changes
(including design fees). The proposed FCO shall be effective only when signed
by both he Landlord and the Tenant. Even if Tenant fails to approve the
proposed FCO, Tenant shall be responsible for the cost of preparing any plans
and specifications for the proposed FCO. The actual cost, including design and
administration fees, of any FCO shall be paid by Tenant on or before the date
Tenant first occupies the Premises unless stated otherwise in the FCO.
SECTION 5. IMPROVEMENTS CONSTRUCTED BY TENANT
----------------------------------------------
If any work is to be performed in connection with Tenant Improvements on the
Premises by Tenant or Tenant's contractor:
5.1 Landlord's Approval: Such work shall not proceed until Landlord's
-------------------
written approval of each of the following items: (a) Tenant's contractor; (b)
public liability and property damage insurance carried by Tenant or its
contractor; and (c) schematic plans and specifications for such work. The
detailed construction plans and specifications shall be prepared by Landlord's
office planner at Tenant's expense based upon the schematic plans and
specifications. All such work shall be done in strict conformity with such final
plans and specifications subject to field change orders prepared and approved in
the manner specified in Section 4 above.
5.2 Permits: All work shall be done in conformity with a valid building
-------
permit (obtained at Tenant's expense) when required, a copy of which shall be
furnished to Landlord before such work is commenced, and in any case, all such
work shall be performed in accordance with all applicable governmental
regulations at Tenant's sole expense. Notwithstanding any failure by Landlord to
object to any such work, Landlord shall have no responsibility for Tenant's
failure to meet all applicable regulations.
5.3 Coordination: All work by Tenant or Tenant's contractor shall be
------------
scheduled through Landlord. Tenant or Tenant's contractor shall arrange for
necessary utility, hoisting and elevator service with landlord's contractor and
shall pay such reasonable charges for such services as may be charged by
Landlord's contractor.
5.4 Manner of Entry: Tenant's entry to the Premises for any purpose,
---------------
including without limitation, inspection or performance of Tenant construction
by Tenant's agents, prior to the Lease Commencement Date as specified in the
Basic Lease Information shall be at such times as are approved by Landlord and
subject to all the
-26-
terms and conditions of the lease except the payment of Rent. Tenant's entry
shall mean entry by Tenant, its officers, contractors, licensees, agents,
servants, employees, guests, invitees, or visitors.
5.5 Faulty Work: Tenant shall promptly reimburse Landlord upon demand
-----------
for any extra expense incurred by the Landlord by reason of faulty work done by
Tenant or its contractors or by any reason of any delays caused by such work, or
by reason of inadequate cleanup.
-27-
[DIAGRAM: EXHIBIT D---EIGHTEENTH FLOOR]
-28-
EXHIBIT E
---------
ONE THOUSAND BROADWAY BUILDING LIMITED PARTNERSHIP
--------------------------------------------------
Rules and Regulations
---------------------
1. The rights of each tenant in the entrances, corridors and elevators
servicing the Building are limited to ingress and egress from such tenant's
Premises for tenant and its employees, licensees and invitees, and no tenant
shall use, or permit the use of, the entrances, corridors or elevators for any
other purpose. No tenant shall invite to the tenant's Premises, or permit the
visit of, persons in such numbers or under such conditions as to unreasonably
interfere with the use and enjoyment of any of the plazas, entrances, corridors,
elevators and other facilities of the Building by any other tenants. No tenant
shall encumber or obstruct, or permit the encumbrance of any of the sidewalks,
plazas, entrances, corridors, elevators, fire exits or stairways of the
Building. Landlord reserves the right to control and operate the public
portions of the Building and the public facilities as well as facilities
furnished for the common use of the tenants, in such manner as it in its
reasonable judgment deems best for the benefit of the tenants generally.
2. Admission to the Building in certain areas and during certain hours
may be restricted by Landlord by means of access devices such as keys, entry
cards, combination codes and the like. Landlord may require all persons admitted
to or leaving the Building outside of business hours on business days to provide
appropriate identification, use a designated access device and to comply with
all other building security requirements. Tenant shall be responsible for all
persons to whom it issues an access device or discloses an access code and shall
be liable to Landlord for all acts or omissions of such persons. Any person
whose presence in the Building at any time shall, in the reasonable judgment of
Landlord, be prejudicial to the safety, character or reputation of the Building
or of its tenants may be denied access to the Building by closing the doors or
otherwise for the safety of the tenants and protection of property in the
Building. Each tenant shall pay Landlord a refundable deposit in an amount
reasonably determined by Landlord from time to time for each access device
issued to a tenant.
3. Smoking is prohibited at all times in all areas of the Building,
including, but not limited to, restrooms, corridors, stairwells, lobbies and
elevators.
4. No tenant shall obtain or accept for use in its Premises ice, food,
beverages, cleaning or other similar services from any persons reasonably
prohibited in writing from furnishing such services. Such services shall be
furnished only at such hours, and under such reasonable regulations, as may be
fixed by Landlord from time to time.
5. The cost of repairing any damage to the public portions of the
Building, the common areas or the public facilities or to any facilities used in
common with other tenants, caused by a tenant or its employees, agents,
contractors, licensees or invitees, shall be paid by such tenant.
6. No awnings or other projections shall be attached to the outside walls
of the Building. No curtains, blinds, shades or screens, if any, which are
different from the standards adopted by Landlord for the Building shall be
attached to or hung in or used in connection with any exterior window or door of
the Premises of any tenant without the prior written consent of Landlord. All
tenants with Premises visible from one of the lobbies, or any other public
portion of the Building, shall furnish and maintain the Premises in a first-
class manner, utilizing furnishings and other decorations commensurate in
quality and style with the furnishings and decor in the public portions of the
Building.
7. No lettering, sign, advertisement, notice, or object shall be
displayed in or on the exterior windows or doors, or on the outside of any
tenant's Premises, or at any point inside any tenant's Premises where the same
might be visible outside of such Premises, without the prior written consent of
Landlord. In the event of the violation of the foregoing by any tenant, Landlord
may remove the same without any liability, and may charge the expense incurred
in such removal to the tenant violating this rule. Interior signs, elevator cab
designations and lettering on doors shall, if and when approved by Landlord, be
inscribed, painted or affixed for each tenant by Landlord at the expense of such
tenant, and shall be of a size, color and style acceptable to Landlord.
-29-
8. The windows that reflect or admit light and air into the halls,
passageways or other public places in the Building shall not be covered or
obstructed by any tenant, nor shall any bottles, parcels or other articles be
placed on the windowsills.
9. No showcases or other articles shall be put in front of or affixed to
any part of the exterior of the Building, nor placed in the halls, corridors or
vestibules.
10. No bicycles, vehicles, animals, fish or birds of any kind shall be
brought into or kept in or about the Premises of any tenant or the Building
except in areas designated by Landlord.
11. No noise, including, but not limited to, music or the playing of
musical instruments, recordings, radio or televisions, which, in the judgment
Landlord, might disturb other tenants in the Building, shall be made or
permitted by any tenant. Nothing shall be done or permitted in the Premises of
any tenant which would impair or interfere with the use or enjoyment by any
other tenant of any other space in the Building.
12. No tenant, nor any of tenant's contractors, employees, agents,
visitors, licensees, shall at any time bring into or keep upon the Premises or
the Building any inflammable, combustible, explosive, or otherwise dangerous
fluid, chemical or substance.
13. Additional locks or bolts of any kind which shall not be operable by
the Grand Master Key for the Building shall not be placed upon any of the doors
or windows by any tenant, nor shall any changes be made in locks or mechanisms
thereof which shall make such locks inoperable by said Grand Master Key.
Additional keys for a tenant's Premises and rest rooms shall be procured only
from the Landlord who may make a reasonable charge therefor. Each tenant shall,
upon the termination of its tenancy, turn over to Landlord all keys of stores,
offices, and toilet rooms, either furnished to, or otherwise procured by, such
tenant, and in the event of the loss of any keys furnished by Landlord, such
tenant shall pay to Landlord the cost thereof.
14. All removals, or the carrying in or out of any safes, freight,
furniture, packages, boxes, crates or any other object or matter of any
description must take place during such hours and in such elevators, and in such
manner as Landlord or its agent may determine from time to time. The persons
employed to move safes and other heavy objects shall be reasonably acceptable to
Landlord and, if so required by law, shall hold a Master Rigger's or comparable
license. Arrangements will be made by Landlord with any tenant for moving large
quantities of furniture and equipment into or out of the Building. All labor and
engineering costs incurred by Landlord in connection with any moving specified
in this rule including a reasonable charge for overhead and profit, shall be
paid by Tenant to Landlord, on demand.
15. Landlord reserves the right to inspect all objects and matter to be
brought into the Building and to exclude from the building all objects and
matter which violate any of these Rules and Regulations or the Lease of which
this Exhibit is a part. Landlord may require any person leaving the Building
with any package or other object or matter to submit a pass listing such package
or object or matter from the tenant from whose Premises the package or object or
matter is being removed, but the establishment and enlargement of such
requirement shall not impose any responsibility on Landlord for the protection
of any tenant against the removal of property from the Premises of such tenant.
Landlord shall in no way be liable to any tenant for damages or loss arising
form the admission, exclusion or ejection of any person to or from the Premises
or Building under the provisions of this Rule or of Rule 2 hereof.
16. No tenant shall occupy or permit any portion of its Premises to be
occupied as an office for secretarial or word processing services without the
prior written consent of Landlord. No tenant shall use its Premises or any part
thereof to be used, for manufacturing or sale at retail or auction of
merchandise, goods or property of any kind or for the possession, storage,
manufacture, or sale of liquor, narcotics, dope, tobacco in any form, or as a
xxxxxx, beauty or manicure shop, or as a school.
17. Landlord shall have the right to prohibit any advertising or
identifying sign by any tenant which , in Landlord's reasonable judgment, tends
to impair the reputation of the Building or its desirability as a building for
-30-
others, and upon written notice from Landlord, such tenant shall refrain from
and discontinue such advertising or identifying sign.
18. Landlord shall have the right to prescribe the weight and position of
safes and other objects or excessive weight, and no safe or other object whose
weight exceeds the lawful load for the area upon which it would stand shall be
brought into or kept upon any tenant's Premises. If, in the judgment of the
Landlord, it is necessary to distribute the concentrated weight of any heavy
object, the work involved in such distribution shall be done at the expense of
the tenant and in such manner as Landlord shall determine.
19. No machinery or mechanical equipment other than ordinary portable
business machines may be installed or operated in any tenant's Premises without
Landlord's prior written consent which consent shall not be unreasonably
withheld or delayed, and in no case (even where the same are of a type so
excepted or as so consented to by Landlord) shall any machines or mechanical
equipment be so placed or operated as to disturb other tenants, but machines and
mechanical equipment which may be permitted to be installed and used in tenant's
Premises shall be so equipped, installed and maintained by such tenant as to
prevent any disturbing noise, vibrations or electrical or other interference
from being transmitted from such Premises to any other area of the Building.
20. Landlord, its contractors, and their respective employees shall have
the right to use, without charge therefor, all light, power, and water in the
Premises of any tenant while cleaning or making repairs or alterations in the
Premises of such tenant.
21. No Premises of any tenant shall be used for lodging or sleeping or for
any immoral or illegal purpose.
22. The requirement of tenants will be attended to only upon application
at the office of the Building. Employees of Landlord shall not perform any work
or do anything outside of their regular duties, unless under special
instructions from Landlord.
23. Canvassing, soliciting and peddling in the Building are prohibited and
each tenant shall cooperate to prevent the same.
24. No tenant shall cause or permit any unusual or objectionable odors to
emanate from its Premises which would annoy other tenants or create a public or
private nuisance. No cooking shall be done in the Premises of any tenant except
as is expressly permitted in such tenant's Lease.
25. Nothing shall be done or permitted in any tenant's Premises, and
nothing shall be brought into or kept in any tenant's Premises, which would
impair or interfere with any of the Building's services or the proper and
economic heating, cleaning or other servicing of the Building or the Premises,
or the use or enjoyment by any other tenant of any other Premises, nor shall
there be installed by any tenant any ventilating, air-conditioning, electrical
or other equipment of any kind which, in the reasonable judgment of Landlord,
might cause any such impairment or interference.
26. No acids, vapors or other materials shall be discharged or permitted
to be discharged into the waste lines, vents or flues of the Building which may
damage them. The water and wash closets and other plumbing fixtures in or
serving any tenant's Premises shall not be used for any purpose other than the
purposes for which they were designed or constructed, and no sweepings, rubbish,
rags, acids or other foreign substances shall be deposited therein. All damages
resulting from any misuse of the fixtures shall be borne by the tenants who, or
whose servants, employees, agents, visitors, or licensees shall have caused the
same. Any cuspidors or containers or receptacles used as such in the Premises of
any tenant or for garbage or similar refuse, shall be emptied, cared for and
cleaned by and at the expense of such tenant.
27. All entrance doors in each tenant's Premises shall be left locked all
windows shall be left closed by the tenant when the tenant's Premises are not in
use. Entrance doors shall not be propped open at any time. Each tenant, before
closing and leaving its Premises at any time, shall turn out all lights.
28. Hand trucks not equipped with rubber tires and side guards shall not
be used within the Building.
-31-
29. Each Tenant shall lower and close the coverings for all windows in
each Tenant's Premises above the ground floor as reasonably required because of
the position of the sun, during the operation of the Building air-conditioning
system to cool or ventilate the tenant's Premises.
30. Landlord reserves the right to rescind, alter or waive any rule or
regulation at any time prescribed for the Building when, in its reasonable
judgment, it deems it necessary, desirable or proper for its best interest and
for the best interests of the tenants generally, and no alteration or waiver of
any rule or regulation in favor of one tenant shall operate as an alteration or
waiver in favor of any other tenant. Landlord shall not be responsible to any
tenant for the nonobservance or violation by any other tenant of any of the
rules and regulations at any time prescribed for the Xxxxxxxx.
-00-
0000 XXXXXXXX
OPERATING EXPENSES
(Based on 95% Office Occupancy)
-----------------------------------------------------------------------------------------------------------
1991 1992 1993 1994 1995 1996
Base Yr. Base Yr. Base Yr. Base Yr. Base Yr. Estimate
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
Management 177,186 171,615 175,018 176,802 177,129 177,709
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
Taxes 635,036 574,946 511,942 477,642 448,417 422,507
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
Insurance 52,915 56,114 51,250 58,653 57,072 59,840
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
Utilities 320,871 339,655 360,215 318,199 329,975 338,971
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
Cleaning 206,401 214,303 222,713 235,205 230,627 246,502
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
Repair & Maint. 78,278 88,645 85,991 102,722 106,276 103,800
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
Supplies 45,521 47,115 52,328 54,227 38,649 40,971
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
General Oper. 160,564 193,172 199,474 235,423 235,122 240,840
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
Total 1,676,502 1,685,565 1,658,931 1,658,873 1,623,267 1,631,140
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
Cost PSF 6.99 7.02 6.91 6.91 6.76 6.79
-----------------------------------------------------------------------------------------------------------
-33-
EXHIBIT F
---------
ONE THOUSAND BROADWAY BUILDING LIMITED PARTNERSHIP
--------------------------------------------------
ADDENDUM:
---------
SECTION 1. FIRST RIGHT OF REFUSAL.
---------- ----------------------
Tenant shall have the right of first refusal during the Term of the Lease
with respect to the portion of the Building which is shown on Exhibit G to the
Lease. In the event that Landlord is prepared to Lease all or any portion of
such additional space to a third party, Landlord shall give to Tenant written
notice of the same. Tenant shall have the right, within five (5) days of receipt
of such notice, to elect to Lease such additional space on the same terms and
conditions as Landlord is prepared to Lease the same to the third party, as
disclosed by Landlord's notice, based on similar credit worthiness of each
tenant. Tenant's election shall be exercised by written notice to notice, based
on similar credit worthiness of each tenant. Tenant's election shall be
exercised by written notice to Landlord given prior to the expiration of such
five (5) day period. In the event that Tenant gives such notice, Landlord and
Tenant shall enter into a modification of this Lease reflecting the inclusion of
the additional space. In the event the Tenant does not give such written notice,
then Landlord shall be free to Lease such additional space to the intended third
party lessee, on the terms set forth in the original notice given from Landlord
to Tenant. In the event that landlord does not subsequently Lease such
additional space to such third party, or discontinues negotiations with such
third party, then such additional space shall again become subject to the right
of first refusal set forth herein.
The right of first refusal set forth herein shall only apply so long as
Tenant is not in default hereunder. In the event this Lease is terminated for
any reason, the rights granted to Tenant in this paragraph shall also terminate
at the same time. In the event Tenant exercises the right of first refusal
provided herein and subsequently becomes in default, Landlord may elect, by
written notice to Tenant, to terminate Tenant's prior election to exercise its
right of first refusal, in which event Tenant shall have no rights with respect
to additional space. The right of first refusal is personal to the Tenant named
herein and shall only exist so long as the Tenant named herein is in actual
occupancy of the Premises.
SECTION 2. EXPANSION
---------- ---------
Tenant has agreed to expand into Spaces "B" and "C" as of December 1, 1996.
This expansion is subject to an existing tenant vacating Space "B" on the
expiration of their lease on October 31, 1996. In the event such space is not
available for occupancy by December 1, 1996, Landlord will extend the reduced
rental rate until such space is available for occupancy.
SECTION 3. PAYMENT OF OPERATING EXPENSES
---------- -----------------------------
Landlord will provide to Tenant a rent credit within ten (10) days of its
delivery to Tenant of the Operating Statement for such Operating year. The
balance of Section 5.7 remains unchanged.
SECTION 4. HOLDING OVER WITH CONSENT
---------- -------------------------
Landlord and Tenant agree that, in the event tenant holds over with the
consent of Landlord, rental for the first six (6) months of the holdover term
shall be calculated at $20.35 per rentable square foot; thereafter; if Tenant
remains in the subject space, the rental shall be the then current fair market
rent for the premises as determined by Landlord, subject to adjustment as
provided in Section 4 of the initial lease agreement.
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ONE THOUSAND BROADWAY BUILDING LIMITED PARTNERSHIP
LEASE AGREEMENT
Basic Lease Information
-----------------------
The following Basic Lease Information is hereby incorporated into and made
a part of the Lease between Landlord and Tenant to which it is attached. Each
reference in the Lease to any of the Basic Lease Information shall mean the
respective information set forth below and such information shall be deemed
incorporated as a part of the terms provided under the particular Lease Section
pertaining to such information. In the event of any conflict between any Basic
Lease Information and the Lease, the former shall control.
1. Building: 0000 Xxxxxxxx Building
--------
2. Landlord: One Thousand Broadway Building Limited Partnership,
--------
an Oregon Limited Partnership
3. Landlord's Address for Giving Notices and Payment of Rent:
---------------------------------------------------------
1000, Inc.
0000 XX Xxxxxxxx
Xxxxxxxx, Xxxxxx 00000
4. Tenant: Portland Software, Inc.
------
5. Premises: The floor area on the 18th floor of the Building consisting
--------
of approximately 11.578 rentable square feet as outlined on the floor
plan of the Building attached hereto as Exhibit B. The precise amount
of the rentable area in the Premises shall be reasonably determined by
Landlord's office planner. Base Rent, Tenant's Percentage, the number
of parking spaces, if any, available to Tenant and any similar item
based upon the size of the Premises shall be adjusted to reflect the
precise rentable area in the Premises.
6. Parking Space Allowance: Nine (9) parking stalls at the then current
-----------------------
market rate, based on a ratio of one (1) parking stall per 1,250
rentable square feet leased.
7. Use of Premises: (Section 2) Software Development
---------------
8. Lease Document Issuance: July 3, 1996
-----------------------
9. Lease Document Execution Date: July 17, 1996
-----------------------------
10. Construction Information Submittal Date: Tenant shall provide
---------------------------------------
Landlord's office planner with all of the construction information
requested by Landlord's office planner no later than four (4) working
days from the Lease Document Execution Date (item 9 above) in
accordance with Exhibit C of this lease (Exhibit C, Section 4.1).
11. Construction Document Approval Date: Landlord's office planner shall
-----------------------------------
deliver the Construction Document Package (see Exhibit C, Section 4.1)
to Tenant for approval within ten (10) working days after Landlord's
office planner has received all of the construction information from
Tenant in accordance with Exhibit C, Section 4.2, of this Lease.
Tenant shall approve the Construction Document Package within three
(3) working days after Landlord's office planner has delivered it to
Tenant, subject to any corrections requested to make the CDP
consistent with Tenant's construction information and any requested
deletions. (Exhibit C, Section 4.2)
12. Commencement Date: August 1, 1996 or such earlier or later date as
-----------------
provided in Section 30 of the Lease Agreement. (Section 1.3)
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13. Expiration Date: September 30, 2001 or such earlier date as provided
---------------
in Section 30 of the Lease Agreement. (Section 1.3)
14. Rent:
----
Months PSF/Annual Monthly
------ ---------- -------
1-2 0 0
3-5 $16.50 $12,270.50
6-18 $17.00 $16,402.17
19-36 $17.50 $16,884.58
37-62 $18.50 $17,849.42
Payable in advance, on the first day of each calendar month. The
months referred to in this Section are lease months not calendar
months. For example, the first Lease month will begin on the
Commencement Date and end on the day prior to its first monthly
anniversary.
15. Tenant's Percentage of Operating Expenses: 4.82% (Section 5.2)
-----------------------------------------
16. Base Year for Adjustments to Operating Expenses: The 1997 Calendar
-----------------------------------------------
year. (Section 5.2)
17. Security Deposit: $17,849.42 (Section 6)
----------------
18. Brokers: Xxxxx & Xxxxx Company and United Real Estate Services, Inc.
-------
LANDLORD: TENANT:
One Thousand Broadway Limited Partnership, Portland Software, Inc.
an Oregon Limited Partnership an Oregon Corporation
BY: 1000, Inc.
By: /s/ Xxxx Xxxxxxx By: /s/ Xxxxxxx Xxxxxxxx
--------------------------------------- -----------------------------
Xxxx Xxxxxxx Xxxxxxx Xxxxxxxx
Title: Vice President Title: Chairman, President & CEO
Date: 7/19/96 Date: 7/17/96
------------------------------------- ---------------------------
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