1
EXHIBIT 10.5
Standard Form of OFFICE BUILDING LEASE Developed by PORTLAND METROPOLITAN
ASSOCIATION OF BUILDING OWNERS AND MANAGERS
OFFICE LEASE
[LOGO] This lease, made and entered into at PORTLAND, Oregon, this 15TH
day of SEPTEMBER,
1998 by and between
LANDLORD: CITY CENTER RETAIL TRUST
and
TENANT:WEBTRENDS CORPORATION
Landlord hereby leases to Tenant the following: SUITE 525
(the Premises)
in AMERICAN BANK BUILDING (the Building)
at 000 X.X. XXXXXXXX XXXXXXXX, Xxxxxx, containing approximately 4816 rentable
square feet as shown on the attached floor plan, calculated using
a load factor of 10 percent.
Tenant's Proportion Share for purposes of Section 19 shall be 3.04%.
This lease is for a term commencing OCTOBER 1, 1998 at a
MONTH-TO-MONTH
Monthly Base Rental as follows: $7,950.37
Rent is payable in advance on the FIRST day of each month
commencing OCTOBER, 1998.
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 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
Page 1
2
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 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.
Page 2
3
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.
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
effective rental paid by the subtenant or assignee is not less than
the current scheduled rental rate of the Building for comparable
space and 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 paid to 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.
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
Page 3
4
special requirements. Landlord may xxx periodically to recover
damages as they occur throughout the lease term, and no action for
accrued damages shall bar a later action for damages subsequently
accruing. Landlord may elect in any one action to recover accrued
damages plus damages attributable to the remaining term of the
lease. Such damages shall be measured by the difference between the
rent under this lease 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 being 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.
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 (here after 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.
Page 4
5
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 N/A - N/A tax year, then the monthly rental for the
next succeeding calendar year shall be increased by one-twelfth of
such tax 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.
19.2 ADDITIONAL RENT-COST-OF-LIVING ADJUSTMENT.
On each anniversary date of this lease, the Landlord shall adjust
the base rental in the same percentage as the increase, if any, in
the Consumer Price Index published by the United States Department
of Labor, Bureau of Labor Statistics. The change shall be computed
by comparing the schedule entitled "U.S. City Average, All Items,
All Urban Consumers, 1982 - 84 = 100" for the latest available month
preceding the month in which the lease term commenced with the same
figure for the same month in the years for which the adjustment is
computed. All comparisons shall be made using index figures derived
from the same base period and in no event shall this provision
operate to decrease the monthly rental for the Premises below the
initial stated monthly rental, plus property tax adjustments and
operating expense adjustments as provided in this Lease. If the
index cited above is revised or discontinued during the term of this
Lease then the index that is designated by the Portland Metropolitan
Association of Building Owners and Managers to replace it shall be
used.
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 N/A
(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.
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:
Page 5
6
STANDARD LEASE ADDENDUM A.) LEGAL DESCRIPTION
B.) PREMISES PLAN C.) RULES & REGULATIONS
Page 6
7
IN WITNESS WHEREOF, the duly authorized representatives of the parties have
executed this lease as of the day and year first written above.
CITY CENTER RETAIL TRUST
LANDLORD: CITY CENTER RETAIL TRUST By: /s/
C/X XXXXXX PARK PROPERTIES ---------------------------
Title: Vice President
------------------------
Address for notices:
000 XX XXXXXXXXXX, XXX. 000 By:
---------------------------- ---------------------------
XXXXXXXX, XXXXXX 00000 Title:
---------------------------- ------------------------
WEBTRENDS CORPORATION
TENANT: WEBTRENDS CORPORATION By: /s/
---------------------------
W. XXXX XXXX
PRESIDENT
Address for notices:
000 XX XXXXXXXX, XXX. 0000 By: /s/
---------------------------- ---------------------------
XXXXXXXX, XXXXXX 00000 XXX XXXXXXX
Title: CEO
------------------------
Page 7
8
STANDARD ADDENDUM TO OFFICE LEASE
Landlord: CITY CENTER RETAIL TRUST
Tenant: Webtrends Corporation
Date: September 15, 1998
THIS ADDENDUM ("Addendum") is made contemporaneously with and is a part
of that certain Office Lease dated September 15, 1998, between the above-named
Landlord and the above-named Tenant for the Premises commonly known as Suit 525
of the American Bank Building, 000 X.X. Xxxxxxxx, 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 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.
22.1 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. and shall comply and cause the Premises
to 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
or the Building in connection with or as a result of the alterations or
improvements contemplated by Tenant, all at the expense of Tenant.
23.1 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.
24.1 LIMITATION ON LANDLORD LIABILITY. Landlord shall not be liable for
injury or damage to persons, business, or the 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 any loss of income or profit therefrom. Tenant further agrees that,
in the event of any actual or 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 the 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 24.1, 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.
-1-
9
Landlord: CITY CENTER RETAIL TRUST
By: /s/
--------------------------------------
Its: Vice President
-------------------------------------
Tenant: Webtrends Corporation
By: /s/
--------------------------------------
W. Xxxx Xxxx
Its: President
-------------------------------------
By: /s/
--------------------------------------
Xxx Xxxxxxx
Its: CEO
-------------------------------------
-2-
10
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 XX 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.
11
EXHIBIT B
[diagram]
12
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 its 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.
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.
13
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. Building codes and keys in the possession of Tenant and Tenant's employees
are not to be given to non-tenants for any reason.
