1
EXHIBIT 10.6
Standard Form of OFFICE BUILDING LEASE Developed by PORTLAND METROPOLITAN
ASSOCIATION OF BUILDING OWNERS AND MANAGERS
OFFICE LEASE
This lease, made and entered into at Portland, Oregon, this 22ND day of MAY 1997
by and between
LANDLORD: PIONEER SQUARE ASSOCIATES, L.L.C.,
A DELAWARE LIMITED LIABILITY COMPANY
and
TENANT: e.g. SOFTWARE, INC.
Landlord hereby leases to Tenant the following: Suite 1300
AS MORE FULLY DESCRIBED ON Exhibit "B"
(the Premises)
in THE AMERICAN BANK BUILDING (the Building)
000 XX XXXXXXXX XXXXXX
xx XXXXXXXX Xxxxxx, containing approximately 10,690 USEABLE
square feet as shown on the attached floor plan, calculated using a load factor
of 0 percent.
Tenant's Proportion Share for purposes of Section 19 shall be 7.42%.
This lease is for a term commencing OCTOBER 1, 1997 and continuing through
SEPT 30, 2003 at a
Monthly Base Rental as follows:
YEAR 1: $14.50 PER SQ. FT. YEAR 5: $16.50 PER SQ. FT.
YEAR 2: $15.00 PER SQ. FT. YEAR 6: $17.00 PER SQ. FT.
YEAR 3: $15.50 PER SQ. FT.
YEAR 4: $16.00 PER SQ. FT.
Rent is payable in advance on the FIRST day of each month commencing OCTOBER 1,
1997.
Landlord and Tenant covenant and agree as follows:
1.1 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
90 days following commencement of the term, then Tenant may elect to
cancel this lease by notice to Landlord within 10 days following
expiration of the 90-day period. Landlord shall have no liability to
Tenant for delay in delivering possession, nor shall such delay extend
the term of this lease in any manner unless the parties execute a
written extension agreement.
2.1 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
-1-
2
rent means amounts determined under Section 19 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
$.05 for each $1 of rent for rent payments made more than 10 days late
in lieu of interest for the first month of delinquency, without waiving
any other remedies available for default. Failure to impose a late
charge shall not be a waiver of Landlord's rights hereunder.
3.1 Lease Consideration.
Upon execution of the lease Tenant has paid the Base Rent for the first
full month of the lease term for which rent is payable and in addition
has paid the sum of $ N/A as lease consideration. Landlord may apply the
lease consideration to pay the cost of performing any obligation which
Tenant fails to perform within the time required by this lease, but such
application by Landlord shall not be the exclusive remedy for Tenant's
default. If the lease consideration is applied by Landlord, Tenant shall
on demand pay the sum necessary to replenish the lease consideration to
its original amount. To the extent not applied by Landlord to cure
defaults by Tenant, the lease consideration shall be applied against the
rent payable for the last month of the term. The lease consideration
shall not be refundable.
4.1 Use.
Tenant shall use the Premises as business for GENERAL OFFICE USE and for
no other purpose without Landlord's written consent. In connection with
its use, Tenant shall at its expense promptly comply and cause the
Premises to 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.
4.2 Equipment.
Tenant shall install in the Premises only such office equipment as is
customary for general office use 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 of and manner of installing any wiring or electrical, heat
generating or communication equipment or exceptionally heavy articles.
All telecommunications equipment, conduit, cables and wiring, additional
dedicated circuits 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. Landlord shall have
no obligation to permit the installation of equipment by any
telecommunications provider whose equipment is not then servicing the
Building.
4.3 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.
5.1 Utilities and Services.
Landlord will furnish water and electricity to the Building at all times
and will furnish heat and air conditioning (if the Building is air
conditioned) during the normal Building hours as established by Owner.
Janitorial service will be provided in accordance with the regular
-2-
3
schedule of the Building, which schedule and service may change 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, or relieve Tenant from
performance of Tenant's obligations under this lease. Landlord shall
take all reasonable steps to correct any interruptions in service.
Electrical service furnished will be 110 volts unless different service
already exists in the Premises. Tenant shall provide its own surge
protection for power furnished to the Premises.
5.2 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
determination.
5.3 Security.
Landlord may but shall have no obligation to provide security service or
to adopt security measures regarding the Premises, and Tenant shall
cooperate with all reasonable security measures adopted by Landlord.
Tenant may install a security system within the leased Premises with
Landlord's written consent which will not be unreasonably withheld.
Landlord will be provided with an access code to any security system and
shall not have any liability for accidentally setting off Tenant's
security system. Landlord may modify the type or amount of security
measures or services provided to the Building or the Premises at any
time.
6.1 Maintenance and Repair.
Landlord shall have no liability for failure to perform required
maintenance and repair unless written notice of such maintenance or
repair is given by Tenant and Landlord fails to commence efforts to
remedy the problem in a reasonable time and manner. 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 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. Repair of damage caused by negligent or
intentional acts or breach of this lease by Tenant, its employees or
invitees shall be at Tenant's expense.
6.2 Alterations.
Tenant shall not make 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 which may be withheld
in Landlord's sole discretion. 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 removable machinery
and unattached movable trade fixtures. Landlord may at its option
require that Tenant remove any improvements, alterations, wiring, cables
or conduit installed by or for 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, and to post notices of nonresponsibility in connection with
work being performed by Tenant in the Premises. Work by Tenant shall
comply with all laws then applicable to the Premises.
-3-
4
7.1 Indemnity.
Tenant shall not allow any liens 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 nor 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).
7.2 Insurance.
Tenant shall carry liability insurance with limits of not less than one
Million Dollars ($1,000,000) 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, cover the liability insured under paragraph 7.1 of this lease
and be in form and with companies reasonably acceptable to Owner. Prior
to occupancy, Tenant shall furnish a certificate evidencing such
insurance which shall state that the coverage shall not be cancelled or
materially changed without 10 days advance notice to Landlord and
Landlord's managing agent, if any. A renewal certificate shall be
furnished at least 10 days prior to expiration of any policy.
8.1 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 percent 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 the Tenant within 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 useable by Tenant.
8.2 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 be covered by a special all risk property insurance policy, 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. This waiver is binding only if it does not invalidate the
insurance coverage of either party hereto.
9.1 Eminent Domain.
If a condemning authority takes title by eminent domain or by agreement
in lieu thereof to the entire Building or a portion 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 proceeds shall belong to
Landlord, and Tenant shall have no claim against Landlord or the
condemnation award because of the taking.
-4-
5
10.1 Assignment and Subletting.
This lease shall bind and inure to the benefit of the parties, their
respective heirs, successors, and assigns, provided that Tenant shall
not assign its interest under this lease or sublet all or any portion of
the Premises without first obtaining Landlord's consent in writing. 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 subletting provided the proposed Tenant is compatible with Landlord's
normal standards for the Building. If Tenant proposes a subletting or
assignment to which Landlord is required to consent under this
paragraph, Landlord shall have the option of terminating this 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 split 50/50 between Tenant & Landlord
promptly following its receipt by Tenant. Tenant shall pay any costs
incurred by Landlord in connection with a request for assignment or
subletting, including reasonable attorneys fees. Landlord's consent
shall not be unreasonably withheld, conditioned, or delayed.
11.1 Default.
Any of the following shall constitute a default by Tenant under this
lease: (a) Tenant's failure to pay rent or any other charge under this
lease within 10 days after it is due, or failure to comply with any
other term or condition within 20 days following written notice from
Landlord specifying the noncompliance. If such noncompliance cannot be
cured within the 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. Time is of the essence of this lease. (b) Tenant's
insolvency, business failure or assignment for the benefit of its
creditors. Tenant's commencement of proceedings under any provision of
any bankruptcy or insolvency law or failure to obtain dismissal of any
petition filed against it under such laws within the time required to
answer; or the appointment of a receiver for all or any portion of
Tenant's properties or financial records. (c) Assignment or subletting
by Tenant in violation of paragraph 10.1. (d) Vacation or abandonment of
the Premises without the written consent of Landlord or failure to
occupy the Premises within 20 days after notice from Landlord tendering
possession.
11.2 Remedies for Default.
In case of default as described in paragraph 11.1 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 at its option terminate the lease by notice to Tenant. With
or without termination, Landlord may retake possession of the Premises
and may use or relet the Premises without accepting a surrender or
waiving the right to damages. 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. 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 rentals lost because of the default, lease
commissions paid for this lease, and the unamortized cost of any tenant
improvements installed by Landlord to meet Tenant's special
requirements. Landlord may xxx periodically to recover damages as they
occur
-5-
6
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 and the reasonable
rental value of the Premises for the remainder of the term, discounted
to the time of judgement at the prevailing interest rate on judgements.
(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.
12.1 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 repair all damage resulting from such removal. Failure to
remove shall be an abandonment of the property, and Landlord may dispose
of it in any manner 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 charged when the
lease term expired, and any option or other rights regarding extension
of the term or expansion of the Premises shall no longer apply; or (ii)
to eject Tenant from the Premises and recover damages caused by wrongful
holdover.
13.1 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 moving, use of common
areas and 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.
14.1 Access.
During times 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 may regulate access to any Building
elevators outside of normal Building hours. 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.
14.2 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 will not unreasonably withhold its consent
under this paragraph.
15.1 Notices.
-6-
7
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 for the party stated
in this lease or to such other address as either party may specify by
notice to the other. Notice to Tenant may always be delivered to the
Premises. Rent shall be payable to Landlord at the same address and in
the same manner, but shall be considered paid only when received.
16.1 Subordination and Attornment.
This lease shall be subject to and subordinate to any mortgages, deeds
of trust, 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 execute
such documents as may reasonably be requested by Landlord or the holder
of the encumbrance to evidence this subordination. If any encumbrance is
foreclosed, then if the purchaser at foreclosure sale gives to Tenant a
written agreement to recognize Tenant's lease, Tenant shall attorn to
such purchaser and this Lease shall continue.
16.2 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.
16.3 Estoppels.
Either party will within 10 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, or any ground lessor, Tenant will agree to give such holder
or lessor notice of and an opportunity to cure any default by Landlord
under this lease.
17.1 Attorneys' Fees.
In any litigation arising out of this lease, the prevailing party shall
be entitled to recover attorneys' fees at trial and on any appeal. If
Landlord incurs attorneys' fees because of a default by Tenant, Tenant
shall pay all such fees whether or not litigation is filed.
18.1 Quiet Enjoyment.
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. 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.
19.1 Additional Rent-Tax Adjustment.
Whenever for any July 1 - June 30 tax year the real property taxes
levied against the Building and its underlying land exceed those levied
for the 1997-1998 tax year, then the monthly rental for the next
succeeding calendar year shall be increased by one-twelfth of such tax
-7-
8
increase times Tenant's Proportionate Share. "Real property taxes" as
used herein means all taxes and assessments of any public authority
against the Building and the land on which it is located, the cost of
contesting any tax and any form of fee or charge imposed on Landlord as
a direct consequence of owning or leasing the Premises, including but
not limited to rent taxes, gross receipt taxes, leasing taxes, or any
fee or charge wholly or partially in lieu of or in substitution for ad
valorem real property taxes or assessments, whether now existing or
hereafter enacted. If any portion of the Building is occupied by a
tax-exempt tenant so that the Building has a partial tax exemption under
ORS 307.112 or a similar statute, then real property taxes shall mean
taxes computed as if such partial exemption did not exist. If a separate
assessment or identifiable tax increase arises because of improvements
to the Premises, then Tenant shall pay 100 percent of such increase.
19.3 Operating Expense Adjustment.
Tenant shall pay as additional rent Tenant's Proportionate Share of the
amount by which operating expenses for the Building increase over those
experienced by Landlord during the calendar year 1997 (base year).
Effective January 1 of each year Landlord shall estimate the amount by
which operating expenses are expected to increase, if any, over those
incurred in the base year. Monthly rental for that year shall be
increased by one-twelfth of Tenant's share of the estimated increase.
Following the end of each calendar year, Landlord shall compute the
actual increase in operating expenses and xxxx Tenant for any deficiency
or credit Tenant with any excess collected. As used herein "operating
expenses" shall mean all costs of operating and maintaining the Building
as determined by standard real estate accounting practice, including,
but not limited to: all water and sewer charges; the cost of natural gas
and electricity provided to the Building; janitorial and cleaning
supplies and services; administration costs and management fees;
superintendent fees; security services, if any; insurance premiums;
licenses, permits for the operation and maintenance of the Building and
all of its component elements and mechanical systems; the annual
amortized capital improvement cost (amortized over such a period as
Landlord may select but not shorter than the period allowed under the
Internal Revenue Code and at a current market interest rate) for any
capital improvements to the Building required by any governmental
authority or those which have a reasonable probability of improving the
operating efficiency of the Building.
19.4 Disputes.
If Tenant disputes any computation of additional rent or rent adjustment
under paragraphs 19.1 through 19.3 of this lease, it shall give notice
to Landlord not later than one year after the notice from Landlord
describing the computation in question, but in any event not later than
30 days after expiration or earlier termination of this lease. If Tenant
fails to give such a notice, the computation by Landlord shall be
binding and conclusive between the parties for the period in question.
If Tenant gives a timely notice, the dispute shall be resolved by an
independent certified public accountant selected by Landlord whose
decision shall be conclusive between the parties. Each party shall pay
one-half of the fee for making such determination except that if the
adjustment in favor of Tenant does not exceed ten percent of the
escalation amounts for the year in question, Tenant shall pay (i) the
entire cost of any such third-party determination; and (ii) Landlord's
out-of-pocket costs and reasonable expenses for personnel time in
responding to the audit. Nothing herein shall reduce Tenant's
obligations to make all payments as required by this lease.
20.1 Complete Agreement; No Implied Covenants.
This lease and the attached Exhibits and Schedules if any, constitute
the entire agreement of the parties and supersede all prior written and
oral agreements and representations and there are no implied covenants
or other agreements between the parties except as expressly set forth in
this Lease. Neither Landlord nor Tenant is relying on any
representations other than those expressly set forth herein.
-8-
9
20.2 Space Leased AS IS.
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.
20.3 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.
20.4 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.
20.5 Exhibits.
The following Exhibits are attached hereto and incorporated as a part of
this lease:
EXHIBIT A (LEGAL DESCRIPTION), EXHIBIT B (PREMISES PLAN), AND
EXHIBIT C (RULES AND REGULATIONS)
SEE ATTACHED ADDITIONAL PROVISIONS
-9-
10
IN WITNESS WHEREOF, the duly authorized representatives of the parties
have executed this lease as of the day and year first written above.
LANDLORD: By: /s/
PIONEER SQUARE ASSOCIATES, L.L.C., ----------------------------
A DELAWARE LIMITED LIABILITY COMPANY XXXXXXX XXXXXX, PRESIDENT
--------------------------------
Address for notices: ROCK ASSET MANAGEMENT
--------------------------------
000 X.X. Xxxxxxxxxx Xx., Xxxxx 000
XXXXXXXX, XXXXXX 00000 MANAGER
--------------------------------
TENANT: By: /s/
e.g. SOFTWARE ----------------------------
W. XXXXX XXXX, PRESIDENT
Address for notices: --------------------------------
0000 X.X. Xxxxx Xx. By: /s/
Xxxxxxxx, Xxxxxx 00000 -----------------------------
XXX XXXXXXX, CTO
Federal I.D. # 931123283 --------------------------------
Home Phone: 000-0000
-10-
11
STANDARD ADDENDUM TO OFFICE LEASE
Landlord: PIONEER SQUARE ASSOCIATES, LLC
Tenant: e.g. Software, Inc.
Date: June 4, 1997
THIS ADDENDUM ("Addendum") is made contemporaneously with and is part of
that certain Office Lease dated May 9, 1997, between the above-named Landlord
and the above-named Tenant for the Premises commonly known as Suite 1300 of the
American Bank Building, 000 XX Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxx. The defined,
capitalized terms used and Section numbers in the Lease shall have the same
meanings when used in this Addendum. In the event of any inconsistency between
the provisions of this Addendum and the provisions of the Lease, the provisions
of this Addendum shall govern the rights of the parties.
21.1 TENANT IMPROVEMENTS. Except as set forth in this Section 21.1, the
Premises are leased in their present condition "AS IS" and Landlord has no duty
to improve the same. All tenant improvements to be made by Landlord to the
Premises have been mutually agreed upon by Landlord and Tenant and are described
in the plans and specifications (the "Plans") attached hereto as Exhibit B and
B-1 (the "Tenant Improvements"). Landlord shall construct the Tenant
Improvements in the manner set forth below:
(a) COMPLETION OF IMPROVEMENTS. Landlord shall construct the
Tenant Improvements substantially in accordance with the Plans. Landlord shall
have the right to make minor modifications to the Tenant improvements during the
course of construction to accommodate actual site conditions or to comply with
governmental requirements.
(b) DELIVERY OF POSSESSION TO TENANT. Landlord shall deliver
possession of the Premises to Tenant after Landlord has substantially completed
the Tenant Improvements. The Tenant Improvements shall be deemed substantially
completed on the date that Landlord delivers to Tenant (a) a certificate of the
general contractor that the Tenant Improvements have been substantially
completed, and (b) a certificate of occupancy for the Premises which contains no
conditions which prevent occupancy of the Premises. Upon substantial completion,
the Premises shall be deemed tendered and delivered to Tenant. Tenant
acknowledges that certain items (commonly referred to as "punchlist items") may
remain to be performed or completed following substantial completion. Landlord
will promptly perform all punchlist work. Tenant and its agents shall not delay
or interfere with the completion of punchlist items. Upon request, Tenant shall
confirm, in writing, that Landlord has completed the Tenant Improvements (or has
completed the Tenant
-1-
12
Improvements except for specific punchlist items). Tenant shall notify Landlord
in writing of any items that Tenant deems incomplete in order for the Premises
to be acceptable to Tenant within ten (10) days following substantial
completion. Tenant shall be deemed to have accepted the Premises and approved
construction of the Tenant Improvements except only for items included in any
such notice.
(c) COMMENCEMENT DATE. The commencement date of the term of this
Lease and the date upon which rent shall commence to accrue shall be the
earliest of (i) October 1, 1997, (ii) the date upon which Tenant occupies all or
a part of the Premises for the conduct of its business, or (iii) the date upon
which Landlord delivers possession of the Premises in accordance with 21.1(b),
or (iv) the date Landlord would have delivered possession absent Tenant Delays
(defined below). In the event that the Tenant Improvements or any portion
thereof have not been completed by the commencement date, this Lease shall not
be invalid, but rather Landlord shall complete the Tenant Improvements as soon
thereafter as is possible and Landlord shall not be liable to Tenant for damages
in any respect whatsoever.
(d) TENANT DELAYS. All dates by which Landlord is to complete the
Tenant Improvements and/or to deliver possession of the Premises to Tenant shall
be extended by the number of days of delay occasioned by (a) acts, events, or
conditions beyond the reasonable control of Landlord (including, by way of
example, adverse weather, labor disturbances, shortages of materials, and/or
delays in governmental inspections or permit issuances), and/or (b) acts or
omissions of Tenant or its agents, including requests for changes to the Plans
("Tenant Delays"). Landlord shall be deemed to have completed each of its
obligations on the date the same would have been completed absent Tenant Delays.
Tenant shall reimburse Landlord within thirty (30) days of request for all cost
increases and other expenses caused by Tenant Delays.
(e) CHANGES. Landlord shall have no obligation to make changes in
the Plans requested by Tenant. In the event Landlord agrees to any requested
change, then (a) any additional costs resulting from the change shall be paid by
Tenant to Landlord upon Landlord's approval of the change, and (b) any delays in
substantial completion of the Tenant Improvements as a result of the change
shall be deemed Tenant Delays.
22.1 RIGHT OF FIRST REFUSAL. The "Expansion Space" is the leasable area
of the 14th floor of the Building. Subject to the preexisting right of Opton
Xxxxxx Xxxxxxxxx, P.C. (existing tenant suite 1410) to extend their lease, at
any time during the initial term of this Lease that Landlord receives a fully
executed letter of intent to lease the Expansion Space or any portion of it to a
prospective third party, Landlord shall communicate to Tenant, in writing, the
financial consideration and other financial terms of such letter of intent.
Landlord's communication shall constitute an offer to Tenant to lease the
Expansion Space or applicable portion thereof on the terms set forth in such
communication and otherwise on the terms set forth in Lease. Tenant specifically
acknowledges that a third party may be willing to lease the Expansion Space for
a term which is longer than the unexpired balance of the
-2-
13
initial term of this Lease, or as part of a larger space. Therefore, Landlord
may offer the Expansion Space or the applicable portion thereof to Tenant on
terms which require Tenant (a) to extend the balance of the term of this Lease
(at a rent acceptable to Landlord) to coincide with the length of the term being
considered with respect to the third party and/or, (b) to lease the entirety of
the larger space.
Tenant shall have until 5:00 p.m. on the Tenth (10th) working day
following receipt of Landlord's communication to agree in writing to lease the
Expansion Space on the terms offered by Landlord, and shall have five (5) days
following receipt of a lease or addendum prepared by Landlord to execute a lease
or an addendum hereto with Landlord for the space offered by Landlord's
communication, on the terms set forth in this Lease and in Landlord's
communication (it being acknowledged that Landlord's communication shall set
forth, in addition to other matters, the condition in which the offered space is
offered, the amount of any tenant improvement allowance, the amount of any
security deposit or additional security deposit required with respect to offered
space, and such other matters as Landlord may include). Should Tenant fail to
execute such a lease or addendum, or otherwise indicate rejection of such
communication, Landlord may negotiate with the intended third party and execute
a lease with such 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. If a lease with the third party
is signed, this shall terminate Tenant's rights hereunder as to the Expansion
Space. If a lease with the third party is not signed, the Expansion Space shall
again be subject to this right of First Refusal, but only as to letters of
intent containing financial terms materially less favorable to Landlord than any
proposal which Tenant has previously failed to accept under this Section.
As a condition to Landlord accepting a lease or addendum with Tenant
under this Section, Landlord shall have the right to review then current
financial statements of Tenant. If Landlord is not satisfied, in its discretion,
with the financial condition of Tenant, as demonstrated by such financial
statements, then Landlord may proceed to negotiate with the third party on the
same terms as if Tenant had rejected Landlord's communication.
All communications and notices under this Section shall be hand
delivered during business hours to Landlord at its offices at 000 X.X.
Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, XX 00000, and to Tenant at the Premises.
The rights of Tenant under this Section 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;
provided, however, in the event Tenant shall have exercised an expansion right
pursuant to this Section and Landlord subsequently terminates this Lease or
Tenant's right of possession hereunder for default, the damages to which
Landlord shall be entitled shall include damages with respect to the leasing of
the Expansion Space.
-3-
14
At such time as Tenant rejects a communication by Landlord or otherwise
has no rights (or less rights) with respect to Expansion Space or any portion
thereof, Tenant shall execute and deliver to Landlord a certificate setting
forth the status of the remaining rights, if any, which Tenant enjoys with
respect to the Expansion Space, the compliance of Landlord with the process set
forth in this Section, and such other matters as Landlord may recently request.
23.1 LANDLORD'S CONSENT. In no event shall Tenant have the right to
terminate this Lease, and in no event shall Landlord be liable for monetary
damages, based upon a claim that consent has been unreasonably withheld or
conditioned or otherwise arising from the withholding or conditioning of
consent.
24.1 AMERICANS WITH DISABILITIES ACT ("A.D.A."). Tenant acknowledges
that (a) compliance of the Premises with the A.D.A. depends upon the uses of the
Premises, the location of each use within the Premises, alterations which Tenant
makes to the Premises, and changes to these factors over time, and (b) Tenant
may have obligations under the A.D.A. as an employer which may differ from its
obligations as the operator of the Premises. Tenant shall make only such uses of
the Premises as comply with the A.D.A. Tenant agrees that in connection with any
installation of alterations and improvements by Tenant, Tenant shall comply with
all requirements of the A.D.A. relating thereto including, but not limited to,
any requirements to improve or modify other portions or aspects of the Premises
in connection with or as a result of the alterations or improvements
contemplated by Tenant, all at the expense of Tenant.
25.1 ATTORNEY FEES. In the event of any litigation between Landlord and
Tenant with regard to this Lease, including litigation or proceedings in
Bankruptcy Court whether or not regarding issues which are unique to bankruptcy
law, the prevailing party shall be entitled to recover, in addition to all other
sums and relief, its reasonable costs and attorney fees incurred at and in
preparation for such litigation or proceedings, including arbitration, trial,
appeal and review.
26.1 LIMITATION ON LANDLORD LIABILITY. Landlord shall not be liable for
injury or damage to the person, merchandise, or other property of Tenant,
Tenant's employees, invitees, customers, or any other person in or about the
Premises, whether such damage or injury is caused by or results from fire,
steam, electricity, gas, water or rain, or from the breakage, leakage,
obstruction or other defects of pipes, fire sprinklers, wires, appliances,
plumbing, air conditioning or lighting fixtures, or from any other cause,
whether said injury or damage results from conditions arising upon the Premises
or upon other portions of the Building of which the Premises are a part, or from
other sources or places, and regardless of whether the cause of such damage or
injury or the means of repairing the same is accessible or not. Landlord shall
not be liable for any damages arising from any act or neglect of any other
tenant of Landlord. Notwithstanding Landlord's negligence or breach of this
Lease, Landlord shall under no circumstances be liable for injury to Tenant's
business or for any loss of income or profit therefrom. Tenant further agrees
that, in the event of any actual or
-4-
15
alleged failure, breach or default hereunder by Landlord, Tenant's sole and
exclusive remedy shall be against the Landlord's interest in the Building.
Tenant agrees that the obligations of Landlord under this Lease do not
constitute personal obligations of the Landlord and Tenant shall not seek
recourse against Landlord or any of its personal assets for satisfaction of any
liability with respect to this Lease. For purposes of this Section, the term
"Landlord" means and includes the Landlord named below and any successor
landlord, the agents and property managers of such lessors, and the owners,
employees, and agents of the foregoing.
26.2 LANDLORD INDEMNIFICATION. Subject to the provisions of Section 26.1
above and the other provisions of the Lease and this Addendum which limit the
liability of Landlord hereunder, Landlord agrees to indemnify and to defend
Tenant from any claim, liability, damage, or loss to the extent the same arises
out of the negligence of Landlord or its agents.
27.1 EARLY EXPIRATION. Tenant shall have the right to cause the term of
this Lease to expire on that date which is the first day of the 37th full
calendar month following the Commencement Date (herein the "Revised Expiration
Date"), upon and subject to the following provisions.
(a) This right shall be exercised, if at all, by written notice (the
"Expiration Notice") given by Tenant to Landlord no later than one hundred
eighty (180) days prior to the Revised Expiration Date. Such Expiration Notice
shall be valid only if (i) it is given within the time specified above, (ii)
prior to the giving of such notice, Tenant shall not have assigned its interest
hereunder or sublet all or any portion of the Premises for a term that would
extend beyond the Revised Expiration Date, (iii) Tenant shall not be in default
and no act, event, condition, or omission has occurred which, alone or together
with notice and/or the passage of time, would constitute a default under the
terms of this Lease, and (iv) such Expiration Notice is accompanied by the
payment required by paragraph (b) below.
(b) The Expiration Notice shall be deemed given and received only if
accompanied by payment, by cashier's check, of an amount equal to one month of
rent (i.e., $14,253.33). In the event rent hereunder shall increase, then the
amount of the payment shall increase proportionately. The parties agree that
such payment is to be paid to compensate Landlord for economic loss which
Landlord would suffer by reason of the early expiration of this Lease and that
the amount of such compensation has been negotiated by the parties and is agreed
to be reasonable. Tenant understands that Landlord does not typically grant
early expiration rights and that Landlord would be unwilling to grant such a
right in this Lease absent this agreement to be reasonably compensated.
(c) Upon the giving of the Expiration Notice and the making of the
payment required above, the expiration date of the term of this Lease shall be
and become the Revised Expiration Date as perfectly as if such Revised
Expiration Date had been the expiration date originally set forth in this Lease.
Until such Revised Expiration Date, this Lease shall continue in full force and
effect (except as specified in paragraph (d) below), without abatement of rent
or other diminishment of the obligations of Tenant hereunder. The
-5-
16
expiration of the Lease upon the Revised Expiration Date shall not terminate any
previously accrued liabilities or obligations of Tenant, all of which shall
survive such expiration.
(d) The giving of an Expiration Notice shall constitute the irrevocable
waiver by Tenant of any right to exercise any option to renew or to extend this
Lease and the waiver of any right of first refusal, first opportunity, or other
right to lease or to negotiate for the lease of additional space.
(e) In the event Tenant exercises any right to renew or extend the term
of this Lease or to Lease any additional space to be added to the Premises, then
the exercise of any such right shall automatically amend the provisions of this
Section (e) to reset the Revised Expiration Date to be that date which is the
first day of the 37th month following the first day of the renewal or extension
term or the first day upon which Tenant accepts rent paying occupancy of the
additional space, as the case may be, and the amount of the payment required to
be made at the time of the giving of the Exercise Notice shall be equal to two
times the monthly rent payable for the last month preceding the Revised
Expiration Date.
(f) Upon request following the giving of an Expiration Notice, either
party shall execute an amendment to this Lease setting forth the revision of the
expiration date; provided, the failure of the parties to execute any such
amendment shall not affect their respective rights hereunder. At any time within
ten days of written request, Tenant shall execute and deliver a statement
indicating whether or not an Expiration Notice has been given and such matters
with respect to any Expiration Notice which has been given as Landlord may
request.
28.1 HEATING, VENTILATION AND AIR CONDITIONING. Landlord shall make
heating and air conditioning under Paragraph 5.1 available to Tenant after hours
for an additional charge of $40.00 per hour.
-6-
17
Landlord: PIONEER SQUARE ASSOCIATES, LLC, a
Delaware limited liability company
By: ROCK ASSET MANAGEMENT, a
California, corporation,
Manager
By: /s/
-----------------------------
Xxxxxxx Xxxxxx, President
Date: 6/4/97
Tenant: e.g. Software, Inc.
By: /s/
-----------------------------
W. Xxxxx Xxxx, President
Date: 6/4/97
By: /s/
-----------------------------
Xxx Xxxxxxx, CTO
Date: 6/4/97
-7-
18
EXHIBIT "A"
LEGAL DESCRIPTION
AMERICAN BANK BUILDING
A portion of Block 178, CITY OF PORTLAND, in the City of Portland, County of
Multnomah and State of Oregon, described as follows:
Beginning at the Southwesterly xxxxxx xx Xxxxx 000, XXXX XX XXXXXXXX, Xxxxxx of
Multnomah and State of Oregon, according to the recorded plat thereof, at the
intersection of the East line of Seventh Street (now SW Broadway) with the North
line of XX Xxxxxxxx Street and running thence Easterly with said North line of
XX Xxxxxxxx Street, 200 feet to the Southeasterly corner of said block; thence
Northerly with the West line of SW 6th Street, 75 feet; thence Westerly and
parallel with the North line of said X.X. Xxxxxxxx Street, 70.15 feet, more or
less; thence Southerly and parallel with the West line of SW 6th Street, 5 feet;
thence Westerly and parallel with the said XX Xxxxxxxx Street, 70 feet; thence
Northerly and parallel with the East line of Seventh Street, (now SW Broadway) 5
feet; thence Westerly and parallel with the North line of XX Xxxxxxxx Street,
59.85 feet, more or less, to the East line of Seventh Street (now SW Broadway);
thence South along the East line of Seventh Street (now SW Broadway) 75 feet to
the place of beginning.
19
EXHIBIT "B"
AMERICAN BANK BUILDING
THIRTEENTH FLOOR
(NOT TO SCALE)
[DIAGRAM]
20
EXHIBIT B-1
LANDLORD IMPROVEMENTS
Landlord shall provide the following improvements to Suite 1300, the American
Bank Building using building standard finishes:
1. Carpet and pad;
2. Paint throughout;
3. Extension of Tenant cabling from Suite 1025 to Suite 650 during
Tenant's temporary occupancy of Suite 650;
4. Cabling of Suite 1300 per the specification contained in the
letter of Xxxxxxxxxxx Electric to Xxxx Xxxxxxx dated May 13,
1997. Landlord shall not be required to use Xxxxxxxxxxx Electric
to accomplish cabling work; and,
5. Landlord shall either provide existing tenant's (Xxxxxxx,
Zakovics & Xxxxxx, P.C.) workstations and reception counter or
may build similar workstations and reception counter using
melamine and plastic laminate instead of wood finishes at
Landlord's option.
No other improvements are contemplated.
21
EXHIBIT "C"
Rules and Regulations
1. Lessee will deposit all garbage in the receptacles the Lessor provides for
garbage and will not leave or accumulate any boxes, packing material, or other
trash of any kind on the premises or common areas.
2. Lessee shall not display any merchandise outside the premises at any time
without the prior written consent of the Lessor.
3. Lessee shall not erect or install any signs or advertising material or
devices in or about the Premises without the previous approval of the Lessor.
Lessee shall not place upon or install in windows or other openings or exterior
sides of doors or walls of the Premises or any part of the Premises visible from
the exterior of the Premises any signs, symbols, drapes or other materials
without prior written consent of Lessor.
4. Lessee shall ensure that no animals are kept in or about the Premises and
that the Premises are not used for sleeping quarters.
5. Lessee shall not bring upon the Premises any machinery, equipment, or article
or thing that by reason of it's weight, size or use might damage the Premises
and that it will not at any time overload the floors of the Premises.
6. All deliveries shall be made to the loading entrance provided and during such
periods as shall be designated by Lessor. Lessee shall not interfere with
access.
7. No auction, quitting business, bankruptcy, fire, or similar sale shall be
conducted on the premises without the prior approval of the Lessor.
8. Use of Service Elevator. The Landlord shall designate appropriate entrances
and a "service" elevator for deliveries or other movement to or from the
Premises of equipment, materials, supplies, furniture or other property, and
Lessee shall not use any other entrances or elevators for such purposes. The
service elevator shall be available for use by all tenants in the building,
subject to such reasonable scheduling as Landlord in its discretion shall deem
appropriate.
9. Any directory provided by the Lessor for the Building will be for display of
the business name and location of Lessees and Lessor reserves the right to
exclude any other names.
10. Lessee shall not place any new or additional locks on any doors of the
Premises or re-key any existing locks without the consent of the Lessor.
11. Lessor reserves the right to exclude or expel from the common areas any
person who, in the judgement of the Lessor, is intoxicated, under the influence
of drugs, or who shall in any manner violate any of the rules and regulations.
12. Lessee shall not do or permit to be done within the Premises anything which
would unreasonably annoy or interfere with the rights of other Lessees of the
Building.
13. Lessee shall not permit it's employees or invitees to loiter in or about the
common areas, or to obstruct any of the parking, truck maneuvering, or other
common areas, or to place, empty, or throw any rubbish, litter, trash or
material of any nature upon any common areas.
22
14. No storage of materials, equipment, or property of any kind is permitted
outside the Premises (except in designated locations with Lessor's consent) and
any such property may be removed by Lessor at Lessee's risk and expense.
15. Lessee shall not make or permit any use of the Premises which may be
dangerous to life, limb or property, or any noise, odor or vibrations to emit
from the Premises which are objectionable to Landlord or other occupants of the
Building; or to create, maintain, or permit a nuisance or any violation of any
regulation of any governmental agency thereon.
16. Lessee shall not commit or permit to be committed any waste, damage or
injury to the Premises or other common areas adjoining the Building and shall
promptly repair the same at it's expense.
17. Lessee shall not at any time display a "For Rent" sign upon the Premises.
18. Lessee shall be responsible for keeping a copy of the Lease and Lessor's
current rules and regulations upon the Premises.
19. Lessee shall not waste electricity or water and agrees to cooperate fully
with Lessor to assure the most effective and economical use of utilities
services as may be provided to the Building by Lessor.
20. Lessee shall keep Lessor advised of the current telephone numbers of
Lessee's employees who may be contacted in an emergency; i.e. fire, break-in,
vandalism, etc. If Lessor shall deem it necessary to respond to such emergency
in Lessees behalf, Lessee shall pay all costs incurred for services ordered by
Lessor to secure or otherwise protect the Premises and the contents thereof,
including premium charge for any time spent by Lessor's employees in responding
to such an emergency.
21. Bicycles are not allowed in the Building under any circumstances.
22. All common areas, including the restrooms, and all storage areas are
non-smoking areas.
23
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE is made this 8th day of September, 1998 by
and between CITY CENTER RETAIL TRUST, a Maryland real estate investment trust
("Landlord"), and WEBTRENDS CORPORATION, a corporation, formerly known as e.g.
Software, Inc. ("Tenant").
RECITALS
A. Landlord and Tenant are parties to that certain Lease dated May 22,
1997 which was executed June 4, 1997 ("Lease"). Pursuant to the Lease, Landlord
is leasing to Tenant and Tenant is leasing from Landlord Suite 1300 of the
American Bank Building in Portland, Oregon ("Premises").
B. Tenant has proposed an assignment of its interest in the Lease to a
third party. Under Section 10.1 of the Lease, Landlord has the right to
terminate the Lease as a result of such proposed assignment. Understanding that
Landlord holds such a termination right, Tenant has requested a modification to
the Lease to advance the expiration date of the term of the Lease. Landlord is
willing to agree to such a request, on the terms and conditions set forth
herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are acknowledged by each of the parties, it is agreed as
follows.
1. Assignment Proposal. Tenant hereby withdraws its request for consent
to the proposed assignment of its interest in the Lease. Tenant acknowledges
that Landlord has responded to the previous request for consent by Tenant in a
manner which is and was reasonable and that Landlord has fulfilled all of its
obligations with respect to the request for consent to the proposed assignment.
Tenant further agrees and acknowledges that, in connection with this Amendment
to the Lease, Landlord has acted, in all respects, in accordance with its
obligations under the Lease and any obligations otherwise imposed by law.
2. Early Expiration. Landlord and Tenant hereby agree that the term of
the Lease shall expire on January 31, 1999 ("Revised Expiration Date"), rather
than on the originally scheduled expiration date of the term. Upon the Revised
Expiration Date, the term of the Lease shall expire as perfectly as if the
Revised Expiration Date had been the expiration date originally set forth in the
Lease. Until the Revised Expiration Date, the Lease shall continue in full force
and effect.
3. Payment. As consideration for the substitution of the Revised
Expiration Date for the originally scheduled expiration date of the term, Tenant
shall pay to Landlord, no later than September 30, 1998 the sum of $20,547.66;
this figure consists of $20,043.75 representing 45 days of Monthly Base Rent at
the rate of $15 per square foot per year, and $503.91 representing an estimate
of 45 days of additional rent for real property taxes and
24
operating expenses at the estimated rate applicable during the first quarter of
1999. In the event the payment required by this Section 3 is not timely made,
Landlord shall have the right, at its election, (a) to treat the same as a
failure of a condition to the revision of the expiration date, in which event
the originally scheduled expiration date of the term shall remain in effect and
the term of the Lease shall continue until the originally scheduled expiration
date, or (b) to treat the same as any other failure to pay rent under the Lease.
4. Inspection. On or prior to the Revised Expiration Date, the Tenant
shall vacate the Premises, removing all of the property of Tenant from the
Premises and leaving the Premises in the condition required by the Lease.
Following such vacation of the Premises, Landlord shall inspect the Premises (in
the company of a representative of Tenant, if Tenant so requests) to determine
whether Tenant has complied with its obligations under the Lease. Neither the
vacation of the Premises nor the occurrence of the Revised Expiration Date shall
relieve Tenant of its obligations with regard to the condition of the Premises.
Any property of Tenant left in the Premises shall be deemed abandoned and
Landlord shall have the right to remove and to dispose of the same, as Tenant's
cost.
5. Survival. The indemnity and attorneys' fees provisions of the Lease,
together with all of the obligations and liabilities of Tenant arising or
accruing under the Lease prior to the Revised Expiration Date and vacation of
the space by Tenant, shall survive the expiration of the term of the Lease.
6. Time. Time is of the essence with respect to the Lease, including
with respect to the provisions of this Amendment. Tenant acknowledges that
Landlord intends to make arrangements for re-letting all or a portion of the
Premises to a different lessee, and that timing is of great importance. In the
event Tenant holds over in the Premises beyond the Revised Expiration Date, such
holding over shall constitute a tenancy at sufferance only terminable by
Landlord upon 72 hours written notice. During any such holdover tenancy, the
monthly rental hereunder shall be increased to $30 per square foot per year,
prorated on a daily basis. In addition, Tenant shall be liable for all damages
caused to Landlord by reason of such failure to vacate.
7. Access. Tenant agrees to allow Landlord and its agents access to the
Premises prior to the Revised Expiration Date for purposes of showing the
Premises to prospective lessees and/or planning the remodeling of the Premises
for succeeding lessees, so long as such activities of Landlord do not
unreasonably interfere with the use of the Premises by Tenant.
8. Accounting Matters. Landlord holds a security deposit in the sum of
$4,901.16 from Tenant. Following the inspection referenced above and the
determination of any liabilities then known to be owed from Tenant to Landlord,
an accounting of the security deposit shall be rendered and any excess amount
promptly refunded to Tenant. Landlord shall, following each of 1998 and 1999,
perform its customary reconciliation of additional rent payments for property
taxes and operating expenses for the year then ended and any adjustment payment
shall be made between the parties following such reconciliation. Such
25
reconciliation shall include the 45-day estimated additional rent amount paid by
Tenant pursuant to Section 3 above.
9. Waiver. Tenant agrees and acknowledges that Landlord has performed
all of its obligations under and with respect to the Lease and that Tenant has
no right to claim any offset against amounts payable under the Lease. Tenant
hereby waives and releases all claims, known or unknown, previously accrued or
arising against Landlord or any of its agents with respect to the Lease and/or
the Premises.
10. Attorneys' Fees. In the event of litigation with respect to the
Lease, the prevailing party shall be entitled to recover, in addition to all
other costs and expenses, its reasonable attorneys' fees incurred at and in
preparation for arbitration, trial, appeal and review. This provision shall
apply to litigation and proceedings in bankruptcy court, including litigation or
proceedings involving issues unique to bankruptcy law.
11. Notice as to Liability. In accordance with the Declaration of Trust
of Landlord, notice is hereby given that all persons dealing with Landlord shall
look solely to the assets of Landlord for the enforcement of any claim against
Landlord, as neither the trustees, officers, nor shareholders of Landlord assume
any personal liability for obligations entered into by or on behalf of Landlord.
Tenant acknowledges and agrees that the foregoing provision is hereby
incorporated into the Lease for all purposes.
12. Effect of Amendment. This Amendment shall be effective only when
executed and delivered by each of the parties hereto. Submission of this
Amendment for review does not constitute an offer by Landlord to Tenant. This
document may not be relied upon, nor may any claim for reliance or estoppel be
made based upon this document, unless and until this document is fully executed
and delivered by each party. Upon such full execution and delivery, this
Amendment shall amend the Lease and shall become a part of the Lease. Except as
expressly amended hereby, the Lease remains in full force and effect and the
same is hereby ratified and confirmed.
IN WITNESS WHEREOF, this Amendment has been executed as of the date
first above written.
Landlord: CITY CENTER RETAIL TRUST,
a Maryland real estate investment trust
By: /s/
------------------------------------
Its: Senior Vice President
Tenant: WEBTRENDS CORPORATION, a
corporation
By: /s/
------------------------------------
Its: President
