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XXXX XXXXX - WAREHOUSE LEASE
0000 X. XXXXXXX
XXXXX XXXXX - SWAN ISLAND, PORTLAND
RIDER TO LEASE
DATED: As of November 1, 1994
BETWEEN: REAL ESTATE PROPERTIES LIMITED PARTNERSHIP "Landlord"
AND: XXXX XXXXX, INC. "Tenant"
This Rider to Lease ("Rider") hereby amends and supplements and is
incorporated into and made part of that certain Lease dated AS OF NOVEMBER 16,
1994 between the parties (the "Lease") with respect to approximately 3,490
square feet of WAREHOUSE space AND CERTAIN ADJOINING LAND AREA SHOWN ON THE SITE
PLAN ATTACHED HERETO AS EXHIBIT A (the "Premises") located at 0000 X. XXXXXXX,
XXXXX XXXXX - SWAN ISLAND, PORTLAND, OREGON (the "Facility") as more
particularly described in the Lease. Capitalized terms not otherwise defined in
this Addendum shall have the meanings ascribed in the other provisions of this
Lease. In the event of any inconsistency or ambiguity between the terms of this
Rider and the other terms of this Lease, the terms of this Rider shall prevail.
The Lease is hereby supplemented and amended as follows:
RIDER - TERM; DELIVERY OF POSSESSION. The Lease term will
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commence DECEMBER 21, 1994 and end on DECEMBER 31, 1995, SUBJECT TO THREE
SUCCESSIVE OPTIONS FOR TENANT TO EXTEND SUCH TERM FOR ADDITIONAL 12-MONTH
PERIODS BY WRITTEN NOTICE TO LANDLORD NOT LATER THAN 90 DAYS PRIOR TO THE END OF
THE THEN CURRENT TERM.
THE PREMISES IS CURRENTLY VACANT AND LANDLORD IS PRESENTLY ABLE TO
EFFECT DELIVERY OF POSSESSION.
RIDER 1 - USE. The permitted use by Tenant UNDER SECTION 1(A)
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will include WAREHOUSE, RELATED OFFICE (IF ANY), PARKING AND any OTHER lawful
uses permitted by zoning and other governmental regulations affecting the
Premises.
RIDER 1(B) TENANT'S LIABILITY FOR INCREASED FIRE INSURANCE
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PREMIUMS, OTHER MATTERS. Landlord will promptly notify Tenant
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if Landlord's insurance carrier or underwriter or other person claims an
increase in premiums attributable to Tenant's use of the Premises or that
Tenant's activities on or about the Premises may invalidate such coverage or do
not comply with applicable requirements, and will cooperate with Tenant, at
Tenant's reasonable expense, to resolve such matter. Landlord represents to
Tenant that (to the best of Landlord's knowledge) the uses of the Premises
allowed Tenant under this Lease comply
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with and do not violate any provision of any insurance Landlord may now or
hereafter obtain affecting the Premises or Facility. Landlord shall promptly
provide Tenant with complete copies of all such policies which Tenant is
required to comply (UNDER SECTION 2(B)).
LANDLORD HAS DISCLOSED TO TENANT THAT LANDLORD HAS DISCOVERED A FILL
PIPE AND A VENT PIPE ON OR NEAR THE PROPERTY (APPROXIMATELY 8 FEET OUT FROM THE
BUILDING), AND THAT THERE MAY BE AN UNDERGROUND OIL STORAGE TANK OR OTHER TANK
ON OR NEAR THE PROPERTY. LANDLORD WILL HAVE THE RIGHT AND OBLIGATION TO
DETERMINE WHETHER SUCH TANK EXISTS AND TO TAKE SUCH STEPS AS ARE REQUIRED BY LAW
TO DECOMMISSION AND REMOVE THE TANK AND PIPING AND ANY CONTAMINATED SOIL AROUND
THEM AND OTHERWISE COMPLY WITH APPLICABLE LEGAL REQUIREMENTS RELATED THERETO.
LANDLORD WILL KEEP TENANT REASONABLY INFORMED ABOUT THE STATUS OF SUCH
WORK AND WILL INDEMNIFY TENANT (AND ITS SUBTENANT) AGAINST ANY CLAIM, LOSS OR
REASONABLE OUT-OF-POCKET EXPENSE (INCLUDING REASONABLE ATTORNEY FEES) RELATED TO
THE PRESENCE AND REMOVAL OF SUCH TANK, PIPES AND ANY CONTAMINATED SOIL. LANDLORD
WILL PROVIDE TENANT, ON REQUEST, WITH COPIES OF ANY STUDIES, REPORTS OR NOTICES
RECEIVED BY LANDLORD IN CONNECTION THEREWITH AN ANY NOTICES OR FILINGS BY
LANDLORD IN CONNECTION WITH SUCH MATTERS.
TENANT WILL REASONABLY COOPERATE (AT NO OUT-OF-POCKET COST TO TENANT)
IN CONNECTION WITH LANDLORD'S WORK RELATED TO SUCH TANK, PIPES AND ANY
CONTAMINATED SOIL AND WILL GIVE (OR REQUIRE ITS SUBTENANT TO GIVE) LANDLORD
ACCESS TO PERFORM SUCH WORK. TENANT (AND ITS SUBTENANT) ARE NOT ASSUMING ANY
OBLIGATION
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RELATED TO SUCH TANK, PIPES AND ANY CONTAMINATED SOIL.
RIDER 1(B) INSTALLATION. Tenant will not be required to
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obtain Landlord's prior approval (UNDER SECTION 2(C)) of the use of power tools
and other machinery and equipment typically used in the conduct of Tenant's
permitted use and that do not pose a risk of any building overload.
RIDER 1(D) SURRENDER. The "ADDITIONS" to be surrendered (UNDER
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SECTION 2(D)) will not include Tenant's furniture, fixtures and equipment
("FF&E") or personal property.
RIDER 2 SECURITY DEPOSIT. The requirement of a security
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deposit (UNDER SECTION 2) is waived.
RIDER 3(B) MAINTENANCE. NOTWITHSTANDING THE PROVISIONS OF
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SECTION 3(B) OF THE LEASE, DURING THE INITIAL 12 MONTHS OF THE LEASE TERM,
LANDLORD WILL BE RESPONSIBLE FOR PERFORMING ANY WORK REQUIRED TO THE ITEMS
LISTED IN THE THIRD SENTENCE OF SECTION 3(B) OF THE LEASE.
RIDER 4 TAXES; OPERATING COSTS. Notwithstanding SECTION 4 OR
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any OTHER provision of the Lease, Tenant's obligations to pay taxes and
assessments ("Taxes") and operating costs are subject to the following:
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(a) Landlord estimates that the initial payments under
this paragraph will be $210 per month. Any adjustments by
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Landlord to the estimated monthly payment and Landlord's annual summary of
the actual Taxes and operating costs will include reasonable detail
concerning the Taxes and operating costs paid or to be paid.
(b) For purposes of SECTION 4 AND OTHER provisions of the Lease
computing Tenant's share of costs based on the rentable area ("FLOOR
AREA"), Tenant's share of costs will be determined based on the floor area
of the Premises divided by the leasable floor area of the Facility (whether
or not leased, occupied or open for business).
(c) The Taxes which Tenant may be required to pay or
share under the Lease shall not include any excise, income,
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franchise, corporate, capital levy, capital stock, gross receipts, excess
profits, transfer, revenue, estate, inheritance, gift or devolution or
succession tax payable by Landlord, or any other tax, assessment, charge or
levy upon, or measured in whole or in part by, the rent payable hereunder
by Tenant.
(d) As to any Taxes which are payable in installments or any
assessment which is capable of being bonded, only the installment payment
or bonded installment amount may be included in the amounts required to be
paid by Tenant (whether or not Landlord actually elects to pay Taxes in
installments or bond the assessment).
(e) The periodic computation of actual costs compared to estimated
payments and adjustment between the parties will occur not less frequently
than annually, when the actual costs are determinable.
(f) Operating costs are subject to Tenant's standard
exclusions on the Schedule attached hereto.
(g) Landlord will maintain and make available to Tenant for its review
and audit or examination of Landlord's books and records pertaining to
expenses under this Section, and of any other expenses chargeable to Tenant
under this Lease. Any adjustment to the required monthly installment or
payment or estimate shall be made after thirty (30) days advance notice
containing the amount of the adjustment, how it was calculated and
allocated, and such information about the costs actually incurred by
Landlord as Tenant may reasonably require. No adjustments will be made
retroactively for any period or expense incurred more than eighteen (18)
months prior to the date of the adjustment.
(h) Tenant, at Tenant's sole cost and expense, and after giving
Landlord reasonable advance notice, may cause an examination or audit to be
made of Landlord's books and records relating to expenses charged to Tenant
(but not in any event more frequently than once every year). If it
discloses (and the parties agree that) an error in calculation of the
xxxxxxxx to Tenant, Tenant shall promptly pay the underpayment or Landlord
shall promptly pay to Tenant the overpayment, whichever the case may be,
and if there has been an overpayment of more than five percent
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(5%), Landlord shall reimburse Tenant for the reasonable
cost of the examination or audit.
RIDER 5 PARKING. THE EXCLUSIVE PARKING AREA IS MARKED ON
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EXHIBIT A.
RIDER 6(B) TENANT'S INSURANCE. Notwithstanding anything to the
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contrary in this Lease, Tenant shall, so long as it has a net worth of at least
$50,000,000, have the right to self insure all or any portion of the risks for
which Tenant is required to carry insurance under this Lease, in lieu of
carrying the policies described in this Lease.
By execution of this Lease, Landlord acknowledges that it has approved
(for purposes of the Lease) Tenant's insurance coverages, companies and
deductibles and self-insurance arrangements, as set forth in information
previously provided to Landlord in connection with this Lease.
RIDER 7(A) TERMINATION BY LANDLORD ON PARTIAL DESTRUCTION OR
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CONDEMNATION. Landlord will not exercise its right to terminate
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Tenant's Lease on a selective basis, unless Landlord is also terminating the
leases of similarly affected tenants generally at the Facility. If a casualty or
condemnation event occurs that would give Landlord an election whether or not to
terminate the Lease, Landlord will notify Tenant within 60 days after the event
occurs as to whether Landlord has decided to terminate the Lease or is willing
to restore the Facility. If Landlord is willing to restore, Landlord's notice
will contain reasonable detail on the plan and schedule for restoration
("Restoration Plan"). Tenant will have 15 days after receipt of any notice of a
Restoration Plan to either approve the plan or terminate the Lease (if Tenant is
not satisfied with the plan).
RIDER 9 TRANSFERS. Notwithstanding any other provisions of the
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Lease (INCLUDING SECTION 9), the Lease will not restrict or
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require Landlord's consent for any sublease or concession
arrangement by Tenant and will not restrict or apply to any sale
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or transfer of stock of Tenant.
Notwithstanding any other provision of this Lease, the provisions of
SECTION 9 OF the Lease shall not apply to or restrict: (1) a transfer or
assignment of this Lease to any corporation that is controlled by, controlling
of, or under common control with, Tenant, where "control" means ownership of the
interests constituting 50 percent or more of the voting power of a corporation
or partnership (an "Affiliate Transfer"); or (2) an assignment or transfer of
this Lease in connection with a sale of all or substantially all of the assets
of Tenant or in connection with a merger, consolidation, acquisition of a
controlling interest in Tenant's stock, or other significant corporate
transaction ("Transaction Transfer"). No Affiliate Transfer shall constitute a
release of Tenant unless Landlord agrees otherwise in writing. Tenant shall
promptly notify Landlord of any Affiliate Transfer or Transaction Transfer.
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Where Landlord's consent is required for a transfer by Tenant,
Landlord will give (or reasonably deny) its consent in writing within 20 days
after receipt of a written request, including the name of the Transferee and
such other information as Landlord may reasonably require.
RIDER 9(A) REASON FOR ANY DISAPPROVAL PROVIDED. Landlord will
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not take action to terminate this Lease because of an unapproved transfer or
take other action against Tenant without first giving Tenant a written statement
specifying the particular reasons why the proposed transfer and transferee were
not reasonable acceptable to Landlord and any steps required to be taken by
Tenant (if applicable) to obtain Landlord's consent, and at least twenty (20)
days for Tenant to comply with such requirements or take other appropriate
action with respect to Landlord's refusal to grant consent.
RIDER 10(A) EVENTS OF DEFAULT. Landlord will not have the
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right to terminate this Lease or dispossess Tenant or other action on account of
default UNDER SECTION 10 OF THE LEASE without giving Tenant notice and a
reasonable opportunity to cure the alleged event of default (minimum of at least
five days after receipt of written notice of the event Landlord considers a
default with respect to payments and not less than 30 days after receipt of
written notice as to other performance obligations, or to commence correction
within such 30 days AS PROVIDED IN THE LAST SENTENCE OF SECTION 10(A)). Tenant
will not be in default for any bankruptcy or insolvency event of default (FOR
MATTERS LISTED IN SECTION 10(B)) unless Tenant is unable to obtain a dismissal
or stay of proceeding within 45 days after becoming aware of the event.
RIDER 11 REMEDIES FOR DEFAULT. Each party will use reasonable
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efforts to mitigate damages for any default by the other party.
THE DISCOUNT RATE UNDER SECTION 11(C) WILL BE NINE PERCENT (9%)
PER ANNUM.
RIDER 11(A) AND (D) NOTICE. Landlord will not terminate the
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Lease or make a payment or perform an obligation on Tenant's behalf without
Tenant having received five days' written notice of Landlord's intent to do so
(which notice may be given in or separately from the notices under SECTION 10 OF
THE LEASE).
RIDER 17 INTEREST AND LATE CHARGES. The grace period for
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interest and late charges IN BOTH SENTENCES OF SECTION 17 is
modified to be: "five days after receipt of written notice of
nonpayment when due."
RIDER 18(C) ENTRY. Any entry by Landlord will be made after
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reasonable advance notice (minimum ten (10) days' notice, except for emergency
repairs). Such ten (10) days' written notice shall not be required with respect
to emergency repairs required to protect persons, property or other safety of
tenants, but in the event of such emergency repairs, Landlord will attempt to
contact Tenant as soon as possible and keep Tenant advised as to the action
being taken. The reasonable costs of work performed to correct a default shall
be promptly
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reimbursed by Tenant after submission to it of invoice(s) and information on the
work performed and costs incurred by Landlord as Tenant may reasonably require.
If such reimbursement is not made within twenty (20) days after receipt of such
invoice(s) and information, the costs incurred by Landlord will bear interest as
provided in the Lease.
RIDER 20 GENERAL PROVISIONS. The following General Provisions
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are added to the Lease:
20.1 DECISION MAKING BY PARTIES. Wherever a party's consent,
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approval, decision or determination is required under this Lease, such consent
or approval shall be given or decision or determination shall be made in writing
and in a commercially reasonable manner. No change in rent, the rights of the
paries or the economic terms of this Lease shall be required as a condition to
granting of consent. Any denial of consent will include in reasonable detail the
reason for denial or aspect of the request that was not acceptable.
20.2 NOTICES. Notices may be given by utilization of the
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method(s) referenced in the Lease or by facsimile or other telecommunication
device capable of transmitting or creating a written record or personally. Each
party shall give notice to the other of its address for notice by written notice
to the other. Unless Tenant designates another address for notice by notice
given pursuant to this Section, notices to Tenant should be sent to the
following address:
Xxxx Xxxxx, Inc.
0000 X.X. 00xx Xxxxxx
X.X. Xxx 00000
Xxxxxxxx, Xxxxxx 00000-0000
Attn: Senior Vice President, Corporate Facilities
Facsimile No.: (000) 000-0000
with a copy to:
Xxxx Xxxxx, Inc.
0000 X.X. 00xx Xxxxxx
X.X. Xxx 00000
Xxxxxxxx, Xxxxxx 00000-0000
Attn: Corporate Legal Department
Facsimile No.: (000) 000-0000
For the purpose of this Lease, the term "receipt" shall mean the earlier of any
of the following: (i) the date of delivery of the notice or other document to
the address specified pursuant to this Section as shown on the return receipt or
by the records of the courier, (ii) the date of actual receipt of the notice or
other document by the office of the person or entity specified pursuant to this
Section, or (iii) in the case of refusal to accept delivery or inability to
deliver the notice or other document, the earlier of (A) the date of the
attempted delivery or refusal to accept delivery, (B) the date of the postmark
on the return receipt, or (C) the date of receipt of notice of refusal or notice
of nondelivery by the sending party.
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Notices are not to be delivered to the Premises and are not
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effective if delivered there (except that any notice required by law to be
posted at or delivered to the Premises will be effective for purposes of
satisfying the requirement of the law).
20.3 EXCULPATION; INDEMNITY. No exculpation of Landlord or
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indemnity by Tenant will be construed to make Tenant responsible for claims
arising from the gross negligence or willful misconduct of Landlord, its agents,
independent contractors or employees. Landlord shall indemnify Tenant from any
loss, liability, claim of liability cost and expense (including reasonable
attorneys' fees and litigation expenses), arising out of or related to any
violation of law or gross negligence or willful misconduct of Landlord, its
agents, independent contractors or employees.
20.4 PRIOR AGREEMENTS. This Lease (including all exhibits,
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schedules and other attachments hereto, incorporated herein by reference)
contains all of the agreements of the parties hereto with respect to any such
matters which shall be effective for any purpose. No provisions of this Lease
may be amended or added to except by an agreement in writing signed by the
parties hereto or their respective successors in interest. This Lease shall not
be effective or binding on any party until fully executed by both parties
hereto.
20.5 AUTHORITY. If Landlord or Tenant is a corporation or other
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entity, each individual executing this Lease on behalf of such corporation or
entity represents and warrants that he is duly authorized to execute and deliver
this Lease on behalf of such corporation or entity, in accordance with its
bylaws or organizational documents, and that this Lease is binding upon such
corporation or entity.
IN WITNESS WHEREOF, the parties have executed this Rider to Lease as
of the date first above written.
LANDLORD: REAL ESTATE PROPERTIES LIMITED
PARTNERSHIP
By XXXXX X. ROM
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TENANT: XXXX XXXXX, INC.
By XXXXX X. XXXXXX
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SCHEDULE #1
STANDARD EXCLUSIONS
Notwithstanding anything contained in this Lease, no expenses incurred for the
following shall be included in any common area or operating expenses or other
expenses chargeable to Tenant under this Lease:
1. Rent on any ground lease;
2. Leasing commissions, attorneys' fees, costs and disbursements, and
other expenses (including advertising) incurred in connection with
leasing, renovating, or improving space for tenants or other occupants
or prospective tenants or occupants of the Shopping Center;
3. Costs (including permit, license, and inspection fees)
incurred in renovating or otherwise improving or
decorating, painting or redecorating space for tenants
or other occupants or vacant space;
4. Landlord's costs of any services sold to tenants or other occupants
for which Landlord is entitled to be reimbursed by such tenants or
other occupants as an additional charge or rental over and above the
basic rent and escalations payable under the lease with such tenant or
other occupant, and costs associating with valet parking (including
wages and other expenses);
5. Costs incurred in connection with the original construction or
expansion of the Shopping Center, including any interest or payments
on any financing, or the cost of correcting defects in the initial
design or construction of the Shopping Center or expansion;
6. Any depreciation and amortization of the Building of
which the Premises are a part or other buildings and
improvements within the Shopping Center;
7. Expenses in connection with services or other benefits
of a type not available to Tenant but which are
provided to other tenant or occupant;
8. Damages recovered by any tenant due to violation by
Landlord of any of the terms and conditions of any
lease or any other agreement relating to the Shopping
Center, or any fine or penalty relating to any
violation of law or contract by Landlord or any other
tenant or occupant of the Shopping Center, or
Landlord's expenses incurred in connection with
responding to or contesting the same;
9. Interest on debt or amortization payments on any
mortgages or deeds of trust or any other debt for
borrowed or advanced money, except as expressly
permitted herein;
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10. Any compensation paid to clerks, attendants, or other
persons in commercial concessions operated by Landlord;
11. Any cost related to the operation of Landlord as an entity rather than
the operating of the Shopping Center, including the cost and formation
of the entity, internal accounting, legal matters, preparation of tax
returns, etc.;
12. Repairs occasioned by fires, windstorm, or other casualty, to the
extent such repairs are covered by insurance or would have been
covered by a standard "all risk" form of casualty insurance policy;
13. Repairs and maintenance of any pylon or other sign
maintained for tenants which does not include any of
Tenant's signage;
14. All costs for which Landlord has received reimbursement or is entitled
to receive reimbursement pursuant to any law or agreement other than
this Section (including, without limitation insurance and condemnation
proceeds), except by way of basic rents or escalation rents;
15. Manager's or agent's fees in excess of FIVE PERCENT (5%) of the other
amounts included in the common area costs in which Tenant is required
to share (not including any cost of insurance, any taxes or assessment
on real or personal property or major capital expenditures);
16. Costs allocable to properties other than the Shopping
Center;
17. Legal fees in connection with the sale or lease of all
or any portion of the Shopping Center, or any interest
therein, or any financing or refinancing related to the
Shopping Center, or in connection with any dispute with
any other tenant(s) or occupant(s) of the Shopping
Center or third parties claiming an interest adverse
to Landlord in the Shopping Center or any portion
thereof, and legal fees and auditing fees, other than
legal and auditing fees reasonably incurred in
connection with the maintenance and operation of all
or any portion of the Shopping Center or in connection
with the preparation of the statements required
pursuant to additional rent or lease escalation
provisions contained in leases of space in the Shopping
Center;
18. Executives' salaries above the grade of building
manager; and
19. Common area or operating expenses (such as parking lot
repaving) properly chargeable to capital accounts shall
be amortized over the useful life of the applicable
item(s) in accordance with GAAP. In no event shall
Tenant's share of expenses during each succeeding year
of the Lease term, increase more than five percent (5%)
per year over the amount charged by Landlord during
the previous year.
As used herein, the term "Shopping Center" is replaced by the
term "Facility."
