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OFFICE SPACE SUBLEASE
This Sublease is entered into this 11th day of September, 1997 between
CREATIVE MULTIMEDIA CORPORATION, an Oregon corporation ("Sublessor") and
WEBRIDGE, INC., a Delaware corporation as "Sublessee". Sublessor is the Tenant
under a Lease from Commerce Building Limited Partnership and its successors
("Landlord") dated April 7, 1995 (the "Lease"). The Lease covers property in
the building located at 000 XX Xxxxxxxx, Xxxxxxxx, Xxxxxx. A complete copy of
the Lease is attached hereto as Exhibit A. Sublessee wishes to sublease from
Sublessor, all or a portion of, the Premises covered by the Lease.
NOW, THEREFORE, Sublessor hereby subleases the premises in the attached
Exhibit B the "Premises"), an area of approximately See Addendum, Item #1, and
Sublessee agrees to subleases the Premises from Sublessor on the following
terms.
1. Term. The term of this Sublease shall commence on September 8, 1997,
and shall continue through and including September 30, 2000.
2. Rent. Sublessee shall pay to Sublessor base rent in the sum of $12.50
per square foot per year on the first day of each month of the lease term. Base
rent shall be escalated at the same time and in the same amount per square foot
as the rent paid by Sublessor to the Landlord under any escalation clause or
expense pass-through clause of the Lease. Sublessor shall pay to the Landlord
under the Lease all rent and other charges required to be paid by Sublessor
under the Lease.
3. Security Deposit. Sublessee shall pay the sum of $20,000.00 security
deposit upon execution of this Sublease. Sublessor may apply the Security
Deposit to pay the cost of performing any obligation which Sublessee fails to
perform within the time required by this Sublease, but such application by
Sublessor shall not be the exclusive remedy for Sublessee's default. If
Sublessor applies the Security Deposit, Sublessee shall on demand pay the
sum necessary to replenish the Security Deposit to its original amount. To the
extent not applied by Sublessor to cure defaults by Sublessee and at the
Sublessee's option, the Security Deposit shall be applied against the rent
payable for the last month(s) of the term or refunded to the Sublessee at the
end of the Term.
4. Obligations of Sublease. Sublessee shall perform all of the
obligations of Tenant under the Lease (except the obligation to pay rent and
other obligations inconsistent with this Sublease) as if Sublessee were the
Tenant under the Lease and Sublessor was the Landlord under the Lease. The terms
of the Lease are hereby expressly incorporated as part of this Sublease. In the
event Sublessee fails to comply with such terms, or the terms of this Sublease,
Sublessor shall be entitled to all of the remedies granted to Landlord in the
Lease, together with any other rights Sublessor might otherwise have. All
provisions in the Lease dealing with indemnity and liability shall be applicable
as between Sublessor and Sublessee and the Sublessee and the Landlord under the
Lease. Sublessee shall name both Sublessor and the Landlord and
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Landlord's managing agent under the Lease as named insured in the insurance
policies it is required to obtain hereunder.
5. Representations of Sublessor. Sublessor represents and warrants that
the Lease is in good standing and that Sublessor has, to the best of its
knowledge, complied with all of its obligations thereunder through the date
hereof. So long as Sublessee is not in default hereunder, Sublessor shall make
all rental and other payments required by the Lease. In the event Sublessor
fails to pay when due rent or any other sums of money required to be paid under
the Lease, Sublessee may pay the same to Landlord and deduct and offset the
amount of such payment from any rent or other sums of money owing to Sublessor
under the terms of the Sublease.
In the event of the termination of the Lease for any reason other than a
default by Sublessee under this Sublease, then this Sublease shall terminate.
(a) If such termination of the Lease results from an act or failure
to act of Sublessor, Sublessor shall be liable to Sublessee for any damages,
costs and expenses of Sublessee arising from the termination of the Sublease.
(b) If such termination of the lease results from an act or failure
to act of any party other than Sublessor or Sublessee, Sublessor shall not be
liable to Sublessee for any damages, costs and expenses of Sublessee arising
from the termination of the Sublease.
6. Condition of Premises. Unless otherwise expressly provided herein,
the Premises are leased as is in the condition now existing with no additional
work to be performed by Sublessor or Landlord.
7. Notices. With respect to notices between Sublessor and Sublessee, the
addresses for notice shall be the addresses stated in this Sublease.
8. Indemnity. Sublessee shall indemnify and hold Sublessor harmless from
any and against all claims by reason of any breach or default on the part of
Sublessee under the Lease.
9. Attorneys' Fees. Sublessor and Sublessee agree that if either party
is involuntarily made a party defendant to any litigation concerning this Lease
or the Premises or by reason of any act or omission or the use of occupancy of
the Premises or operation of the Building, then Sublessor or Sublessee, as the
case may be, shall hold harmless the other party from all liability by reason
thereof, including attorneys' fees incurred by Sublessor or Sublessee in such
litigation and all court costs. If legal action shall be brought by either of
the parties hereto for the unlawful detainer of the Premises, for the recovery
of Rent due under the provisions of this Lease, or because of the breach of any
term, covenant or provision hereof, the party prevailing in said action
(Sublessor or Sublessee as the case may be) shall be entitled to recover from
the party not prevailing costs of the suit and reasonable attorneys' fees.
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10. Holding Over. Any holding over after the expiration of the term, with
the consent of Sublessee, shall be construed to be a tenancy from month to month
at three hundred percent (300%) of the Rent herein specified (prorated on a
daily basis).
11. Sublessee acknowledges that it has read and is familiar with the
terms and provisions of the Lease.
12. Sublessor shall not be required to extend the term of the Lease or
exercise any expansion options or rights of first opportunities set forth
therein.
13. In connection with the installation and operation of its computers
and network related equipment to create a private local area network for
Sublessee, Sublessee shall take no action which interferes with Sublessor's
network. Sublessee acknowledges that it is familiar with the existing network
of Sublessor and Sublessor shall have no responsibility for any failure to
Sublessee's network to perform properly.
14. Address for Notices and Rent Payments:
Creative Multimedia Corporation
IHS Group
00 Xxxxxxxxx Xxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
15. Consent. This Sublease is a non-binding agreement until the Landlord
and Sublessor have executed the attached consent form.
16. Amendment/Assignment. This Sublease shall not be amended or assigned
without the prior written consent of Sublessee and Sublessor which shall not be
unreasonably withheld.
SUBLESSEE: SUBLESSOR:
WEBRIDGE, INC., CREATIVE MULTIMEDIA CORPORATION,
a Delaware corporation an Oregon corporation
By: /s/ [Signature Illegible] By: /s/ [Signature Illegible]
------------------------------ ----------------------------
Its: Director of Operations Its: VICE PRESIDENT
----------------------------- ---------------------------
Date: Sept. 12, 1997 Date: SEPTEMBER 12, 1997
---------------------------- --------------------------
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ADDENDUM
TO
SUBLEASE AGREEMENT
This Addendum to Sublease Agreement is entered into this 4th day of
September, 1997 by and between CREATIVE MULTIMEDIA CORPORATION, an Oregon
Corporation ("Sublessor") and WEBRIDGE, INC. ("Sublessee") with regard to the
Commerce Building located at 000 XX Xxxxxxxx, Xxxxxxxx, Xxxxxx.
1. Sublease Term.
--------------------------------------------------------------------------------
FLOOR SQUARE FEET OCCUPANCY DATE COMMENCEMENT OF RENT
--------------------------------------------------------------------------------
4th 8,223 September 11, 1997 October 1, 1997
--------------------------------------------------------------------------------
5th 8,223 No later than March 1, 1998 When occupied
--------------------------------------------------------------------------------
6th 8,223 No later than March 1, 1999 When occupied
--------------------------------------------------------------------------------
The Sublease will continue through the balance of the Lease that expires
September 30, 2000. Sublessee shall be required to give one hundred twenty (120)
days prior written notice of its intent to take possession of the 6th floor if
earlier than March 1, 1999.
2. Computer Network. Sublessee shall provide all computers and
network-related equipment to create a private local area network for
Sublessee's separate from Sublessor's existing local area network. Sublessee's
subnetwork will utilize the existing office wiring and Sublessee will have
access on an as-needed basis to the 5th floor computer room to configure and
manage the network routers, hubs, wiring closets, etc. In connection with the
installation and operation of its computers and network related equipment to
create a private local area network for Sublessee, Sublessee shall take no
action which interferes with Sublessor's network.
3. Security System. The existing card key security system will be
re-programmed to provide secure access for the Sublessee's employees and
customers to the floors that the Sublessee is leasing. Sublessee shall be
responsible for the costs incurred for reprogramming of the system.
4. Access to the 5th Floor Conference Room. Sublessee shall have the
right to use the large conference room on the 5th floor, prior to taking
possession and paying rent on the 5th floor, with 24-hour notice to Sublessor.
Sublessee shall be liable for any damage to, or personal injury upon, the
Premises during these periods.
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APPROVED AND ACCEPTED:
SUBLESSEE: SUBLESSOR:
WEBRIDGE, INC., CREATIVE MULTIMEDIA CORPORATION,
A DELAWARE CORPORATION AN OREGON CORPORATION
By: /s/ [Signature Illegible] By: /s/ [Signature Illegible]
------------------------------ ----------------------------
Its: Director of Operations Its: VICE PRESIDENT
----------------------------- ---------------------------
Date: September 12, 1997 Date: SEPTEMBER 12, 1997
---------------------------- --------------------------
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CONSENT
The undersigned Landlord under the Lease hereby consents to the foregoing
Sublease conditioned upon the following to which Sublessor agrees:
1. Sublessee's agreement to perform Sublessor's obligations under the Lease
during the Sublease term is for the benefit of both Sublessor and
Landlord.
2. Sublessee's agreement to perform such obligations shall not relieve
Sublessor of its primary and unconditional liability for payment of
rental and other charges and performance of Sublessor's obligations as
Tenant under the Lease during the full term of the Lease.
3. This consent shall not relieve Tenant of its obligation to obtain consent
for any other sublease or assignments as provided for under the Lease.
4. Sublessor waives any and all claims or causes of action against Landlord
which arises out of the Lease or Sublessor's occupancy of the Premises,
and which have accrued prior to the date of this consent.
5. Sublessor agrees to pay to Landlord as additional rent, the amount if any
that Sublessor receives from Sublessee for base rent (on a per square
foot basis) in excess of the amount Sublessor pays Landlord as base rent
under the Lease (on a per square foot basis).
6. Sublessor waives its option to extend the term of the lease beyond
September 30, 2000.
LANDLORD: SUBLESSOR:
Prima Xxxxx Development Corp. Creative Multimedia Corp.
Xxxx 1981 Revocable, Trust & An Oregon Corporation
Xxxxxx X. Xxxx Living Trust
By: /s/ [SIGNATURE ILLEGIBLE] By: /s/ [SIGNATURE ILLEGIBLE]
---------------------------------- ----------------------------------
Its: President Its: VICE PRESIDENT
--------------------------------- ---------------------------------
Date: 10/15/97 Date: SEPTEMBER 12, 1997
-------------------------------- --------------------------------
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WEBRIDGE, INC. U.S. NATIONAL BANK OF OREGON
0000 XX XXXXXX XX., XXXXX 000 XXXXXXXXX XXXXXX
XXXXXXXX, XX 00000 XXXXXXXXX, XX 00000
PH. (000) 000-0000 24-22-1230 9/12/97
PAY TO THE
ORDER OF Creative Multimedia Corporation $**20,000.00
Twenty Thousand and 00/100**************************************** DOLLARS
Creative Multimedia Corporation
IHS Group
00 Xxxxxxxxx Xxx Xxxx
Xxxxxxxxx, XX 00000
MEMO
Deposit on for Webridge, Inc. office spa /s/ Xxxx X. Amantos
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COMMERCE BUILDING
OFFICE LEASE
This Lease, made and entered into at Portland, Oregon this 7th day of April
1995 by and between Commerce Building Limited Partnership, an Oregon limited
partnership ("Landlord") and Creative Multimedia Corporation, an Oregon
corporation ("Tenant").
Landlord hereby leases to Tenant the fifth and sixth floors consisting of
16,446 rentable square feet (the "Premises") in the Commerce Building (the
"Building") located at 000 X.X. Xxxxxxxx, Xxxxxxxx, Xxxxxx, for a term
commencing June 1, 1995, and continuing through May 31, 2000, at a Base Rental
of $16,446.00 per month commencing June 1, 1995, through and including May 31,
1998 and $17,816.50 per month commencing June 1, 1998, through and including
May 31, 2000 payable in advance on the first day of each month. On the earlier
of May 1, 1996, or ninety (90) days after Tenant notifies Landlord that Tenant
has subleased its leased premises in the Pean Building in Portland, Oregon,
Landlord shall deliver possession of the fourth floor of the Building
consisting of 9,223 rentable square feet to Tenant and Tenant shall thereupon
take occupancy of the fourth floor on such date for a term commencing May 1,
1996, or such earlier date, and continuing through May 31, 2000, at a Base
Rental of $8,223.00 per month commencing May 1, 1996, or such earlier date,
through and including May 31, 1998, and $8,908.25 per month commencing June 1,
1998, through and including May 31, 2000. At such time as Tenant occupies the
fourth floor, the Premises shall be automatically deemed to include the fourth
floor. Upon execution of this Lease, Tenant has paid the Base Rent for the
first full month of the lease term for which rent is payable.
Landlord and Tenant covenant, and agree as follows:
1. Delivery of Possession. Should Landlord be unable to deliver possession
of the Premises on the date fixed for the commencement of the term,
commencement will be deferred and Tenant shall owe no rent until notice from
Landlord tendering possession to Tenant. If possession is not so tendered
within ninety (90) days following commencement of the term, then Tenant may
elect to cancel this Lease by notice to Landlord, within ten (10) days
following expiration of the ninety (90) day period. Landlord shall have no
liability to Tenant to delay in delivering possession, nor shall such delay
extend the term of this Lease in any manner. Any early occupancy of the
Premises shall be subject to each and every term and condition of this Lease
including payment of rent. The Premises shall be delivered built out
substantially in accordance with the specifications set forth in Exhibit B
attached hereto. Tenant shall take possession of the Premises upon delivery
thereof to Tenant, subject to Landlord substantially completing a final
punchlist with a minimum ten (10) day notice of completion to Tenant.
2. Rent Payment. Tenant shall pay the Base Rent for the Premises and any
additional rent provided herein without deduction or offset. Rent for any
partial month during the lease term shall be prorated to reflect the number of
days during the month that Tenant occupies the Premises. Additional rent means
amounts determined under paragraph 23 of this Lease and any other sums payable
by Tenant to Landlord under this Lease. Rent not paid when due shall bear
interest at the rate of one and one-half percent per month until paid. Landlord
may at its option impose a late charge of $0.05 for each $1 of rent for rent
payments made more than ten (10) days late in lieu of interest for the first
month of delinquency, without waving any other remedies available for default.
Failure to impose a late charge shall not be a waiver of Landlord's rights
hereunder. Tenant shall keep the Rent and other terms of this 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. Landlord shall
provide one notice per year to Tenant in the event Tenant is more than ten (10)
days late in its payment of rent or additional rent without penalty to Tenant
providing Tenant cures the default within three (3) business days after receipt
of Landlord's written notice.
3. Security Deposits. Intentionally omitted.
4. Use. Tenant shall use the Premises for general office space and
shipping/receiving activities and for no other purpose without Landlord's
written consent. In connection with its specific use of Premises only, Tenant
shall at its expense promptly comply with all applicable laws, ordinances,
rules and regulations of any public authority and shall not annoy, obstruct, or
interfere with the rights of other tenants of the Building. Tenant shall create
no nuisance nor allow any objectionable fumes, noise, or vibrations to be
emitted from the Premises. Tenant shall not conduct any activities that will
increase Landlord's insurance rates for any portion of the Building or that
will in any manner degrade or damage the reputation of the Building.
5. Equipment. Tenant shall install in the Premises such office equipment as
is customary for general office use and is referenced in Exhibit D attached
hereto and shall not overload the floors or electrical circuits of the Premises
or Building or alter the plumbing or wiring of the Premises or Building.
Landlord must approve in advance the location and manner of installing any
wiring or electrical, heat generating or communication equipment or
exceptionally heavy articles. All telecommunications equipment, conduit, cables
and wiring and any additional air conditioning required because of heat
generating equipment or special lighting installed by Tenant shall be installed
and operated at Tenant's expense.
6. Signs. No signs, awnings, antennas, or other apparatus shall be painted
on or attached to the Building or anything placed on any glass or woodwork of
the Premises or positioned so as to be visible from outside the Premises
without Landlord's written approval as to design, size, location, and color.
All signs installed by Tenant shall comply with Landlord's standards for signs
and all applicable codes and all signs and sign hardware shall be removed upon
termination of this Lease with the sign location restored to its former state
unless Landlord elects to retain all or any portion thereof.
7. Utilities and Services.
a. Landlord will furnish at its expense heat and air conditioning,
water, electricity and elevator service and, during the hours specified in
subparagraph c. below, Landlord shall make available such utilities to Tenant
in addition to foregoing specified normal business hours at no cost to Tenant;
provided, if such use outside of the
1. OFFICE LEASE
9
specified business hours is excessive in Landlord's sole discretion, Landlord
reserves the right to invoice and charge Tenant for the incremental additional
cost of making such utilities available to Tenant in addition to the foregoing
specified normal business hours. In case of dispute over any such charges,
Landlord and Tenant shall mutually designate a qualified independent engineer
whose decision shall be conclusive on both parties. If the parties cannot agree
on such engineer within fifteen (15) business days after Tenant receives
Landlord's invoice for such charges, either party may have the Multnoman County
Presiding Circuit Court Judge select the same. Janitorial service will be
provided substantially in accordance with the schedule set forth in Exhibit C
attached hereto, which schedule and service may change somewhat from time to
time. Tenant shall comply with all government laws or regulations regarding the
use or reduction of use of utilities on the Premises. Interruption of services
or utilities shall not be deemed an eviction or disturbance of Tenant's use and
possession of the Premises, render Landlord liable to Tenant for damages
(except to the extent the same is caused by Landlord's negligence or willful
misconduct), or relieve Tenant from performance of Tenant's obligations under
this Lease. Landlord shall take all reasonable steps to correct any
interruptions in service. Tenant shall provide its own surge protection for
power furnished to computers.
b. The HVAC system shall be so designed and sized as to satisfy all of
the factors contributing to the respective cooling and heating loads of the
building, and its individual spaces. Special consideration shall be given to
HVAC unit zoning by sectionalizing every area where load variations occur.
Temperature variations in any given zone shall not exceed 5 degrees F total.
c. System Design Parameters: The system shall be designed using the
geographical summer and winter outdoor design conditions and other Energy
Conservation measures as set forth in the Uniform Building Codes, 1988 Edition,
and the State of Oregon 1990 Amendments, Chapter 53. Equipment, duct work,
grilles and registers shall be designed using ASHRAE Handbook to minimize noise,
and to provide for balanced air flows and temperatures throughout the building.
The system shall be capable of maintaining, at design conditions, the following
temperature swings during occupied hours: (1) Heating: 68-75 degrees F; (2)
Cooling: 68-75 degrees F. All HVAC systems shall have a programmable setback
capability with a manual override. The system shall be setback/setup during
unoccupied hours as follows: (1) Heating setback of 10-15 degrees F and shall at
no time allow indoor temperature to drop below 65 degrees F; (2) Cooling setup
shall not allow the interior temperature to rise above 85 degrees F. At the
beginning of the workday, building or the premises must be at the occupied
temperature. Operating hours shall be regular working days (Monday through
Friday), holidays excepted, commencing at 7:00 a.m. and ending at 8:00 p.m. and
Saturdays (except holidays) commencing at 8:00 a.m. and ending at noon. Should
Lessee require service beyond these hours, Lessee may be required to pay for
such extended service. All enclosed rooms, with the exception of janitorial
closets, shall be provided with both a supply and a return air duct. System
shall provide an optimum of 25 CFM but not less than 20 CFM of outside air per
occupant ventilation, and shall be capable of continuous air circulation
throughout the occupied areas. System shall be designed to provide a minimum of
one complete air change every 10 minutes.
d. System Maintenance: Maintenance shall be performed as follows:
Every three (3) months a preventative maintenance check, every six (6) months
complete filter changes, once every two years clean the coils on all units. On
request by Lessee Lessor shall provide Lessee with copies of work orders signed
by the maintenance person who performed the work. The Lessor shall be
responsible for the system maintenance to the standards set forth in Paragraph
10(c) above. Should Lessor fail to maintain the system in accordance with above
standards, and after thirty (30) days prior written notification to the Lessor,
Lessee may contract for necessary labor, equipment and material to bring system
within those standards and may deduct related costs from future rent payments.
e. All electrical work shall comply to the National Electric Code, and
all current codes. Every two workstations shall have one circuit and every two
offices shall have the same circuit. All lighting shall be switched from the
wall.
f. The acoustical absorption in the Premises shall be no more than
NC40.
g. Landlord shall be in default under this Lease if it fails to
perform or observe any of its Lease obligations hereunder after a period of
thirty (30) business days, or the additional time, if any, that is reasonably
necessary to properly and diligently cure the default after receiving written
notice from Tenant of the default. The notice shall give in reasonable detail
the nature and extent of the failure and identify the Lease provision(s)
containing the obligation(s). Landlord shall not be in default if it fails to
perform its Lease obligations hereunder due to extreme outside temperature
conditions or any other cause beyond Landlord's control, except to the extent
of Landlord's negligence of willful misconduct.
8. Extra Usage. If Tenant uses excessive amounts of 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 for supplying such extra utilities or
services, which charge shall be payable monthly by Tenant in conjunction with
rent payments. 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. Landlord and Tenant shall each pay one-half of
the cost of such engineer's determination.
9. Maintenance and Repair. 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) ceiling tiles, and (v) all tenant improvements. Except for Tenant's
maintenance obligations indicated in the foregoing sentence, 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 acts of Tenant, its employees or invitees,
which damage shall be repaired by Landlord at Tenant's expense. Landlord shall
have no liability for failure to perform required maintenance and repair unless
written notice of the needed maintenance or repair is given by Tenant and
Landlord fails to commence efforts to remedy the problem in a reasonable time
and manner or unless such maintenance and repair is caused by Landlord's
negligence or willful misconduct. Landlord shall have the right to erect
scaffolding and other apparatus necessary for the purpose of making repairs,
and Landlord shall have no liability for interference with Tenant's use because
of repairs and installations. Tenant shall have no claim against Landlord for
any interruption
2. OFFICE LEASE
10
or reduction of services or interference with Tenant's occupancy, and no such
interruption or reduction shall be construed as a constructive or other
eviction of Tenant.
10. Alterations. Tenant shall not make or suffer to be made any alterations,
additions or improvements to the Premises, change the color of the interior, or
install any wall or floor covering without Landlord's prior written consent. Any
such improvements, alterations, wiring, cables or conduit installed by Tenant
shall at once become part of the Premises and belong to Landlord except for
Tenant's removable machinery and unattached removable trade fixtures and those
trade fixtures that can be removed without material damage to the Building
without compensation to Tenant. Landlord may at its option require that Tenant
remove any improvements, alterations, wiring, cables or conduit installed by
Tenant and restore the Premises to the original condition upon termination of
this Lease. Landlord shall have the right to approve the contractor used by
Tenant for any work in the Premises, to require and approve plans and
specifications for such work and to post notices of nonresponsibility in
connection with any work being performed by Tenant in the Premises.
11. Indemnity. Tenant shall not allow any items to attach to the Building or
Tenant's interest in the Premises as a result of its activities. Tenant shall
indemnify and defend Landlord and its managing agents from any claim,
liability, damage, or loss occurring on the Premises, arising out of any
activity by Tenant, its agents, or invitees or resulting from Tenant's failure
to comply with any term of this Lease. Neither Landlord not its managing agent
shall have any liability to Tenant because of loss or damage to Tenant's
property or for death or bodily injury caused by the acts or omissions of
other Tenants of the Building, or by third parties (including criminal acts).
12. Insurance. Tenant shall, at its expense, carry at all times during the
term of this Lease, public liability insurance in respect of the Premises and
the conduct of operation of the business therein, with lease at not less than
One Million Dollars ($1,000,000.00) combined single limit bodily injury and
property damage which insurance shall have an endorsement naming Landlord and
Landlord's managing agent, if any, as an additional insured and covering
liability insured under paragraph 11 of this Lease and waiving the insurer's
right of subrogation as provided in paragraph 14 of this Lease. Tenant shall
furnish a certificate evidencing such insurance which shall state that the
coverage shall not be cancelled or materially changed without ten (10) days'
advance notice to Landlord and Landlord's managing agent, if any. A renewal
certificate shall be furnished at least thirty (30) days prior to expiration of
any policy. 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 8 VII or higher by Best's Insurance
Rating Service.
13. Fire or Casualty. "Major Damage" means damage by fire or other casualty to
the Building or the Premises which causes the Premises or any substantial
portion of the Building to be unusable, or which will cost more than 25% of the
pre-damage value of the Building to repair, or which is not covered by
insurance. In case of Major Damage, Landlord may elect to terminate this Lease
by notice in writing to Tenant within thirty (30) days after such date. If this
Lease is not terminated following Major Damage, or if damage occurs which is not
Major Damage, Landlord shall promptly restore the Premises to the condition
existing just prior to the damage. Tenant shall promptly restore all damage to
tenant improvements or alterations installed by Tenant or pay the cost of such
restoration to Landlord if Landlord elects to do the restoration of such
improvements. Rent shall be reduced from the date of damage until the date
restoration work being performed by Landlord is substantially complete, with the
reduction to be in proportion to the area of the Premises not usable by Tenant.
14. Waiver of Subrogation. Tenant shall be responsible for insuring its
personal property and trade fixtures located on the Premises and any
alterations or tenant improvements it has made to the Premises. Neither
Landlord, its managing agent nor Tenant shall be liable to the other for any
loss or damage caused by water damage, sprinkler leakage, or any of the risks
that are or could by covered by a standard all risk insurance policy with an
extended coverage endorsement, or for any business interruption, and there
shall be no subrogated claim by one party's insurance carrier against the other
party arising out of any such loss.
15. Eminent Domain. If a condemning authority takes title by eminent domain
or by agreement in lieu thereof to more than 25% of the Building then Landlord
may terminate this Lease effective on the date that possession is taken by the
condemning authority. If such a taxing is sufficient to render the Premises
unsuitable for Tenant's use, then either party may elect to terminate this Lease
effective on the date that possession is taken by the condemning authority.
Rent shall be reduced for the remainder of the term in an amount proportionate
to the reduction in area of the Premises caused by the taking. All condemnation
against Landlord or the condemnation award because of the taxing although
Tenant shall have the right to make a separate claim against the condemning
authority to recover the value of its trade fixtures, personal property and
relocation costs.
16. Assignment and Subletting. This Lease shall bind and inure to the benefit
of the parties, their respective heirs, successors, and assigns, provided that
Tenant not assign its interest under this Lease or sublet all or any portion of
the Premises without first obtaining Landlord's consent in writing; provided
Tenant shall have the right, without Landlord's consent, to assign this Lease
or sublet all or any part of the Premises to parent, subsidiary or affiliate of
Tenant or to any person, firm or corporation which shall be controlled by,
under the control of, or under common control with Tenant, or any corporation
into which Tenant may be merged or consolidated or which purchases all or
substantially all of the assets of Tenant, as long as the net worth of the
purchaser or assignee is no less than that of Tenant. Any transfer in violation
of this requirement shall be null and void as to the Landlord. This provision
shall apply to all transfers by operation of law including but not limited to
mergers and changes in control of Tenant. No assignment shall relieve Tenant of
its obligation to pay rent or perform other obligations required by this Lease,
and no consent to one assignment or subletting shall be a consent to any
further assignment or subletting. Landlord shall not unreasonably withhold its
consent to any assignment, or to subletting provided (i) the subrental rate or
effective rental paid by the subtenant or assignee is not less than eighty
percent (80%) of the current scheduled rental rate of the Building for
comparable space, (ii) the proposed subtenant or assignee is compatible with
Landlord's normal standards for the Building, and (iii) Landlord shall have
received any information concerning the financial condition of the proposed
subtenant or assignee which Landlord reasonably requests and Landlord shall
have reasonably approved the same. If Tenant proposes a subletting or
assignment to which Landlord is required to consent under this paragraph,
Landlord shall have the option of terminating the Lease and dealing directly
with the proposed subtenant or assignee, or any third party. If an assignment or
subletting is permitted, any cash profit, or the net value of any other
consideration received by Tenant as a result of such transaction shall be paid
to Landlord promptly following its receipt by Tenant; provided, any money
received by Tenant for equipment,
3. OFFICE LEASE
11
stock, or other property of Tenant shall belong solely to Tenant. Tenant shall
pay any costs incurred by Landlord in connection with a request for assignment
or subletting, including reasonable attorneys' fees.
17. Default. Any of the following shall constitute a default under this Lease:
a. Tenant's failure to pay rent or any other charge under this
Lease within ten (10) days after written notice from Landlord that such
payment has not been made when due (provided, no such notice shall be
given if Landlord has provided Tenant with the such written notice during
the previous 12 month period), or failure to comply with any other term or
condition within twenty (20) business days following written notice from
Landlord specifying the noncompliance. If such noncompliance cannot be
cured within the twenty (20) day period, this provision shall be
satisfied if Tenant commences correction within such period and
thereafter proceeds in good faith and with reasonable diligence to effect
compliance as soon as possible and within a reasonable time after the
date of said notice of Landlord. Time is of the essence of this Lease.
b. 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
statute, 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
c. If within sixty (60) 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 statute, law or regulation, such proceeding
shall not have been dismissed or if, within sixty (60) 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
d. 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.
e. Assignment or subletting by Tenant in violation of paragraph
16:
f. (Intentionally deleted).
During any twelve (12) month period, Tenant shall be entitled to
only one (1) notice pursuant to this Section 17 for each type of default.
18. Remedies for Default. In case of default as described in paragraph 17
Landlord shall have the right to the following remedies which are intended to
be cumulative and in addition to any other remedies provided under applicable
law:
a. Landlord may terminate the Lease and retake possession of the
Premises. Following such retaking of possession efforts by Landlord to
relet the Premises shall be sufficient if Landlord follows its usual
procedures for finding tenants for the space at rates not less than the
current rates for other comparable space in the Building. 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 Landlord has other
vacant space in the Building, prospective tenants may be placed in such
other space without prejudice to Landlord's claim to damages or loss of
rentals from Tenant.
b. Landlord may recover all damages caused by Tenant's default
which shall include an amount equal to (i) rentals lost because of the
default, (ii) lease commissions paid for this lease, (iii) the amortized
cost of the initial Tenant Improvements described in Exhibit B, (iv) all
legal expenses and other related costs incurred by Landlord following
Tenant's default, and (v) all costs incurred by Landlord in reletting the
Premises. To the extent permitted under Oregon Law, Landlord may xxx
periodically to recover damages as they occur throughout the lease term,
and no action for accrued damages shall bar a later action for damages
subsequently accruing. Landlord may elect in any one action to recover
accrued damages plus damages attributable to the remaining term of the
Lease. Such damages shall be measured by the difference between the rent
under this Lease (including an estimated amount of Additional Rent as
determined by Landlord) and the reasonable rental value of the Premises
for the remainder of the term, discounted to the time of judgment at the
prevailing interest rate on judgments.
c. Landlord may make any payment or perform any obligation
which Tenant has failed to perform, in which case Landlord shall be
entitled to recover from Tenant upon demand all amounts so expended, plus
interest from the date of the expenditure at the rate of one and one-half
percent per month. Any such payment or performance by Landlord shall not
waive Tenant's default.
d. 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.
e. 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 Landlord's damages resulting from the
breach. Even if the Landlord takes possession
4. OFFICE LEASE
12
of, and relets, the Premises in order to mitigate its damages. It shall
not constitute a termination of Tenant's contractual liability unless
Landlord releases Tenant from its liability in writing.
19. Surrender. On expiration or early termination of this Lease, Tenant
shall deliver all keys to Landlord and surrender the Premises vacuumed,
swept, and free of debris and in the same condition as at the
commencement of the term subject only to reasonable wear from ordinary
use. Tenant shall remove all of its furnishings and trade fixtures that
remain its property and restore all damage resulting from such removal.
Failure to remove shall be an abandonment of the property, and Landlord
may dispose of it in any manor without liability. If Tenant fails to
vacate the Premises when required, including failure to remove all its
personal property. Landlord may elect either (i) to treat Tenant as a
tenant from month to month, subject to the provisions of this Lease
except that rent shall be one and one-half times the total rent being
charged when the lease term expired; or (ii) to eject Tenant from the
Premises and recover damages caused by wrongful holdover.
20. Regulations. Landlord shall have the right, but shall not be obligated,
to make, revise and enforce regulations or policies consistent with this
Lease for the purpose of promoting safety, health (including regulation
or prohibition of smoking), order, economy, cleanliness, and good service
to all tenants of the Building. All such regulations and policies shall
be complied with as if part of this Lease.
21. Access. During times upon prior notice other than normal Building hours
Tenant's officers and employees or those having business with Tenant may
be required to identify themselves or show passes in order to gain access
to the Building. Landlord shall have no liability for permitting or
refusing to permit access by anyone. Landlord shall have the right to
enter upon the Premises at any time by passkey or otherwise to determine
Tenant's compliance with this Lease, to perform necessary services,
maintenance and repairs or alterations to the Building or the Premises,
or to show the Premises to any prospective tenant or purchasers. Except
in case of emergency, such entry shall be at such times and in such
manner as to minimize interference with the reasonable business use of
the Premises by Tenant.
22. Furniture and Bulky Articles. Tenant shall move furniture and bulky
articles in and out of the Building or make independent use of the
elevators only at times approved by Landlord following at least 24 hours'
written notice to Landlord of the intended move. Landlord shall not
unreasonably withhold its consent under this paragraph.
23. Notices. Any notices, demands, or other communications permitted or
required to be given under this Agreement shall be in writing and
personally delivered or sent by first class mail, or by certified or
registered mail, return receipt requested, postage prepaid, addressed to
the parties at the addresses listed above, or at such other addresses as
the parties may from time to time designate in writing. All notices shall
be deemed received on the date delivered, if personally delivered, or on
the earlier of two (2) days after mailing or the date delivery is
officially recorded on the return receipt if sent by certified or
registered mail.
24. Subordination. This Lease shall be subject to and subordinate to any
mortgages, deeds of trust, ground leases, or land sale contracts
(hereafter collectively referred to as "encumbrances") now existing
against the Building. At Landlord's option this Lease shall be subject
and subordinate to any future encumbrance hereafter placed against the
Building (including the underlying land) or any modifications of existing
encumbrances, and Tenant shall promptly execute such documents as may
reasonably be requested by Landlord or the holder of the encumbrance to
evidence this subordination. If Tenant fails to execute, acknowledge or
deliver any such instruments within ten (10) business 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.
25. Transfer of Building. If the Building is sold or otherwise transferred by
Landlord or any successor, Tenant shall attorn to the purchaser or
transferee and recognize it as the lessor under this Lease, and, provided
the purchaser or transferee assumes all obligations hereunder, the
transferor shall have no further liability hereunder.
26. Es????. Either party will within ten (10) business days after notice from
the other execute, acknowledge and deliver to the other party a
certificate certifying whether or not this Lease has been modified and is
in full force and effect; whether there are any modifications or alleged
breaches by the other party; the dates to which rent has been paid in
advance, and the amount of any security deposit or prepaid rent; and any
other facts that may reasonably be requested. Failure to deliver the
certificate within the specified time shall be conclusive upon the party
of whom the certificate was requested that the Lease is in full force and
effect and has not been modified except as may be represented by the
party requesting the certificate. If requested by the holder of any
encumbrance, including any ground lessor, Tenant will agree to give such
holder or lessor notice of and opportunity to cure any default by
Landlord under this Lease.
27. Attorney's Fees.
(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 of expenses incurred by the
nondefaulting party.
(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, 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.
(3) Definitions. For purposes of this Lease, 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 Lease, the term
5. OFFICE LEASE
13
fees and expenses includes But is not limited to long-distance telephone
charges; expenses of facsimile transmission; expenses for postage including
costs of registered or certified mail and return receipts, express mail, or
parcel delivery; 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.
28. Quiet Enjoyment. Landlord warrants that so long as Tenant complies with
all terms of this Lease shall be entitled to peaceable and undisturbed
possession of the Premises free from any eviction or disturbance by Landlord.
Neither Landlord nor its managing agent shall have any liability to Tenant for
loss or damages arising out of the acts, including criminal acts, of other
tenants of the Building or third parties, nor any liability for any reason which
exceeds the value of its interest in the Building.
29. Additional Rent: Cost-of-Living Adjustment. On each anniversary date of
this lease, the Landlord shall adjust the base rental in the same percentage as
the increase, if any, in the consumer Price Index published by the United
States Department of Labor, Bureau of Labor Statistics. In no event, however,
shall such increase exceed 3% per annum. The change shall be computed by
comparing the schedule entitled "U.S. City Average, All items, All Urban
Consumers, 1982-84 100 for the latest available month proceeding the
month in which the lease term commenced with the same figure for the same month
in the years for which the adjustment is executed. All comparisons shall be
made using index figures derived from the same base period and in no event
shall this provision operate to decrease the monthly rental for the Premises
below the initial stated monthly rental. If the index cited above is revised or
discontinued during the term of this Lease then the index that is designated by
the Portland Metropolitan Association of Building Owners and Managers to
replace is shall be used.
30. Use of Common Areas and Facilities: All common facilities and areas
furnished by Landlord in or near the Building, pedestrian sidewalks and ramps,
landscaped areas, exterior stairways, restrooms and other areas provided by
Landlord for the general use. In common, of tenants, their officers, agents,
employees and customers shall at all times be subject to the exclusive control
and management of Landlord. Without limiting the score 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 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, then at all times
Tenant's use (including use by Tenant's employees, agents, invitees and
licensees) of such surface parking area shall not exceed the Tenant's
percentage of the Building as specified herein.
31. Environmental Law Compliance and Indemnification: For purposes of this
Section, the term "Hazardous Substances" shall mean and include all hazardous
and toxic substances, waste or materials, any pollutant or containment,
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 "Environmentally Laws" shall mean and
include all federal, state and local statutes, ordinances, regulations and rules
presently in force or hereafter that to the best of its current actual
knowledge, the Building is 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 in or about
the Building. 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. Tenant shall
indemnify and hold harmless Landlord, and 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, officer, agents and
employees from and against any and all claims arising from or in connection with
the violation of Environmental Laws occurring in, at or about the Building 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.
32. 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 detect
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.
33. Nonrecourse Lease. Tenant shall look only to Landlord's estate and
property in 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.
34. Complete Agreement. This Lease and the attached Exhibits and Schedules,
if any, constitutes the entire agreement of the parties and supersedes all
prior written and oral agreements and representations. Neither Landlord nor
Tenant is relying on any representations other than those expressly set forth
herein.
35. Space Leased As Is; Tenant Maintenance of the Premises. Except as provided
in Exhibit B attached hereto, unless otherwise stated in this Lease, the
Premises are leased as is in the condition now existing with no alterations or
other work to be performed by Landlord.
36. Guaranty. Intentionally deleted.
37. Captions. The titles to the paragraphs of this Lease are descriptive only
and are not intended to change or influence the meaning of any paragraph or to
be part of this Lease.
6. OFFICE LEASE
14
38. Nonwaiver. Failure by Landlord to promptly enforce any regulation, remedy
or right of any kind under this Lease shall not constitute a waiver of the same
and such right or remedy may be asserted at any time after Landlord becomes
entitled to the benefit thereof notwithstanding delay in enforcement.
39. 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 to 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 to 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.
40. Exhibits. The Exhibits attached hereto are incorporated herein by this
reference and made a part of this Lease.
41. Building and Tenant Improvements. Landlord, at Landlord's expense shall
construct the Premises in accordance with the "Tenant Improvements to Lease
Premises" (the "Tenant Improvements") delineated on the attached Exhibit A
(Floor Plan of the Premises) and Exhibit B (Building Standard Improvements and
Tenant Improvements) and shall remodel the Building at its expense in
accordance with the "Building Standard Improvements" (the "Building
Improvements") delineated on the attached Exhibit B. It is also agreed that
Landlord shall provide ADA compliant restrooms and common areas. Landlord has
provided the space plan and will provide the construction documents for the
Tenant Improvements at its sole cost and expense. Construction documents shall
be approved by Landlord and Tenant prior to commencement of construction. The
design and construction of additional tenant improvements or upgrades thereof
requested by Tenant (including Tenant's built-in furniture and special finishes
and the like) or any change orders in the tenant improvements, shall require
approval of Landlord and be at the sold cost of Tenant. Tenant shall pay for
any such costs, one-half prior to commencement of construction and the other
half when such improvements are substantially completed to Tenant's reasonable
satisfaction.
42. First Option to Expand (Third Floor). Tenant shall have an option to
expand into the adjacent third floor, which contains approximately 8,223 square
feet. Such expansion option must be exercised by giving Landlord written notice
of such intent by no later than October 31, 1995. If Tenant exercises such
option, Tenant shall commence occupancy of the third floor 120 days following
the date that such notice is given to Landlord. The rental rate for this floor
shall be the same ($12 per square foot until June 1, 1998 when the Base Rental
is increased to $13 per square foot) as Tenant is currently paying on the
original premises (before Tenant is required to take occupancy), and the term
shall run concurrently with the original term (June 1, 1995, through May 31,
2000). Landlord shall provide substantially the same level of quality and
finish as the original premises. In consideration for Landlord's agreement to
hold this floor off the marketplace until the end of August, in the event
Tenant elects not to proceed with the expansion, a cash penalty of $14,600.00
shall be paid on September 1, 1995, together with the base rental due for
September of 1995.
43. Right of First Refusal (Second Floor). At any time during the term of
this Lease that Landlord intends to lease the second floor of the Building to a
prospective tenant:
a. Landlord shall give written notice to Tenant of such intention,
together with the name and address of the prospective tenant, and such other
information as Tenant may reasonably require in connection with such
transaction. Landlord shall, by such notice, also furnish Tenant with the terms
and conditions of the proposed lease.
b. Within seven (7) business days after receipt of the notice
described in subparagraph a. above, Tenant shall either approve the transaction
or exercise Tenant's right of first refusal and execute a lease amendment in
accordance with the terms of the notice described in subparagraph a. above.
c. In the event that Tenant declines to exercise its right of first
refusal set forth above, Landlord shall have may enter into a lease agreement
with such prospective tenant in accordance with Landlord's notice to Tenant if
Landlord does not consummate the lease transaction in accordance with the terms
of the lease disclosed to Tenant, Tenant's rights under this Section 43 shall be
reinstituted.
44. Right of First Opportunity. The "Additional Space" is the leasable area on
the third floor in the Building, exclusive of the Premises. At any time during
the Term of this Lease that Landlord quotes or intends to quote to a third party
prospective tenant (other than an existing tenant who is renewing or extending
its lease), on Landlord's initiative or in response to an inquiry from such a
prospective tenant the term and the financial consideration for which Landlord
would be willing to lease all or a portion of the Additional Space, Landlord
shall communicate the same information to Tenant. Tenant specifically
acknowledges that, once a third party may be willing to lease the Additional
Space for a term which is longer than the unexpired balance of the Term hereof
(or as part of a larger space). Landlord may offer the Additional Space or the
applicable portion thereof to Tenant on terms which require Tenant to extend the
balance of the Term hereof to coincide with the length of the term being
considered with respect to a third party as a condition to Landlord's offer and
to Tenant. Tenant shall have seventy-two (72) hours after receipt of such
communication to execute a lease or an addendum hereto with Landlord for the
Additional Space or the applicable portion on the terms set forth herein not
inconsistent with such communication. Should Tenant fail to execute such a lease
or addendum, or otherwise indicate rejection of such communication, Landlord may
negotiate with such third party and execute a lease with the third party on any
terms negotiated, whether similar or dissimilar to those originally communicated
to Tenant, so long as Landlord's communication to Tenant was made in good faith.
Tenant's failure to execute an addendum or a new lease as herein provided shall
not terminate Tenant's rights under this Section if a lease with the third party
is not executed; provided however, if a lease with the third party is signed,
this shall terminate Tenant's rights hereunder as to such of the Additional
Space as is so leased and also to any of the Additional Space not so issued to
the third party but which is then separated from the Premises by the space
leased to the third party. All communications and notices under this Section
shall be hand delivered during business hours to Landlord at 000 X.X. Xxxxxxxx,
Xxxxxxxx, Xxxxxx 00000 and to Tenant at the Premises. This is not an option nor
a right of first refusal; Tenant shall not have rights such as those of first
refusal. The rights of Tenant under this Section 44 are not assignable and shall
terminate upon any assignment, sublease, or event of default hereunder by
Tenant, or any termination of this Lease or of Tenant's right of possession
hereunder.
45. Option to Extend.
7. OFFICE LEASE
15
x. Xxxxx of Option. Landlord hereby grants to Tenant the option to
extend this Lease for two additional three-year terms (the "Extension Terms")
commencing on the first day after the expiration date of the initial Term or
the first Extension Term, as the case may be.
b. Exercise. Tenant must exercise the option to renew, if at all, by
giving Landlord written notice of such exercise not more than 180 days nor less
than 120 days prior to the expiration date of the initial Term of the first
Extension Term, as the case may be. Upon the exercise of the option to renew,
the Term of this Lease shall be extended through the expiration date of the
Extension Term on the same terms and conditions as contained herein, except
that (a) there shall be no further right to again renew the Term of this Lease
(after the second Extension Term), and (b) Base Monthly Rent during the
Extension Terms shall be determined pursuant to this Section 45.
c. Rental. Base Monthly Rent for the Extension Term shall be the
greater of (a) the Base Monthly Rent schedule for the final month of the
initial Term, or (b) the fair market rental value of the Premises. As used
herein, the fair market rental value of the Premises is defined as the amount
of base monthly rental (payable on an equal monthly payment basis, including
any appropriate rental escalation that would normally be imposed), which a
willing and fully informed leasee would pay and which a willing and fully
informed lessor would accept for rental of the Premises for a three-year term as
of the first day of the Extension Term, taking into account that all tenant
improvements are owned by Landlord. In determining the fair market rental
value, reference may be made to other recent leases in the Project or
immediately surrounding areas, taking into consideration the interior
improvements of the other spaces and the creditworthiness of the lessees of the
same.
Landlord and Tenant shall attempt, in good faith, to agree upon the
fair market rental value of the Premises. If they are unable to agree within
thirty (30) days of Tenant's exercise of the option to renew, then, within ten
(10) days thereafter, Landlord and Tenant shall jointly appoint an MAI or other
qualified appraiser, who shall deliver, within thirty (*30) days after
appointment, his or her written letter of opinion as to the fair market rental
value of the Premises effective as of the date the rental adjustment is to
occur.
In the event the parties are unable to agree on the appraiser,
either party shall have the right to apply to the Circuit Court of Multnoman
County, Oregon for the appointment of the appraiser. If for any reason, the
fair market rental value of the Premises is not determined prior to the first
day of the Extension Term, this Lease shall nevertheless remain in effect, and
during the interim period until such rental rate is fully determined, Tenant
shall pay, as Base Monthly Rent, an amount equal to the amount which was
scheduled to be paid for the final ??? month of the initial Term. Any accrued
payment shortage, together with the Interest at the rate of twelve percent
(12%) per annum on unpaid amounts from the applicable dates, shall be made
within ten (10) days of the determination of the renewal rate.
46. Option to Terminate. Tenant shall have the right to terminate the entire
lease or any portion of the leased premises any time after the third year of
the Lease. Tenant shall provide nine (9) months' advance written notice or its
intent to exercise this option. It is agreed and understood that the penalty
for such termination shall be the repayment to Landlord of any amortized Tenant
improvements and leasing commissions ?????????????? to the portion or portions
of space to terminated, calculated at an annual rate of 10 percent interest.
47. Right of First Refusal. In the event Landlord intends to make a sale of
the Building during the term of this Lease, as the same may be extended:
a. Landlord shall give written notice ("Landlord's Notice") to
Tenant of such intention, together with the name and address of the intended
purchaser, and such other information as Tenant may reasonably require in
connection with such transaction. Landlord shall, by such notice, also furnish
Tenant with the terms and conditions of the proposed sale. No proposed
transaction shall be deemed bone fide which is not evidenced by a written
contract of sale, subject to the approval and right of first refusal contained
herein, executed by the Landlord and the proposed purchaser and containing all
the terms of the sale proposed to be made.
b. Within ten (10) days after receipt of Landlord's Notice
described in (a) above, Tenant shall either approve the transaction or exercise
Tenant's right of first refusal and execute a contract of sale in accordance
with the terms of Landlord's Notice described in a. above. The purchase price
shall be paid in full at closing.
c. In the event Landlord does not enter into a sale agreement in
accordance with the terms of the sale disclosed to the Tenant in Landlord's
Notice. Tenant's right of first refusal as set forth in this paragraph shall be
reinstituted.
48. Limitation on Options. The rights granted to the Tenant under Sections 42
through 47 ("Tenant's Options") are personal to the Tenant named herein and may
not be assigned as such Tenant, either separately or in connection with an
assignment of this Lease. The rights set forth in Tenant's Options shall only
be available in the event Tenant has not previously assigned the Lease and is
in actual occupancy of the entire Premises at the time Tenant would otherwise
be entitled to the rights set forth in Tenant's Options. The rights granted in
Tenant's Options may be exercised only in the event that Tenant is not in
default of the terms and provisions of this Lease at the time of exercise. In
the event that this Lease or Tenant's right of occupancy is terminated for any
reason whatsoever, either before or after exercise of any of the rights set
forth in Tenant's Options, the rights granted to Tenant in Tenant's Options
shall also terminate at the same time.
49. Card-Key Entry System, Landlord, at Landlord's expense, shall provided a
card-key entry system for the lobby, elevators, and the stairwells of the
Building, and for each floor of the Building Tenant occupies.
50. Signage/Building Name Change. Landlord, at its sole expense, shall provide
Building standard signage for the Tenant on the fourth, fifth, and sixth floors
and the Building lobby directory. At such time as Tenant occupies the sixth,
fifth, and fourth floors of the Building, Landlord shall at Tenant's option
rename the Building as the "Creative Multimedia Building" at Tenant's sole
expense. All action to be taken and expenses incurred in connection therewith
8. OFFICE LEASE
16
shall be Tenant's sole responsibility. Landlord shall cooperate with Tenant in
renaming the Building but shall not be responsible for accomplishing the same
or payment of any expense incurred in connection therewith, any and all such
signage shall be subject to Section 6 above.
IN WITNESS WHEREOF, the duly authorized representatives of the
parties have executed this Lease as of the day and year first written above.
LANDLORD: COMMERCE BUILDING LIMITED
PARTNERSHIP, an Oregon Limited
Partnership
Address for notices:
000 XX 0 XXX By: XxXxxxxx, Inc. an
---------------------------
PORTLAND Oregon corporation, general partner
---------------------------
97204 By: /s/ D. XXXXXX XXXXXXXX
-------------------------------
D. Xxxxxx XxXxxxxx
President
TENANT: CREATIVE MULTIMEDIA CORPORATION, an
Oregon corporation
Address for notices:
By: /s/ [Signature Illegible]
--------------------------- -----------------------------------
Its: President/CEO
--------------------------- ----------------------------------
---------------------------
Exhibit A - Floor Plan
Exhibit B - Building Standard Improvements and Tenant Improvements
Exhibit C - Janitorial Specifications
Exhibit D - Furniture Plan
9. OFFICE LEASE
17
EXHIBIT A
FLOOR PLAN
18
CREATIVE MULTIMEDIA
COMMERCE BUILDING
FOURTH FLOOR PLAN
19
CREATIVE MULTIMEDIA
COMMERCE BUILDING
FIFTH FLOOR PLAN
20
CREATIVE MULTIMEDIA
COMMERCE BUILDING
SIXTH FLOOR PLAN
21
EXHIBIT B
BUILDING STANDARD IMPROVEMENTS AND TENANT IMPROVEMENTS
22
EXHIBIT B
BUILDING STANDARD IMPROVEMENTS AND TENANT IMPROVEMENTS
TO LEASED PREMISES
Building Standard Improvements
Pursuant to Sections 41 and 46 of the Lease, the following construction items
shall be defined as "Building Standard Improvements," and by such definition,
shall be excluded in calculations to determine the "unamortized cost" of tenant
improvements provided to leased premises should Tenant elect to exercise its
termination right under Section 46 of the Lease.
1. ADA compliant washrooms and common areas.
2. Fire Protection: Exit lights, smoke detectors, audio/visual alarms, and
speaks as required by Code. Fully sprinklered in accordance with local
Fire Codes and approval by the building officials.
3. Elevator upgrades.
4. Window Coverings: Building owner to provide Levolor Lorentzan Riviera 1"
metal blinds throughout the premises, or equivalent.
5. Cabling: Landlord to provide main cabling to each floor from basement area
including phone service to each floor so Tenant's phone/data vendor, at
Tenant's expense, can wire their network off of the building service.
6. Heating, Ventilating and Air Conditioning: Landlord to provide a complete
HVAC system that complies with Sections 7b and 7c of the Base Lease
document.
7. Ceiling:
Exposed ceiling.
Approximate ceiling height: 10'-8"
8. Electrical:
a. Lighting
(1) Landlord acknowledges Tenant's selection of Ledaihe Apex 55
suspended Flourescent Light Fixtures (either 2'x6' or 2'x8'
fixtures). Any additional costs, however, above our proposed
2'x4', 3-lamp Octron 35k or equivalent shall be borne by the
Tenant.
23
Exhibit B
Page 2
(2) Exit Light Fixture
b. Power and Signal
(1) Four-plex Outlets Wall Mounted.
Color: To be selected by Owner.
Height: 18" above finish floor to centerline.
(2) Wall Switch
20 Ampere, 120/277 volts; single pole
Color: To be selected by Owner
Height: 42" above finished floor to centerline
9. Execution
a. Lighting
(1) Lighting density is to meet the current Suite energy code.
(2) Emergency lighting ballasts are to be used as needed in paths of
egress, within tenant spaces.
(3) Common area egress lighting is to be connected to the building
emergency circuits.
b. Power
Convenience branch circuits are not to exceed 4 duplex outlets each.
c. Signal
All signal circuit cables are to be rated class 2.
10. Card Key Entry System:
Landlord, at Landlord's expense, shall provide a card key entry system for
the lobby, elevators, and the stairwells of the building, and for each
floor of the building Tenant occupies.
24
Exhibit B
Page 3
Tenant Improvements to Leased Premises
1. Partitions
Standard Full-Height Partition
2 1/2", 25 ga. galv. steel studs at 24" o.c.
5/8 gypsum wallboard each side
2. Doors and Relites
Doors
a. Sixth Floor Main Entry Doors
Double wood maple entry doors with clear glass relites in the door.
Relite Dimension 2'-6"w x 5'-0" ht.
b. Standard Entry/Reception Door
3'0" x 7'-0" x 1 3/4" solid plain clear sliced grain white maple
door in metal frame, factory finish, non-rated.
c. Standard Interior Office Door
3'0" x 7'-0" x 1 3/4" solid plain clear sliced grain white maple
door in metal frame, factory finish, non-rated.
d. Standard Closet Door
1'-6" x 7'-0" x 1 3/4" and 3'-0" x 7'-0" x 1 3/4" solid plain clear
sliced grain white maple door in metal frame, factory finish.
Relites
Provide clear glass relites (approximately 2'-6"w x 5'-0" ht unless
otherwise stated) at these locations:
6th Floor 1 door at Corey's office
1 wall in Corey's office
1 door at small conference room
2 doors at large conference room
Approximately 4'x8'x1.4" clear glass curved relite in ACI
metal frame in large conference room
--------------------------------------------------------------------------------
25
Exhibit B
Page 4
Approximately 4'x8'x1/4" clear class curved relite in ACI
metal frame and small conference room
5th Floor 2 doors at large conference room
1 door at small conference room
Approximately 4'x8'x1/4" curved clear glass relite in ACI
metal frame in large conference room
Approximately 4'x8'x1/4" curved clear glass relite in ACI
metal frame in small conference room
4th Floor 1 door at small conference room
Approximately 4'8'x1/4" curved clear glass relite in ACI
metal frame in small conference room
Tenant, at Tenant's expense, may select additional relites for office
walls or doors.
3. Hardware.
a. Doors
All hardware to be levered "Schlage" "D" Series (or equivalent)
hardware. Model Name Sports, No. 605 with finish No. 626 (satin
chromium plated). May be available in other finishes if necessary to
match the tenant interiors.
(1) Suite entry/reception door with lockset.
(2) Interior office doors with latchsets.
(3) Interior office doors with locksets.
(4) Pair of closet doors.
(5) Pair of interior doors.
Door Stop: 407 1/2 Ives or equal.
Silencers: #20 or equal
LCN Closer: 4110 or 4010
26
Exhibit B
Page 5
b. Casework
(1) Cabinets
"European" hinge
96 mill, wire pull
shelf standards
(2) Open Shelving
shelf standards
(3) Closet Shelf and Rod
shelf support
rod and flange at each end
4. Casework
a. Base Cabinet
Polylaminate face, plastic laminate countertop and backsplash,
shelves.
b. Upper Cabinet
Polylaminate face, concealed hinges, wire pulls, shelves.
c. Shelving
Shelves on adjustable standards, melamine or equal.
d. Reception Desk
Owner to provide allowance of $5,000 for construction of new
reception desk.
5. Floor Covering
a. Carpet
30 ounce, 100% nylon looptype-Monterey/No. 6014 Tatami
b. Sheet Vinyl
Tarkett Coordinates, or equivalent; manufacturer's standard colors.
c. Vinyl Composition Tile
12" x 12" Tarkett Expressions or equivalent manufacturer's standard
colors.
27
Exhibit B
Page 6
d. Ease
4th and 5th floors: 4" rubber base, no cove at carpet, cove at
resilient floor, 6" rubber base at resilient floor at restrooms, 4"
rubber-base at casework Xxxxx (or equivalent), Xxxxx or Xxxx Sotute.
6th floor: 5" wood base; match the existing.
6. Painting
Xxxxx or equal. One coat primer, two costs finish paint on all walls,
latex eggshell enamel; one standard color; one accent color in reception
area, conference room and other public space, one ceiling color and
exposed ducting color to match.
Tenant, at Tenant's expense, may select a Zolatone paint for accent
finishes or other areas.
7. Plumbing Fixtures
a. Sink (Lunch Xxxx - 0xx Xxxxx; Xxx Xxxx -0xx Xxxxx)
Xxxx, Stainless Steel, barrier free or equal.
Xxxx Valves, Chrome, barrier free or equal.
b. Hot Xxxxx Xxxxxxx
(Xxxxx Xxxx - 0xx Xxxxx; Art Xxxx - 0xx Xxxxx; Xxxxxxx - 0xx Xxxxx)
Ruudglas, undercounter, 6 gal. capacity, 120 volt. or equal
(sinks at Lunch Room & Art Room)
Ruudglas, 50 gal. capacity, 120 volt.
(men and women showers at 0xx xxxxx)
c. Showers
(Men and Women - 0xx Xxxxx)
Fiberglass showers, barrier free.
8. Electrical
a. Lighting
(1) Recessed down light; compact fluorescent reflector oper. down
light: To be selected by Owner.
28
[XXXXXX XXXXXX & XXXXXXX LOGO]
Exhibit B
Page 7
(2) Recessed wall washer: Compact fluorescent wall wash open
downlight. To be selected by Owner.
b. Power and Signal
Telephone/data outlet - wall mounted single gang mudring with 3/4"
raceway and pullstring. Provide main cabling to each floor from
basement area.
AML/cmw
definiti.aml
29
EXHIBIT C
JANITORIAL SPECIFICATIONS
11- OFFICE LEASE 11
30
EXHIBIT D
FURNITURE PLAN
12 - OFFICE LEASE 12
31
CREATIVE MULTIMEDIA
COMMERCE BUILDING
FURNITURE PLAN
FOURTH FLOOR
[DIAGRAM]
32
CREATIVE MULTIMEDIA
COMMERCE BUILDING
FURNITURE PLAN
FIFTH FLOOR
[DIAGRAM]
33
CREATIVE MULTIMEDIA
COMMERCE BUILDING
FURNITURE PLAN
SIXTH FLOOR
[DIAGRAM]
34
[DIAGRAM]
4TH FLOOR - LUNCHROOM
Note: Field verify all dimensions and conditions.
Contact designer if there are plan/elevation discrepancies or questions.
CREATIVE MULTIMEDIA
Commerce Building
4th Floor - Lunchroom
Cabinet Elevations
1/2" x 1'-0"
8/11/95
Ridder Design Studio
0000 XX Xxxxxxxxxx Xx
Xxxxxxxx, XX 00000
Telephone: 000-0000
FAX: 000-0000
35
[CREATIVE MULTIMEDIA LETTERHEAD]
Jan 6, 1996
Xxxxxx XxXxxxxx
Landlord,
Creative Multimedia Bldg.
Portland, OR
Dear Xxxxxx,
Pursuant to our conversation regarding the security system of our building, I
am proposing that we discount our rent over February and March a total $8,825
per month for a total of $17,651.
As we discussed, the bid from American Security came to $15,631.00, (this did
not include the lock work), and the bid from Honeywell came to $20,671.00
including lock work. We agreed to compromise on the different costs, I have set
the compromise level at $17,651.00.
Thanks for your help in this matter,
Xxxxxxx Xxxxxx
Facilities Manager
CMC
36
[CREATIVE MULTIMEDIA LETTERHEAD]
Jan 15, 1996
Xxxxxx XxXxxxxx
Landlord,
Creative Multimedia Bldg.
Portland, OR
Dear Xxxxxx,
This is a change to our agreement of the 6th.
Of the $17,651.00 which you are paying Honeywell for the installation of the
security system, we have already paid $1,480.00. Therefore we will subtract
that much from February's rent which will leave a balance of $16,171.00 which
you will owe Honeywell.
Thanks Again,
Xxxxxxx Xxxxxx
X /s/ XXXXXX XxXXXXXX
-----------------------------
37
FIRST AMENDMENT TO OFFICE LEASE
This First Amendment to Office Lease is entered by and between Commerce
Building Limited Partnership, and Oregon limited partnership ("Landlord"), and
Creative Multimedia Corporation, an Oregon corporation ("Tenant").
RECITALS
A. Landlord and Tenant previously entered into an Office Lease dated
April 7, 1995 (the "Lease"), for the premises (the "Premises") commonly known
as fifth and sixth floors of the Commerce Building located at 000 X.X.
Xxxxxxxx, Xxxxxxxx, Xxxxxx.
B. Landlord and Tenant desire to amend the Lease in accordance with
the terms and provisions hereof.
AMENDMENT
Now, therefore, in consideration of the premises and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereby agree as follows (unless otherwise indicated,
all capitalized terms used herein shall have the same meanings as in the Lease):
1. PREMISES. Landlord hereby leases to Tenant the fourth, fifth, and sixth
floors of the Building for a term commencing (subject to paragraph 2 below)
October 6, 1995, and continuing through September 30, 2000, at a Base Rental of
$24,669.00 per month ($12 per rentable square foot) commencing (subject to
paragraph 2 below) October 6, 1995 (the first month shall be prorated, if
necessary), through and including September 30, 1998, and $26,724.75 per month
($13 per rentable square foot) commencing October 1, 1998, through and
including September 30, 2000, payable in advance on the first day of each
month. Such Base Rental shall be in addition to the Additional Rent payable
under section 29 of the Lease.
2. DELIVERY OF POSSESSION. Landlord shall deliver possession of the Premises
on or before October 6, 1995. It shall be incumbent upon Tenant to provide a
punch list of any minor items not fully completed pursuant to Lease
specifications and deliver notice of the same to Landlord in writing prior to
occupancy. Notwithstanding the delivery of such punch list, possession of the
Premises shall be deemed to have occurred, the term of the Lease shall
commence, and Tenant shall begin paying the Base Rental under the Lease when
Landlord has built out the Premises substantially in accordance with the
specifications set forth in the Lease. Landlord shall have a reasonable time,
but in no event longer than thirty days, in which to complete these minor
repairs and/or improvements, and the Base Rental shall not be abated or offset
during such time unless such work interferes with the conduct of Tenant's
business. In such case, the Base Rental shall be abated in proportion to the
are which is not fully usable or accessible to Tenant until such repairs are
completed. The foregoing is intended supplement and not replace section 1 of
the Lease.
3. OPTION TO EXPAND (SECOND AND THIRD FLOORS). Sections 42 and 43 of the
Lease are hereby deleted and replaced with the following: "Tenant shall have an
option to expand into the adjacent second and third floors of the Building,
which together contain approximately 16,446 rentable
1 - FIRST AMENDMENT TO OFFICE LEASE
38
square feet (8,223 rentable square feet per foot). This option to expand must be
exercised by Tenant giving Landlord written notice of such intent no later than
February 1, 1996. Tenant may elect to expand into just the third floor or both
the second and third floors; provided, Tenant may not expand into just the
second floor. If Tenant exercises such option, Tenant shall commence occupancy
of the third floor or the second and third floors, as the case may be, no sooner
than 120 days and no later than 180 days following the date that such notice is
given to Landlord; provided, Tenant may stagger the date upon which it is to
take occupancy of the second and third floors if it decides to expand into both
such floors. The Base Rental rate for the second and third floors shall be
$8,223.00 per month per floor through September 30, 1998, and $8,098.25 per
month per floor commencing October 1, 1998, through September 30, 2000, and the
term shall run concurrently with the original term as amended herein (October 6,
1995, through September 30, 2000). As with the fourth, fifth, and sixth floors,
such Base Rental shall be in addition to the Additional Rent provided for in
section 29 of the Lease. Landlord shall provide substantially the same level of
quality and finish as the fourth, fifth, and sixth floors of the Building. If
Landlord does not receive such notice of intent to expand from Tenant on or
before February 1, 1996, this option to expand shall automatically terminate and
Landlord may rent either or both the second and third floors to a third party
without any further obligation to Tenant.
4. AFFIRMATION. No other modification of the Lease is made or intended to
be made hereby and, as amended herein, the Lease is hereby confirmed and
reaffirmed by Landlord and Tenant and shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this First Amendment to
Office Lease as of the date(s) indicated below.
LANDLORD: TENANT:
Commerce Building Limited Partnership, Creative Multimedia Corporation,
an Oregon limited partnership an Oregon corporation
By: XxXxxxxx, Inc., an Oregon By: /s/ XXX X. XXXXXX
corporation, general partner ----------------------------------
Xxx Xxxxxx, President
By: ----------------------------- Date: 9-13 , 1995
D. Xxxxxx XxXxxxxx, --------------------------
President
Date: , 1995
--------------------
2 - FIRST AMENDMENT TO OFFICE LEASE
