LEASE
LEASE
DATED: | November 17, 2005 | |
BETWEEN: | SCHNITZER INVESTMENT CORP., an Oregon corporation, SCHNITZER TRUST PARTNERS, an Oregon general partnership, XXXX PROPERTIES LIMITED PARTNERSHIP, an Oregon limited partnership, XXXXXX-NIMBUS LLC, an Oregon limited liability company, XXXX Z’S LLC, an Oregon limited liability company, J. XXXXX XXXXXXX LLC, an Oregon limited liability company, MJMARK LLC, an Oregon limited liability company, DJP NIMBUS, LLC, an Oregon limited liability company, XXXXXX-NIMBUS, LLC, an Oregon limited liability company, XXXXXXX-NIMBUS, LLC, an Oregon limited liability company as tenants in common (collectively, “LANDLORD”) | |
AND: | ACRYMED INCORPORATED, an Oregon corporation (“TENANT”) |
Tenant wishes to lease from Landlord, and Landlord wishes to
lease to Tenant the premises described below on the following
terms and conditions. In consideration of the mutual promises of
the parties set forth below, and other valuable consideration,
the receipt and sufficiency of which are hereby acknowledged,
Landlord and Tenant agree as follows:
1. Premises. The Premises are
approximately 16,238 rentable square feet (the
“Premises”) in Building E (the “Building”).
The Premises are outlined on the attached Exhibit A. The
Building is a part of Nimbus Oaks Industrial Park (the
“Project”) and is located at 0000 XX Xxxxxx Xxxxxx in
Beaverton, Oregon. The Premises shall be delivered to Tenant in
their “As Is” condition subject to Landlord’s
performance of Landlord’s Work (as defined in
Exhibit B) and Landlord’s repair or replacement
at Landlord’s sole cost and expense, to the extent, but
only to the extent, required to be in good operating condition
of the following Building systems serving the Premises:
(i) HVAC, (ii) plumbing, (iii) electrical,
(iv) sprinkler, (v) fire and life safety, and
(vi) overhead doors. Landlord shall also repair or replace
any broken windows in the Premises.
2. Term.
2.1 Lease Term. The Lease term
shall be for seventy-seven (77) months (the
“Term”) commencing on the earlier to occur of:
(i) delivery of possession of the Premises to Tenant with
Landlord’s Work substantially complete, or (ii) the
date of Tenant’s opening for business in the Premises (the
“Commencement Date”) planned to be [February 17,
2006] (the “Scheduled Commencement Date”), and
continuing until the last day of the month that is seventy-seven
(77) months after the Commencement Date (the
“Expiration Date”). If possession of the Premises is
not delivered to Tenant with Landlord’s Work substantially
complete by the date that is thirty (30) days after the
Scheduled Commencement Date (the “Outside Date”),
Tenant shall be entitled to one (1) day’s free rent
for each day of delay in the delivery of the Premises beyond the
Outside Date; provided, however, the Outside Date shall be
delayed one day for each delay due to a Tenant Delay (as defined
below) or a Force Majeure Event (as defined below). Similarly,
the Commencement Date shall be accelerated one (1) day for
each day of delay in substantially completing Landlord’s
Work due to a Tenant Delay. As used herein, the terms
“substantial completion,” “Substantial
Completion,” “Substantially Complete,”
“Substantially complete” and words of similar import
(whether or not spelled with initial capitals) as used in this
Lease shall mean the date of substantial completion of
Landlord’s Work such that Tenant may commence the
installation of any of Tenant’s equipment and occupy the
Premises for the conduct of its business (subject to the
completion of any additional construction to be performed by
Tenant). Landlord’s Work shall be deemed substantially
complete notwithstanding the fact that minor details of
construction, mechanical adjustments or decorations which do not
materially interfere with Tenant’s use and enjoyment of the
Premises remain to be performed (items normally referred to as
“punch list” items). Landlord shall use commercially
reasonable efforts to expeditiously complete all punchlist work
in a timely manner. As used herein, a “Tenant Delay”
is a delay as a result of: (i) Tenant’s failure to
approve any item or perform any other obligation within three
(3) business days after receipt of notice from Landlord;
(ii) Tenant’s request for changes in materials,
finishes or installations other than those readily available;
(iii) Tenant’s request to deviate from the Working
Drawings (as defined on Exhibit B); or
(iv) Tenant’s interference with Landlord’s
construction of Landlord’s Work. As used herein, a
“Force Majeure Event” is (a) the inability to
fulfill, or delay in fulfilling, any obligations under this
Lease by reason of strike, lockout, other labor trouble, dispute
or
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disturbance; (b) governmental regulation, moratorium,
action, preemption or priorities or other controls or the
inability to obtain permits; (c) shortages of fuel,
supplies or labor; (d) any failure or defect in the supply,
quantity or character of electricity or water furnished to the
Premises by reason of any requirement, act or omission of the
public utility or others furnishing the Building with
electricity or water; or (e) for any other reason, whether
similar or dissimilar to the above, or for act of God beyond a
party’s reasonable control.
2.2 Early Access
Rights. Approximately four (4) weeks
prior to the Commencement Date, Tenant shall have rent and
expense free early access to the Premises for the sole purpose
of installing Tenant’s equipment, cabling, fixtures and
furnishing in the Premises. Landlord may terminate Tenant’s
right to early access to the Premises at any time if Landlord
determines that such early access to the Premises in any way
interferes with Landlord’s performance of the construction
and installation of Landlord’s Work.
2.3 Option to Extend. Landlord
hereby grants Tenant the right to extend the term of the Lease
for two (2) additional periods of three (3) years each
(each such extended period is hereinafter referred to as an
“Extended Term”) on the same terms and conditions
contained in the Lease, except that (i) Base Rent for an
Extended Term shall be as set forth hereinbelow, (ii) no
additional options to extend shall apply following the
expiration of the second Extended Term, and (iii) Landlord
shall have no obligation to make any improvements to the
Premises or contribute any amounts therefor. Written notice of
Tenant’s exercise of its option to extend (“Option to
Extend”) the Term of this Lease for an Extended Term must
be given to Landlord no less than nine (9) months prior to
the date the Term of the Lease would otherwise expire. If Tenant
is in default under this Lease that has not been cured during
the applicable cure period, if any, Tenant shall have no right
to extend the Term of this Lease until such default is cured
within the cure period set forth in this Lease for such default,
if any; provided, that the period of time within which said
Option to Extend may be exercised shall not be extended or
enlarged by reason of Tenant’s inability to exercise said
Option to Extend because of a default. In the event Tenant
exercises its Option to Extend the Term of this Lease as herein
provided, Base Rent shall be adjusted as of the commencement
date of such Extended Term as follows (but in no event shall it
be less than the Base Rent for the month immediately prior to
the commencement of such Extended Term):
(a) Not later than six (6) months prior to the
commencement of an Extended Term, Landlord shall provide Tenant
with Landlord’s determination of the fair market Base Rent
for such Extended Term, including periodic increases as dictated
by the current market (“Landlord’s Determination of
Base Rent for Extended Term”). Tenant shall provide notice
to Landlord within ten (10) days after receipt of such
notice from Landlord as to whether Tenant accepts
Landlord’s Determination of Base Rent for Extended Term. In
the event Tenant does not agree to Landlord’s Determination
of Base Rent for Extended Term, Landlord and Tenant shall
attempt to agree upon Base Rent for the Premises for the
Extended Term, such rent to be the fair market rental value of
the Premises for the Extended Term, as defined in
Subsection (c) below. If the parties are unable to agree
upon the Base Rent for the Extended Term by the date three
(3) months prior to the commencement of the Extended Term,
then within ten (10) days thereafter each party, at its own
cost and by giving notice to the other party, shall appoint a
real estate appraiser with at least five (5) years
full-time commercial real estate appraisal experience in the
area in which the Premises are located to appraise and set Base
Rent for the Extended Term. If a party does not appoint an
appraiser within ten (10) days after the other party has
given notice of the name of its appraiser, the single appraiser
appointed shall be the sole appraiser and shall set Base Rent
for the Extended Term. If each party shall have so appointed an
appraiser, the two appraisers shall meet promptly and attempt to
set the Base Rent for the Extended Term. If the two appraisers
are unable to agree within thirty (30) days after the
second appraiser has been appointed, they shall attempt to
select a third appraiser meeting the qualifications herein
stated within ten (10) days after the last day the two
appraisers are given to set Base Rent. If the two appraisers are
unable to agree on the third appraiser within such ten
(10) day period, either of the parties to this Lease, by
giving five (5) days notice to the other party, may apply
to the then presiding judge of the Washington County Circuit
Court for the selection of a third appraiser meeting the
qualifications stated in this Section. Each of the parties shall
bear one-half (1/2) of the cost of appointing the third
appraiser and of paying the third appraiser’s fee. The
third appraiser, however selected, shall be a person who has not
previously acted in any capacity for either party.
(b) The fair market Base Rent shall be fixed by the three
appraisers in accordance with the following procedures. Each
party appointed appraiser shall state, in writing, such
appraiser’s determination of the fair market Base Rent
supported by the reasons therefor and shall make counterpart
copies for the other party
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appointed appraiser and the neutral appraiser. The party
appointed appraisers shall arrange for a simultaneous exchange
of their proposed fair market Base Rent determinations. The role
of the neutral appraiser shall be to select whichever of the two
proposed determinations of fair market Base Rent most closely
approximates the neutral appraiser’s own determination of
fair market Base Rent. The neutral appraiser shall have no right
to propose a middle ground or any modification of either of the
two proposed determinations of fair market Base Rent. The
determination of fair market Base Rent the neutral appraiser
chooses as that most closely approximating the neutral
appraiser’s determination of the fair market Base Rent
shall constitute the decision of the appraisers and shall be
final and binding upon the parties. The appraisers shall have no
power to modify the provisions of this Lease.
(c) For purposes of the appraisal, the term
“— fair market Base Rent —” shall
mean the price that a ready and willing tenant would pay, as of
the Extended Term commencement date, as a base rent to a ready
and willing landlord of premises comparable to the Premises, in
terms of size, quality and comparable term, in their
then-improved state, in the Beaverton, Oregon market, if such
premises were exposed for lease on the open market for a
reasonable period of time; including any rent increases over the
Extended Term. In no event shall there be deducted from such
fair market rental the value of any concessions, including
without limitation, tenant improvements, commission
and/or
“down time.” However, nothing shall preclude Landlord
and Tenant from agreeing to consider tenant improvements
allowances, commissions to brokers or lease concessions outside
of the appraisal process.
(d) The neutral appraiser’s decision shall be made not
later than thirty (30) days after the submission by the
appraisers of their proposals with respect to the fair market
Base Rent. The parties have included these time limits in order
to expedite the proceeding, but they are not jurisdictional, and
the neutral appraiser may for good cause allow reasonable
extensions or delays, which shall not affect the validity of the
award. Absent fraud, collusion or willful misconduct by the
neutral appraiser, the award shall be final, and judgment may be
entered in any court having jurisdiction thereof. The option
privilege granted herein shall not be assigned under any
circumstances unless Landlord shall have consented to such
assignment in writing, which consent may be withheld by Landlord
in its sole discretion.
2.4 Right to Expand. If at any
time during the Term of the Lease, the space in the Building
contiguous with the Premises is available for lease or is about
to become available for lease and so long as Tenant is not in
default of this Lease and subject to the rights of other tenants
of the Project under leases executed prior to the date of this
Lease, Landlord shall notify Tenant of the availability of such
space and the terms upon which Landlord is willing to lease such
space to Tenant (which terms shall be determined by Landlord in
its sole discretion). Tenant shall have five (5) business
days to accept Landlord’s offer. Such right of first offer
is a one (1) time only right. If Tenant fails to accept
Landlord’s offer within such five (5) business day
period, Landlord shall be free to lease such space any time
during the term of this Lease free and clear of any rights of
Tenant. The right of first offer contained herein shall not
apply to any renewal or extension of an existing lease (even if
such lease does not contain an automatic extension right) and
shall be personal to AcryMed Corporation (or a successor
corporation by merger or acquisition).
3. Rent. Rent shall be Base Rent
plus Tenant’s share of Taxes and Operating Expenses and
other charges (“Additional Rent”), as described in
Sections 6 and 7. Rent for the sixth
(6th)
full month of the Lease term shall be paid on or before the
execution date of this Lease. Tenant shall pay all Base Rent and
Additional Rent in advance on the first day of each calendar
month without notice, offset or deduction, unless otherwise
expressly permitted under this Lease. Base Rent for any partial
calendar month shall be prorated based on the number of days in
such month. Base Rent shall be payable as provided below:
Rent per |
||||
Months
|
Square Foot
|
Base Monthly Rent
|
||
1 - 5
|
$0.92 | Abated | ||
6 - 17
|
$0.92 | $14,938.96 | ||
18 - 29
|
$0.95 | $15426.10 | ||
30 - 41
|
$0.98 | $15913.24 | ||
42 - 53
|
$1.01 | $16390.64 | ||
54 - 65
|
$1.04 | $16887.52 | ||
66 - 77
|
$1.07 | $17,374.66 |
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As reflected in Section 3, Tenant shall have no obligation
to pay monthly Base Rent for the first five (5) full months
of the Term, commencing with the Commencement Date (the
“Free Rent Period”). If this Lease is terminated
during such Free Rent Period, Tenant shall not be entitled to
any such rent abatement after the date of termination nor shall
Tenant be entitled to assert any right to rent abatement after
such termination against any sums due Landlord. The rent
abatement granted under this Section is solely for the benefit
of AcryMed Corporation (or a successor corporation by merger or
acquisition), and shall not be transferable to any assignee or
subtenant. In the event of a default by Tenant under the terms
of this Lease which results in early termination pursuant to the
provisions hereof, then as a part of the recovery to which
Landlord shall be entitled shall be included a portion of such
rent which was abated under the provisions of this Section,
which portion shall be determined by multiplying the total
amount of rent which was abated under this Section by a
fraction, the numerator of which is the number of months
remaining in the Term of this Lease at the time of such default
and the denominator of which is the number of months during the
Term of this Lease that Tenant is obligated to pay monthly Base
Rent. Notwithstanding the foregoing, during the Free Rent
Period, Tenant shall pay Tenant’s proportionate share of
Operating Expenses in monthly payments payable on the first day
of each month commencing on the Commencement Date.
4.1 Use. Tenant shall use the
Premises only for general office, manufacturing, laboratory and
warehouse use, and for no other purpose. Landlord acknowledges
that Tenant’s use of autoclaves, compressors, hoods and
walk-in curing ovens are permitted uses. Except for
Landlord’s Work to be performed by Landlord in accordance
with Exhibit B, Tenant will accept the Premises AS IS, in
the condition existing as of the Commencement Date, with no work
to be performed by Landlord. Tenant shall not, without the prior
written consent of Landlord, use any apparatus, machinery or
device in or about the Premises which will cause any noise,
vibration, fumes or electronic interference or which will
overload the floors, structure, systems, or equipment of the
Buildings. Tenant shall not at any time use or occupy, or suffer
or permit anyone to use or occupy the Premises, or permit
anything to be done in the Premises, in any manner which:
(a) violates the Certificate of Occupancy for the Premises
or for the Buildings; or (b) causes or is liable to cause
injury to the Premises or the Buildings or any equipment,
facilities or systems therein; or (c) constitutes a
violation of any law, statute, ordinance, rule, regulation,
order or other governmental requirement (collectively
“Laws”) or the requirements of insurance bodies; or
(d) impairs the character or appearance of the Buildings as
first-class buildings; or (e) impairs the proper and
economic maintenance, operation and repair of the Buildings
and/or their
equipment, facilities or systems; or (f) annoys or
inconveniences other tenants or occupants of the Project; or
(g) overloads the floor loads or electrical capacity of the
Buildings. Tenant shall also comply with all Laws applicable to
Tenant’s use and occupancy of the Premises. Tenant shall
not allow any objectionable liquid, odor, or noise to be emitted
from the Premises; store any gasoline or other highly
combustible materials on the Premises which would violate any
applicable fire code or regulation nor conduct any operation
that will increase Landlord’s fire insurance rates for the
Premises. Landlord shall have the right to reasonably approve
the installation of any power-driven machinery by Tenant and may
select a qualified electrician whose opinion will control
regarding electrical circuits and a qualified engineer or
architect whose opinion will control regarding floor loads.
4.2 Signage. Tenant may not place
any sign which is visible from the exterior of the Building
without first obtaining (a) Landlord’s written
approval (which approval shall not be unreasonably withheld) of
the size, color, design, wording, and location, and (b) all
necessary governmental approvals. All signs installed by Tenant
shall be paid for by Tenant and removed at Tenant’s expense
upon termination of this Lease with the sign location restored
to its state immediately prior to placement of the sign. If
requested by Tenant, Tenant shall have the right, at
Tenant’s sole cost and expense and subject to Tenant
obtaining all applicable governmental approvals, to have
building signage facing Nimbus Avenue
and/or a
sign panel on a monument sign for the Project in such location
on such monument sign as Landlord determines appropriate.
4.3 Alterations;
Improvements. Tenant shall make no
alterations, additions, or improvements to the Premises or do
anything to the Premises which is visible from the exterior of
the Premises without Landlord’s prior written consent
(which consent shall not be unreasonably withheld but which may
be conditioned upon Tenant’s obligation to remove such
alterations or not remove such alterations at the end of the
Term of the Lease) and without a valid building permit issued by
the appropriate governmental agency; provided, that Landlord may
condition such consent in Landlord’s sole discretion to the
extent any such alteration affects the structure of the Building
or the
4
electrical, plumbing, mechanical or life safety systems. Upon
termination of this Lease, any such general alterations,
additions, or improvements (including without limitation all
general electrical, lighting, plumbing, heating and
air-conditioning equipment, doors, windows, partitions, drapery,
carpeting, shelving, counters, and physically attached fixtures)
shall at once become part of the realty and belong to Landlord
unless the terms of the applicable consent provide otherwise, or
unless Landlord requests that part or all of the additions,
alterations, or improvements be removed. Tenant may remove all
special improvements unique to Tenant’s business,
including, but not limited to, special shelving, counters,
benches, hoods, autoclaves, compressors and walk in ovens, even
if bolted to the floor. In such case, Tenant shall at its sole
cost and expense promptly remove the specified additions,
alterations, or improvements and repair and restore the Premises
to its original condition upon occupancy prior to termination of
this Lease subject to normal wear and tear. Landlord shall have
the right to first approve any contractors performing work in
the Premises, which approval shall not be unreasonably withheld.
Landlord shall reimburse Tenant such amount after receiving
copies of paid invoices for such plans and documents. Landlord
shall have the right to first approve all plans for improvements
to the Premises, which approval shall not be unreasonably
withheld or delayed. All work on the Premises shall be scheduled
through Landlord and shall be performed in accordance with
Landlord’s reasonable rules and regulations. Landlord shall
have the right to oversee the contractor’s work, at no
expense to Tenant, and to stop work if it is not being done
properly.
5. Security Deposits. On the date
this Lease is executed by Tenant, Tenant shall deliver to
Landlord the sum of $16,813.93 (the “Security
Deposit”), to secure the faithful performance by Tenant of
each term, covenant, and condition of this Lease. If Tenant
shall at any time fail to make any payment or fail to keep or
perform any term, covenant, and condition on its part to be made
or performed or kept under this Lease, Landlord may, but shall
not be obligated to and without waiving or releasing Tenant from
any obligation under this Lease, use, apply or retain the whole
or any part of the Security Deposit (i) to the extent of
any sum due to Landlord; or (ii) to make any required
payment on Tenant’s behalf; or (iii) to compensate
Landlord for any loss, damage, attorneys’ fees, or expense
sustained by Landlord due to Tenant’s default. In such
event, Tenant shall, within five (5) days of written demand
by Landlord, remit to Landlord sufficient funds to restore the
Security Deposit to its original sum; Tenant’s failure to
do so shall be a material breach of this Lease. Landlord shall
not be required to keep the Security Deposit separate from its
general funds, and Tenant shall not be entitled to interest on
such deposit. Should Tenant comply with all of the terms,
covenants, and conditions of this Lease and at the end of the
term of this Lease leave the Premises in the condition required
by this Lease, then the Security Deposit, less any sums owing to
Landlord, shall be returned to Tenant (or, at Landlord’s
option, to the last assignee of Tenant’s interests
hereunder) within thirty (30) days after the termination of
this Lease and vacancy of the Premises by Tenant.
6.1 Utility Charges. Tenant shall
pay when due all charges for electricity, natural gas, water,
garbage collection, janitorial service, sewer, and all other
utilities and services of any kind furnished to the Premises
during the Term. Landlord shall install a meter (or meters), at
Tenant’s sole cost and expense, to separately meter such
charges (other than water). Landlord shall have no liability
resulting from any interruption of services caused by fire or
other casualty, strike, riot, vandalism, the making of necessary
repairs or improvements, or any other cause unless caused solely
by Landlord’s gross negligence or intentional misconduct.
Tenant shall control the temperature in the Premises to prevent
freezing of any systems.
6.2 Maintenance. Landlord shall
repair and maintain the roof, exterior walls, building structure
and foundation of the Premises in good condition, all as
Operating Expenses. Except for such obligations of Landlord,
Tenant shall keep the Premises neatly maintained and in good
order and repair; provided that Tenant shall reimburse Landlord
within thirty (30) days after written request for the cost
of any repairs performed under this Section 6.2 by Landlord
due to any act or omission of Tenant or Tenant’s agents,
employees or contractors. Tenant’s responsibility shall
include maintenance and repair of the electrical system,
plumbing, air-conditioning and heating systems, overhead and
personnel doors, and the replacement of all broken or cracked
glass with glass of the same quality after Landlord has repaired
or replaced any such equipment (to the extent required under
Section 1) at Landlord’s sole expense (and not
subject to pass through to Tenant as Operating Expenses under
Section 7). Tenant shall refrain from any discharge that
will damage the sewers serving the Premises. Tenant shall
perform its own janitorial services with respect to the
Premises. All required replacements of major parts of the HVAC
equipment installed
5
after the Commencement Date shall be Landlord’s
responsibility and shall be treated as capital expenses under
Section 7.5.
6.3 Obstruction Clearance. If the
Premises have a separate entrance, Tenant shall keep the
sidewalks abutting the Premises or the separate entrance free
and clear of snow, ice, debris, and obstructions of every kind.
7.1 Additional Rent. Commencing on
the Commencement Date and continuing on the first day of each
calendar month throughout the Term, Tenant shall pay each month
a sum representing Tenant’s proportionate share of real
property taxes (“Taxes”) and operating expenses
(“Operating Expenses”) of the Project. Such amount
shall annually be estimated by Landlord in good faith to reflect
actual or anticipated costs. Landlord shall compute its actual
costs for Taxes and Operating Expenses on an annual basis and
give Tenant notice thereof. Any overpayment by Tenant shall be
credited to Tenant, and any deficiency shall be paid by Tenant
within thirty (30) days after receipt of Landlord’s
statement.
7.2 Proportionate
Share. Tenant’s proportionate share of
Taxes and Operating Expenses shall mean that percentage which is
the same as the percentage which the rentable area of the
Premises bears to the total rentable area of all buildings in
the Project. If in Landlord’s reasonable judgment either of
these methods of allocation results in an inappropriate
allocation to Tenant, Landlord shall select some other
reasonable method of determining Tenant’s proportionate
share.
7.3 Taxes. Taxes charged to Tenant
hereunder shall include all general real property taxes assessed
against the Project or payable during the Term, installment
payments on Bancrofted special assessments, all other
governmental assessments, and any rent tax, tax on
Landlord’s interest under this Lease, or any tax in lieu of
or in addition to the foregoing, whether or not any such tax is
now in effect. Tenant shall not, however, be obligated to pay
any tax based upon Landlord’s net income.
7.4 Operating Expenses. Operating
Expenses shall include all costs, fees, and expenses incurred in
connection with the management, repair, maintenance, insurance
and operations of the Project. Notwithstanding anything to the
contrary, the following items shall be excluded from the
calculation of Operating Expenses: (a) any expenses which
under generally accepted property management practices,
consistently applied would not be considered a normal
maintenance or operating expense; (b) all costs associated
with the operation of the business of the entity which
constitutes “Landlord” (as distinguished from the
costs of Building operations) including, but not limited to,
Landlord’s or Landlord’s managing agent’s general
corporate overhead and general administrative expenses;
(c) costs incurred by Landlord in connection with the
correction of defects in design and construction of the Building
or Project; (d) costs of a capital nature other than a
capital expense under Section 7.5 of this Lease (which
capital expenses shall be amortized as described in
Section 7.5 of this Lease); (e) any costs of any
services sold or provided to tenants or other occupants for
which Landlord or managing agent is reimbursed by such tenants
or other occupants as an additional charge or rental over and
above the basic rent (and escalations thereof);
(f) overhead or profits paid to subsidiaries or affiliates
of Landlord, or to any party as a result of a non-competitive
selection process, for management or other services to the
Building, or for supplies or other materials, to the extent that
the costs of such services, supplies, or materials materially
exceed the costs that would have been paid had the services,
supplies or materials been provided by parties unaffiliated with
the Landlord on a competitive basis and are consistent with
those incurred by similar buildings in the same metropolitan
area in which the Building is located; (g) wages, salaries
and other compensation paid to any executive employee of
Landlord
and/or
Landlord’s managing agent above the grade of Building
manager; (h) any cost or expense related to removal,
cleaning, abatement or remediation of “Hazardous
Substances” in or about the Building, including without
limitation, hazardous substances in the ground water or soil;
(i) advertising and promotional costs including tenant
relation programs and events; (j) all costs incurred in
owning, operating, maintaining and repairing any underground or
above-ground parking garage
and/or any
other parking facilities associated with the Building and common
areas, including but not limited to, any expenses for parking
equipment, tickets, supplies, signs, claims insurance, cleaning,
resurfacing, restriping, business taxes, management fees and
costs, structural maintenance, utilities, insurance of any form,
real estate taxes, and the wages, salaries, employee benefits
and taxes for personnel working in connection with any such
parking facilities if the parking garage/facility revenues
exceed parking garage/facility expenses (if garage revenues do
not exceed garage expenses, then such costs may be included in
Operating
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Expenses to the extent total garage expenses exceed total garage
revenues); (k) Landlord’s gross receipts taxes,
personal and corporate income taxes, inheritance and estate
taxes, other franchise, gift and transfer taxes, and all other
real estate taxes relating to a period or payable outside the
term of the Lease; (l) any fines, costs, penalties or
interest resulting from the negligence or willful misconduct of
the Landlord or its agents, contractors, or employees;
(m) any rental payments and related costs pursuant to any
ground lease of land underlying all or any portion of the
Building and Common Areas; (n) any costs, fees, dues,
contributions or similar expenses for political, charitable,
industry association or similar organizations; (o) any
rental and any associated costs, either actual or not, for the
Landlord’s
and/or
Landlord’s managing agent’s management
and/or
leasing office; (p) acquisition costs for sculptures,
paintings, or other objects of art or the display of such items;
(q) costs incurred in connection with the original design
and construction of the Building or Project or any major changes
to same, including but not limited to, additions or deletions of
floors, renovations of the common areas (except as expressly
permitted under Section 7.5), and the repair of damage to
the Building or Project in connection with any type of casualty,
event of damage or destruction or condemnation to the extent
Landlord is reimbursed by insurance or condemnation proceeds;
(r) costs incurred in connection with upgrading the
Building to comply with disability or life insurance
requirements, or life safety codes, ordinances, statutes, or
other laws to the extent that the Building is in violation of
such requirements, codes, ordinances, statutes or laws prior to
the Commencement Date, including, without limitation, the
Americans With Disabilities Act, including penalties or damages
incurred as a result of non-compliance; (s) costs for
reserves of any kind; or (t) costs incurred in connection
with modifying, upgrading, replacing, repairing or maintaining
the Building’s telecommunication system.
7.5 Capital Expenses. Except for
costs incurred by Landlord prior to the date Landlord’s
Work is substantially complete, Landlord shall be entitled to
recover as an Operating Expense the reasonable annual
amortization of any capital improvement (together with interest
at the prime rate in existence at the time) made by Landlord,
either because such capital improvement is required by a Law,
because such capital improvements are necessary or prudent for
the health or safety of occupants of the Project or because such
capital improvement will, in Landlord’s reasonable
judgment, reduce Operating Expenses for the then current tenants
of the Project.
7.6 Audit. Tenant shall have the
right to audit, at Tenant’s sole cost and expense and so
long as Tenant is not in default of this Lease, Landlord’s
records pertaining to the computation of Operating Expenses and
Taxes under Section 7 of this Lease, so long as Tenant
complies with the following provisions: (a) Tenant shall
perform such inspection within one hundred twenty
(120) days following the receipt of Landlord’s
reconciliation statement pertaining to the operating year in
question, (b) Tenant shall provide to Landlord a copy of
the inspection report, (c) Tenant shall keep the report
confidential and shall not share the contents, results, or the
fact that Tenant is investigating the operating expenses or
adjustments with any other person, except for its advisors on a
need-to-know
basis, (d) Tenant shall pay to Landlord within ten
(10) days following its inspection any amount determined to
be owing by Tenant, and (e) Tenant shall give written
notice of its intention to audit no later than ninety
(90) days following receipt of Landlord’s
reconciliation statement pertaining to the operating year in
question. If Tenant does not give Landlord written notice of any
objection or request to audit within ninety (90) days
following receipt of Landlord’s reconciliation statement
pertaining to an operating year, then such statement shall be
binding on Tenant. Tenant’s inspection may only be
conducted by Tenant’s employees or by Tenant’s
certified public accountant paid on an hourly basis (and not a
contingent fee basis). Landlord agrees to pay Tenant any amount
determined to be owing to Tenant as determined within thirty
(30) days following Landlord’s receipt of the
inspection report or within thirty (30) days following a
report by an independent certified public accountant selected by
Landlord and approved by Tenant, which approval shall not be
unreasonably withheld, if Landlord does not agree with
Tenant’s inspection report.
8.1 Parking. Tenant shall not
allow its employees, agents, and invitees collectively to park
in excess of sixty-five (65) parking spaces in the Project
at any time. If the Premises is expanded, the number of parking
spaces allocated to Tenant shall be increased based upon a ratio
of 4 parking spaces for each additional 1,000 rentable
square feet of space.
8.2 Storage. Tenant shall not
store any materials, supplies, equipment, or other items outside
of the Premises except for trash in the approved garbage areas.
Trash and garbage receptacles shall be kept covered at all times.
7
9.1 Tenant’s
Indemnification. Tenant shall not allow any
liens to attach to the Premises as a result of its activities.
Tenant shall indemnify, defend and hold harmless Landlord from
any claim, liability, damage, loss or expense (including
reasonable attorneys’ fees) arising out of any activity on
or use of the Premises by Tenant, its agents, employees, or
invitees or resulting from Tenant’s failure to comply with
any term of this Lease.
9.2 Liability Insurance. Tenant
shall carry commercial general liability insurance on an
occurrence basis with combined single limits of not less than
$3,000,000 and insuring Tenant’s contractual obligations
under this Lease. Such insurance shall be provided by an
insurance carrier reasonably acceptable to Landlord and shall be
evidenced by a certificate delivered to Landlord stating that
the coverage will not be canceled or materially altered without
ten (10) days’ advance written notice to Landlord.
Landlord shall be named as an additional insured on such policy.
10.1 Property Damage. If fire or
other casualty causes damage to the Building or the Premises in
an amount exceeding thirty percent (30%) of the full
construction-replacement cost of the Building or Premises,
respectively, Landlord may elect to terminate this Lease as of
the date of the damage by notice in writing to Tenant within
thirty (30) days after such date. Otherwise, Landlord shall
promptly repair the damage and restore the Premises to their
former condition as soon as practicable. Rent shall be reduced
during the period and to the extent the Premises are not
reasonably usable for the use permitted by this Lease because of
such damage and required repairs. Tenant shall be responsible
for restoring its personal property, trade fixtures, and
equipment.
10.2 Insurance of
Property. Landlord shall be responsible for
insuring the Building, the cost of which shall be an Operating
Expense, and Tenant shall be responsible for insuring its
personal property, equipment, and trade fixtures located on the
Premises.
10.3 Subrogation Waiver. Landlord
and Tenant each hereby releases the other, and the other’s
partners, officers, directors, agents and employees, from any
and all liability and responsibility to the releasing party and
to anyone claiming by or through it or under it, by way or
subrogation or otherwise, for all claims, or demands whatsoever
which arise out of damage or destruction of property occasioned
by perils which can be insured by an All Risk Property Insurance
Coverage Form. Landlord and Tenant grant this release on behalf
of themselves and their respective insurance companies and each
represents and warrants to the other that it is authorized by
its respective insurance company to grant the waiver of
subrogation contained in this Section 10.3. This release
and waiver shall be binding upon the parties whether or not
insurance coverage is in force at the time of the loss or
destruction of property referred to in this Section 10.3.
11. Condemnation. If a condemning
authority takes 30 percent or more of the rentable area of
the Premises, then either party may elect to terminate this
Lease effective on the date that title passes to the condemning
authority by written notice given to the other party within
30 days after notice of the taking is given to the party.
Otherwise, Landlord shall proceed as soon as practicable to
restore the remaining Premises to a condition comparable to that
existing at the time of the taking. Rent shall be abated during
the period of restoration to the extent the Premises are not
reasonably usable by Tenant, and rent shall be reduced for the
remainder of the term in an amount equal to the reduction in
rental value of the Premises caused by the taking. All
condemnation proceeds paid for taking the Premises shall belong
to Landlord. Tenant shall have the right to make a separate
claim for relocation costs pursuant to ORS 281.045.
12.1 Assignment and
Subletting. This provision shall apply to all
transfers by operation of law or through mergers and changes in
controlling stock ownership of Tenant. Tenant shall not assign
all or any part of its interest under this Lease nor sublet all
or any part of the Premises without first obtaining
Landlord’s consent in writing. Landlord’s consent to
an assignment of this Lease or sublease of the Premises shall
not be unreasonably withheld, conditioned or delayed. Landlord
may condition its consent on reasonable conditions. Should
Landlord withhold its consent to a proposed assignment or
subletting or any other transfer of Tenant’s rights under
this Lease (each a “Transfer”) for any of the
following reasons, the withholding of consent shall be deemed
reasonable: (a) conflict or incompatibility of the proposed
use with uses appropriate in a flex/office project;
(b) financial inadequacy of the proposed transferee
8
as reasonably determined by Landlord; (c) any proposed
change in use which would diminish the professional nature of
the Building or of the other businesses located in the Project;
(d) the proposed use would adversely impact the use of the
common facilities by other tenants of the Project;
(e) Tenant is then in default of the Lease beyond any
applicable cure period; and (f) any other reasonable
criteria. No Transfer shall result in Tenant being released from
any obligation under this Lease. As a condition to
Landlord’s prior written consent, the transferee shall
agree in writing to comply with and be bound by all of the
terms, covenants, conditions, and other provisions of this Lease
and Tenant shall deliver to Landlord promptly after execution an
executed copy of all agreements of such compliance by each
transferee. No assignment shall relieve Tenant of its obligation
to pay Rent or perform the other obligations required by this
Lease and no consent to one assignment or subletting shall be a
consent to any further assignment or subletting. If Tenant
assigns this Lease or sublets the Premises for an amount in
excess of the rent called for by this Lease, or receives other
consideration for a subletting or assignment, such excess rent
or other consideration (after first deducting reasonable leasing
costs such as brokerage commissions, tenant improvement costs
and legal fees) shall be paid to Landlord promptly as it is
received by Tenant. Notwithstanding anything to the contrary in
this Section 12.1 and so long as Tenant provides Landlord
written notice of an applicable assignment or sublease within
five (5) business days following the effective date of such
applicable assignment or sublease, no prior written consent of
Landlord shall be required for any assignment or sublease with a
corporation into or with which Tenant is merged or consolidated
or with an entity to which all or substantially all of
Tenant’s assets are transferred, provided (x) such
merger, consolidation or transfer of assets is for a valid
business purpose and not principally for the purpose of
transferring the leasehold estate created hereby, and
(y) the assignee or successor entity has a net worth
(determined in accordance with generally accepted accounting
principles consistently applied) at least equal to or in excess
of the net worth of Tenant immediately prior to such merger,
consolidation or transfer and Landlord has been provided with
reasonable proof thereof prior to such transaction.
12.2 Successors and
Assigns. Subject to the above limitations on
transfer of Tenant’s interest, this Lease shall bind and
inure to the benefit of the parties, their respective
successors, and assigns.
13. Default. The occurrence of any
one or more of the following events of default shall constitute
a breach of this Lease by Tenant (an “Event of
Default”):
13.1 Failure of Tenant to make any Base Rent or Additional
Rent payment, or any other payment under this Lease when it is
due; provided, that the first two (2) times in any twelve
(12) consecutive month period that Tenant fails to pay an
installment of Base Rent or Additional Rent when due, Tenant
shall not be in default of this Lease so long as Tenant pays
such past due Base Rent or Additional Rent within ten
(10) days of the date notice is sent to Tenant that such
Base Rent or Additional Rent is past due.
13.2 Tenant makes any Transfer without Landlord’s
prior written consent as required under Section 12.
13.3 Tenant abandons the Premises during the Term, unless
Tenant given Landlord prior written notice of its intent to
vacate and Tenant continues to pay and perform all its
obligations.
13.4 Failure of Tenant to deliver the instruments described
in Section 17.1 or Section 17.3 as and when required
in such Sections, as applicable, or failure of Tenant to comply
with any applicable Law when and as required by the applicable
governmental authority.
13.5 Failure of Tenant to comply with any other term or
condition of this Lease or to fulfill any other obligation of
this Lease within 15 days after written notice from
Landlord specifying the nature of the failure with reasonable
particularity; provided that if the nature of such cure is such
that a longer cure period is necessary, Tenant shall only be in
default if Tenant shall have failed to commence such cure within
said 15 day period and thereafter to have diligently
prosecuted such cure to completion.
13.6 Dissolution, termination of existence, or business
failure of Tenant; the commencement by Tenant of a voluntary
case under the federal bankruptcy laws or under any other
federal or state law relating to insolvency or debtor’s
relief; the entry of a decree or order for relief against Tenant
in an involuntary case under the federal bankruptcy laws or
under any other applicable federal or state law relating to
insolvency or debtor’s relief; the appointment of or the
consent by Tenant to the appointment of a receiver, trustee or
custodian of Tenant or of any of Tenant’s property; an
assignment for the benefit of creditors by Tenant; Tenant’s
failure generally to pay its debts as such debts become due; the
making or suffering by Tenant of a fraudulent transfer under
applicable
9
federal or state law; concealment by Tenant of any of its
property in fraud of creditors; or the imposition of a lien
through legal proceedings or distraint upon any of the property
of Tenant which is not discharged or bonded.
14. Remedies for Default. In case
of default as described in Section 13 above, Landlord shall
have the right to the following remedies, which shall be
cumulative and in addition to any other remedies provided under
applicable law:
14.1 Termination. Terminate this
Lease without relieving Tenant from its obligation to pay
damages.
14.2 Retaking. Retake possession
of the Premises by summary proceedings or otherwise, in which
case Tenant’s liability to Landlord for damages shall
survive the termination. Landlord may, after such retaking of
possession, relet the Premises upon any reasonable terms. No
such reletting shall be construed as an acceptance of a
surrender of Tenant’s leasehold interest.
14.3 Recovery of Costs. Recover
all damages caused by Tenant’s default which shall include,
without limitation, loss of rentals, costs of reletting and all
other costs incurred or benefits lost as a result of such
default. 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 equal to the difference between the rent under this
Lease and the reasonable rental value of the Premises for the
remainder of the term, discounted to the time of judgment at the
rate of six (6%) percent per annum.
14.4 Recovery of Costs. Make any
payment or perform any obligation required of Tenant so as to
cure Tenant’s default, in which case Landlord shall be
entitled to recover all amounts so expended from Tenant, plus
interest at the rate of ten percent (10%) per annum from the
date of the expenditure.
15.1 Delivery of Premises. On
expiration or early termination of this Lease, Tenant shall
deliver all keys to Landlord, have final utility readings made
on the date of move out, and surrender the Premises clean and
free of debris inside and out, with all mechanical, electrical,
and plumbing systems in good operating condition, all signing
removed and defacement corrected, and all repairs called for
under this Lease completed. The Premises shall be delivered in
the same condition as at the commencement of the term after
substantial completion of Landlord’s Work, subject only to
depreciation and 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 said property shall be an abandonment of same, and
Landlord may dispose of it in any manner without liability.
15.2 Month-to-Month Tenancy. If
Tenant fails to vacate the Premises when required, Landlord may
elect either to treat Tenant as a tenant from month to month,
subject to all provisions of this Lease except the provision for
term and at rent equal to 150 percent of the rent last
payable under this Lease, or to eject Tenant from the Premises
and recover damages caused by wrongful holdover.
16. Landlord’s Liability.
16.1 Nondisturbance. Landlord
warrants that so long as Tenant complies with all terms of this
Lease it shall be entitled to peaceable and undisturbed
possession of the Premises free from any eviction or disturbance
by Landlord or persons claiming through Landlord.
16.2 Claims Against Landlord. In
any action or claim against Landlord, Tenant shall look solely
to the interest of Landlord in the Project, and no personal
judgment may be obtained against any of the individuals or
entities comprising Landlord arising out of this Lease. In no
event shall Landlord be liable for consequential, punitive or
special damages.
16.3 Transfer of Interest in
Building. If Landlord transfers its interest
in the Building, Landlord shall have no liability under this
Lease arising out of facts occurring after such transfer, and
Tenant shall look only to the transferee for any and all such
claims.
10
17.1 Subordination. This Lease is
and shall be prior to any mortgage or deed of trust
(“Encumbrance”) recorded after the date of this Lease
and affecting the Building and the land upon which the Building
is located. However, if any lender holding an Encumbrance
secured by the Building and the land underlying the Building
requires that this Lease be subordinate to the Encumbrance, then
Tenant agrees that this Lease shall be subordinate to the
Encumbrance, then Tenant agrees that this Lease shall be
subordinate to the Encumbrance if the holder thereof agrees in
writing with Tenant that so long as Tenant performs its
obligations under this Lease no foreclosure, deed given in lieu
of the foreclosure, or sale pursuant to the terms of the
Encumbrance, or other steps or procedures taken under the
Encumbrance shall affect Tenant’s rights under this Lease.
If the foregoing condition is met, Tenant shall execute the
written agreement and any other documents required by the holder
of the Encumbrance to accomplish the purposes of this Section
within ten days after Landlord’s request therefor.
17.2 Attornment. If the Building
is sold as a result of foreclosure of any Encumbrance thereon or
otherwise transferred by Landlord or any successor, Tenant shall
attorn to the purchaser or transferee, and the transferor shall
have no further liability hereunder, except to the extent of
claims arising out of facts occurring prior to the transfer,
which claims may be asserted against transferor but not against
transferee.
17.3 Estoppel Certificates. Either
party shall within ten (10) days after notice from the
other execute and deliver to the other party a certificate
stating whether or not this Lease has been modified and is in
full force and effect and specifying any modifications or
alleged breaches by the other party. The certificate shall also
state the amount of monthly base rent, the dates to which rent
has been paid in advance, and the amount of any security deposit
or prepaid rent. 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.
18.1 Environmental
Law. “Environmental Law” shall mean
any federal, state or local Law to the protection of health,
safety or the environment. The term “Hazardous
Substance” shall mean any hazardous, toxic, infectious or
radioactive substance, waste and material as defined or listed
by any Environmental Law and shall include, without limitation,
petroleum oil and its fractions.
18.2 Hazardous Substances. Tenant
shall not cause or permit any Hazardous Substance to be spilled,
leaked, disposed of or otherwise released on or under the
Premises. Tenant may use and sell on the Premises only those
Hazardous Substances typically used and sold in the prudent and
safe operation of the business permitted by Section 4.1 of
this Lease. Tenant may store such Hazardous Substances on the
Premises, but only in quantities necessary to satisfy
Tenant’s reasonably anticipated needs. Tenant shall comply
with all Environmental Laws and exercise the highest degree of
care in the use, handling and storage of Hazardous Substances
and shall take all practicable measures to minimize the quantity
and toxicity of Hazardous Substances used, handled or stored on
the Premises.
18.3 Notices to Landlord. Tenant
shall immediately notify Landlord upon becoming aware of the
following: (a) any spill, leak, disposal or other release
of a Hazardous Substance on, under or adjacent to the Premises;
(b) any notice or communication from a governmental agency
or any other person relating to any Hazardous Substance on,
under or adjacent to the Premises; or (c) any violation of
any Environmental Law with respect to the Premises or
Tenant’s activities on or in connection with the Premises.
18.4 Spills and Releases. In the
event of a spill, leak, disposal or other release of a Hazardous
Substance on or under the Premises or other part of the Project
caused by Tenant or any of its contractors, agents or employees
or invitees, or the suspicion or threat of the same, Tenant
shall (i) immediately undertake all emergency response
necessary to contain, cleanup and remove the released Hazardous
Substance, (ii) promptly undertake all investigatory,
remedial, removal and other response action necessary or
appropriate to ensure that any Hazardous Substances
contamination is eliminated to Landlord’s reasonable
satisfaction, and (iii) provide Landlord copies of all
correspondence with any governmental agency regarding the
release (or threatened or suspected release) or the response
action, a detailed report documenting all such response action,
and a certification that any contamination has been eliminated.
All such response action shall be performed, all such reports
shall be
11
prepared and all such certifications shall be made by an
environmental consultant reasonably acceptable to Landlord.
18.5 Condition Upon
Termination. Upon expiration of this Lease or
sooner termination of this Lease for any reason, Tenant shall
remove all Hazardous Substances and facilities used for the
storage or handling of Hazardous Substances from the Premises
and restore the affected areas by repairing any damage caused by
the installation or removal of the facilities. Following such
removal, Tenant shall certify in writing to Landlord that all
such removal is complete.
18.6 Indemnity.
(a) Tenant shall indemnify, defend and hold harmless
Landlord, its employees and agents, any persons holding a
security interest in the Premises, and the respective successors
and assigns of each of them from and against any and all claims,
demands, liabilities, damages, fines, losses, costs (including
without limitation the cost of any investigation, remedial,
removal or other response action required by Environmental Law)
and expenses (including without limitation attorneys’ fees
and expert fees in connection with any trial, appeal, petition
for review or administrative proceeding) arising out of or in
any way relating to the use, treatment, storage, generation,
transport, release, leak, spill, disposal or other handling of
Hazardous Substances on the Premises or other part of the
Project by Tenant or any of its contractors, agents or employees
or invitees. Tenant’s obligations under this Section shall
survive the expiration or termination of this Lease for any
reason. Landlord’s rights under this Section are in
addition to and not in lieu of any other rights or remedies to
which Landlord may be entitled under this agreement or otherwise.
(b) Landlord shall indemnify, defend, and hold harmless
Tenant, its employees, agents, successors, and assigns, from and
against any and all claims, demands, liabilities, damages,
fines, losses, costs (including without limitation the cost of
any investigation, remedial, removal or other response action
required by Environmental Law), and any expenses (including
without limitation attorneys’ fees and expert fees in
connection with any trial, appeal, petition for review or
administrative proceeding) arising out of or in any way relating
to the use, treatment, storage, generation, transport, release,
leak, spill, disposal or other handling of Hazardous Substances
on the Premises by Landlord or any of its contractors, agents,
employees, or tenants other than Tenant. Tenant’s rights
under this Section are in addition to and not in lieu of any
other rights or remedies to which Tenant may be entitled under
this Agreement or otherwise.
19. General Provisions.
19.1 Nonwaiver. Waiver by either
party of strict performance of any provision of this Lease shall
not be a waiver of nor prejudice the party’s right
otherwise to require performance of the same provision or any
other provision.
19.2 Attorneys’ Fees. In the
event a suit, action, arbitration, or other proceeding of any
nature whatsoever, including without limitation any proceeding
under the U.S. Bankruptcy Code, is instituted, or the
services of an attorney are retained, to interpret or enforce
any provision of this Lease or with respect to any dispute
relating to this Lease, the prevailing or non-defaulting party
shall be entitled to recover from the losing or defaulting party
its attorneys’, paralegals’, accountants’, and
other experts’ fees and all other fees, costs, and expenses
actually incurred and reasonably necessary in connection
therewith. In the event of suit, action, arbitration, or other
proceeding, the amount thereof shall be determined by the judge
or arbitrator, shall include fees and expenses incurred on any
appeal or review, and shall be in addition to all other amounts
provided by law.
19.3 Time. Time is of the essence
of this Lease.
19.4 Severability. If any
provision of this Lease is held to be invalid, unenforceable or
illegal the remaining provisions shall not be affected and shall
be enforced to the fullest extent permitted by law.
19.5 Interest and Late
Charges. Subject to Section 13.1 to the
extent applicable, rent not paid within ten (10) days of
when due shall bear interest from the date due until paid at the
rate of ten percent (10%) per annum. Landlord may at its option
impose a late charge of $.05 for each $1.00 of rent for rent
payments made more than ten (10) days late in addition to
interest and other remedies available for default.
19.6 Tenant Representations. If
Tenant is a corporation or other entity, each person executing
this Lease on behalf of Tenant hereby covenants and warrants
that Tenant is duly formed and validly existing under the laws
of its
12
state of formation; Tenant has full right and authority to enter
into this Lease and to perform all Tenant’s obligations
hereunder; and each person (and both of the persons if more than
one signs) signing this Lease on behalf of Tenant is duly and
validly authorized to do so.
19.7 Right of Entry. Landlord
shall have the right to enter upon the Premises at any time,
following at least 24 hours’ advance notice (written
or oral) except in case of emergency (in which event no notice
is required), to determine Tenant’s compliance with this
Lease, to make necessary repairs to the Building or the
Premises, or to show the Premises to any prospective tenant or
purchasers. During the last two months of the term, Landlord may
place and maintain upon the Premises notices for leasing or sale
of the Premises. Landlord shall use reasonable efforts to
minimize any interference with Tenant’s business operations
caused by its entry, except in case of emergency.
19.8 Proration. If this Lease
commences or terminates at a time other than the beginning or
end of one of the specified rental periods, then the rent
(including Tenant’s share of real property taxes, if any)
shall be prorated as of such date, and in the event of
termination for reasons other than default all prepaid rent
shall be refunded to Tenant or paid on its account.
19.9 Notices. Notices between the
parties relating to this Lease shall be in writing, effective
when delivered, or if mailed, effective on the second day
following mailing, postage prepaid, to the address shown below
for the party stated in this Lease or to such other address as
either party may specify by notice to the other. Rent shall be
payable to Landlord at the same address and in the same manner.
If to Landlord:
|
Nimbus Oaks Industrial Park | |
c/o Xxxxxx Xxxx Brokerage Company | ||
000 XX Xxxxxxxx Xxxxxx, Xxxxx 0000 | ||
Xxxxxxxx, XX 00000 | ||
Phone No.: (000) 000-0000 | ||
Fax No.: (000) 000-0000 | ||
If to Tenant:
|
AcryMed Incorporated | |
0000 XX Xxxxxx Xxx. | ||
Xxxxxxxxx, XX 00000 | ||
Phone No.: (000) 000-0000 | ||
Fax No.: (000) 000-0000 |
19.10 Brokerage
Commissions. Tenant hereby warrants and
represents to Landlord that there are no real estate commissions
due any broker, agent or other party in connection with the
negotiation or execution of this Lease acting for or on behalf
of Tenant other than CRESA Partners and Tenant hereby agrees to
indemnify, protect, defend and hold Landlord harmless from and
against any and all costs, expenses, liabilities, causes of
action, claims or suits in connection with compensation,
commissions, fees or other sums claimed to be due and owing to
anyone claiming through Tenant other than CRESA Partners.
Landlord and Tenant acknowledge Xxxxxx Xxxx Brokerage is the
listing broker and that CRESA Partners is the agent for the
Tenant and for this Lease and are entitled to a commission paid
by Landlord in accordance with a separate management agreement.
19.11 Entire Agreement. All
understandings and agreements between the parties are merged in
this Lease and neither party is relying upon any statement or
representation not embodied in this Lease. No agreement shall be
effective to change or modify this Lease, unless such agreement
is in writing, refers expressly to this Lease and is signed by
the party against whom enforcement is sought.
19.12 Survival. All indemnity
obligations shall survive the expiration or sooner termination
of this Lease.
13
LANDLORD: | Schnitzer Co-Tenants |
SCHNITZER INVESTMENT CORP.,
an Oregon corporation
By: |
/s/ Xxxxxxx
X. Xxxxxx
|
Xxxxxxx X. Xxxxxx, President
Date 11/22/05
SCHNITZER TRUST PARTNERS,
an Oregon general partnership
By: |
/s/ Xxxxxxx
X. Xxxxxx
|
Xxxxxxx X. Xxxxxx, Managing Partner
Date 11/22/05
Xxxx Co-Tenants
XXXX PROPERTIES LIMITED PARTNERSHIP,
an Oregon limited partnership
By: |
/s/ Xxxx
Management L.L.C.
|
Xxxx Management L.L.C.,
General Partner
By: |
/s/ Xxxxxx
Xxxx
|
Xxxxxx Xxxx, Jr., Co-Member
Date 11/21/05
XXXXXX-NIMBUS LLC,
an Oregon limited liability company
By: |
/s/ Xxxxxxxx
X. Xxxxxx
|
XXXXXXXX X. XXXXXX, Sole Member
14
XXXX Z’S LLC,
an Oregon limited liability company
By: |
/s/ Xxxxx
X. Xxxx
|
XXXXX X. XXXX, Sole Member
J. XXXXX XXXXXXX LLC,
an Oregon limited liability company
/s/ J.
Xxxxx Xxxxxxx
J. XXXXX XXXXXXX, Sole Member
MJMARK LLC,
an Oregon limited liability company
/s/ X.
Xxxxx Xxxx
X. XXXXX XXXX, Sole Member
DJP. NIMBUS, LLC,
an Oregon limited liability company
/s/ Xxxxxx
X. Xxxxxxxxx
XXXXXX X. XXXXXXXXX, Sole Member
XXXXXX-NIMBUS LLC,
an Oregon limited liability company
/s/ Xxxxxxx
X. Xxxxxx
XXXXXXX X. XXXXXX, Sole Member
15
XXXXXXX-NIMBUS, LLC,
an Oregon limited liability company
/s/ F.
Xxxxxxx Xxxxxxx
F. XXXXXXX XXXXXXX, Sole Member
TENANT:
ACRYMED INCORPORATED,
an Oregon corporation
By:
/s/ Xxxx
X. XxXxxxx
Its: President, CEO
Date 11-17-05
Exhibit List:
Exhibit A — Outline of Premises
Exhibit B — Work Letter
16
April 5, 2006
Xxxx XxXxxxx
President & CEO
AcryMed Incorporated
0000 XX Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxx 00000
Dear Xx. XxXxxxx:
Reference is made to that certain Lease dated November 17,
2005 by and between between SCHNITZER INVESTMENT CORP., an
Oregon corporation, SCHNITZER TRUST PARTNERS, an Oregon
general partnership, XXXX PROPERTIES LIMITED PARTNERSHIP, an
Oregon limited partnership,
XXXXXX-NIMBUS
LLC, an Oregon limited liability company, XXXX Z’S LLC, an
Oregon limited liability company, J. XXXXX XXXXXXX LLC, an
Oregon limited liability company, MJMark LLC, an Oregon limited
liability company, DJP NIMBUS LLC, an Oregon limited liability
company, XXXXXX-NIMBUS LLC, an Oregon limited liability company,
XXXXXXX-NIMBUS LLC, an Oregon limited liability company as
tenants in common (collectively, “LANDLORD”) and
ACRYMED INCORPORATED, an Oregon corporation.
This letter shall serve as notification of the commencement date
to said Lease and shall modify only the following terms and
conditions.
TERM: | The Commencement Date is hereby February 17, 2006 and the Lease shall continue through and including July 31, 2012. |
All other terms and conditions of said Lease shall remain the
same. Please sign all copies, retain one for your record and
return remaining.
Sincerely,
XXXXXX XXXX BROKERAGE COMPANY
Xxx Xxxxxx
Vice President
Vice President
Accepted and approved this 7 day of April 2006.
TENANT:
ACRYMED INCORPORATED, an Oregon corporation
By:
/s/ Xxxx
X. XxXxxxx
Its: President, CEO
000 xxxxxxxxx
xxxxxxxx, xxxxx 0000 • xxxxxxxx, xxxxxx
00000 • telephone:
(000) 000-0000
fax:
(000) 000-0000
xxx.xxxxxxxxxx.xxx
CORE Worldwide Commercial Real
Estate Services
•
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• Hartford • Baltimore • Washington D.C. • Orlando • Atlanta • Toronto • London
• Hartford • Baltimore • Washington D.C. • Orlando • Atlanta • Toronto • London
17
COMMENCEMENT
DATE MEMORANDUM
attached to and made a part of Lease bearing the
Lease Reference Date of November 17, 2005 between
Landlord’s predecessor SCHNITZER INVESTMENT CORP., an Oregon corporation, SCHNITZER TRUST PARTNERS, an Oregon general partnership, XXXX PROPERTIES LIMITED PARTNERSHIP, an Oregon limited partnership, XXXXXX-NIMBUS LLC, an Oregon limited liability company, XXXX Z’S LLC, an Oregon limited liability company, J. XXXXX XXXXXXX LLC, an Oregon limited liability company, MJMARK LLC, an Oregon limited liability company, DJP NIMBUS, LLC, an Oregon limited liability company, XXXXXX-NIMBUS, LLC, an Oregon limited liability company, XXXXXXX-NIMBUS, LLC, an Oregon limited liability company as tenants in common (collectively, “Landlord”) and ACRYMED, INCORPORATED, an Oregon corporation, as Tenant COMMENCEMENT DATE MEMORANDUM
attached to and made a part of Lease bearing the
Lease Reference Date of November 17, 2005 between
Landlord’s predecessor SCHNITZER INVESTMENT CORP., an Oregon corporation, SCHNITZER TRUST PARTNERS, an Oregon general partnership, XXXX PROPERTIES LIMITED PARTNERSHIP, an Oregon limited partnership, XXXXXX-NIMBUS LLC, an Oregon limited liability company, XXXX Z’S LLC, an Oregon limited liability company, J. XXXXX XXXXXXX LLC, an Oregon limited liability company, MJMARK LLC, an Oregon limited liability company, DJP NIMBUS, LLC, an Oregon limited liability company, XXXXXX-NIMBUS, LLC, an Oregon limited liability company, XXXXXXX-NIMBUS, LLC, an Oregon limited liability company as tenants in common (collectively, “Landlord”) and ACRYMED, INCORPORATED, an Oregon corporation, as Tenant COMMENCEMENT DATE MEMORANDUM
THIS MEMORANDUM, made as of April 16, 2007 by and between
IPERS NIMBUS OAKS — OREGON, INC.,
(“Landlord”) and ACRYMED, INCORPORATED,
(“Tenant”).
A. Landlord and Tenant are parties to that certain Lease,
dated for reference November 15, 2005, Commencement Letter
dated April 5, 2006, as amended by the First Amendment
dated February 8, 2007, (the “Lease”) for certain
premises (the “Premises”) consisting of approximately
20,334 square feet at the building commonly known as
Building E at Nimbus Oaks Business Center.
B. Tenant is in possession of the Premises and the Term of
the Lease has commenced.
C. Landlord and Tenant desire to enter into this Memorandum
confirming the Commencement Date, the Termination Date and other
matters under the Lease.
1. The actual Commencement Date is April 16, 2007.
2. The actual Termination Date is July 31, 2012.
3. The schedule of the Annual Rent and the Monthly
Installment of Rent set forth on the Reference Pages is deleted
in its entirety, and the following is substituted therefor:
Rentable |
Increased | Revised | |||||||||||||||||||||||
Period |
Square |
Monthly |
Monthly |
Total |
Annual | ||||||||||||||||||||
From
|
Through | Footage | Base Rent | Base Rent | Base Rent | Base Rent | |||||||||||||||||||
4/16/2007
|
7/15/2007 | 20,334 | $ | 14,938.96 | $ | — | $ | 14,938.96 | $ | 179,267.52 | |||||||||||||||
7/16/2007
|
7/31/2007 | 20,334 | $ | 14,938.96 | $ | 4,506.00 | $ | 19,444.96 | $ | 233,339.52 | |||||||||||||||
8/1/2007
|
4/30/2008 | 20,334 | $ | 15,426.10 | $ | 4,506.00 | $ | 19,932.10 | $ | 239,185.20 | |||||||||||||||
5/1/2008
|
7/31/2008 | 20,334 | $ | 15,426.10 | $ | 4,641.00 | $ | 20,067.10 | $ | 240,805.20 | |||||||||||||||
8/1/2008
|
4/30/2009 | 20,334 | $ | 15,913.24 | $ | 4,641.00 | $ | 20,554.24 | $ | 246,650.88 | |||||||||||||||
5/1/2009
|
7/31/2009 | 20,334 | $ | 15,913.24 | $ | 4,780.00 | $ | 20,693.24 | $ | 248,318.88 | |||||||||||||||
8/1/2009
|
4/30/2010 | 20,334 | $ | 16,390.64 | $ | 4,780.00 | $ | 21,170.64 | $ | 254,047.68 | |||||||||||||||
5/1/2010
|
7/31/2010 | 20,334 | $ | 16,390.64 | $ | 4,924.00 | $ | 21,314.64 | $ | 255,775.68 | |||||||||||||||
8/1/2010
|
4/30/2011 | 20,334 | $ | 16,887.52 | $ | 4,924.00 | $ | 21,811.52 | $ | 261,738.24 | |||||||||||||||
5/1/2011
|
7/31/2011 | 20,334 | $ | 16,887.52 | $ | 5,072.00 | $ | 21,959.52 | $ | 263,514.24 | |||||||||||||||
8/1/2011
|
4/30/2012 | 20,334 | $ | 17,374.66 | $ | 5,072.00 | $ | 22,446.66 | $ | 269,359.92 | |||||||||||||||
5/1/2012
|
7/31/2012 | 20,334 | $ | 17,374.66 | $ | 5,224.00 | $ | 22,598.66 | $ | 271,183.92 | |||||||||||||||
Initials | Initials | ||||||||||||||||||||||||
18
4. Capitalized terms not defined herein shall have the same
meaning as set forth in the Lease.
LANDLORD: | TENANT: | |||
IPERS NIMBUS OAKS — OREGON, INC. a Delaware
corporation By: RREEF Management Company, a Delaware corporation |
ACRYMED INCORPORATED, an Oregon corporation | |||
By:
/s/ Xxxxx
Xxxxxxxx |
By: /s/ Xxxx
X. XxXxxxx |
|||
Name: Xxxxx Xxxxxxxx | Name: Xxxx X. XxXxxxx | |||
Title: Regional Director | Title: President, CEO | |||
Dated: 5.10.07 | Dated: 5-8-07 |
Initials | Initials | ||||
19