ASSIGNMENT AND MODIFICATION OF LEASE
AGREEMENT FOR PREPAID RENT AND DELIVERY OF
PREMISES UNDER ASSIGNMENT OF LEASE FOR
PREMISES LOCATED AT PACTRUST BUSINESS CENTER
We hereby agree to the following:
1. Agritope, Inc., shall post security in the form of cash to assure
payment of rent under the above-referenced Lease during the period
which American Show Management, Inc., ("ASM") remains liable to Pacific
Realty Associates, LP. An amount of $113,135.00 shall be placed in an
escrow account to be released beginning April 1, 1998. Each month
thereafter, $10,285.00 shall be released from escrow for payment of the
base rent. Agritope, Inc., shall be entitled to receive all interest to
accrue on the escrow fund and shall be responsible for all escrow fees.
Upon Signature of this Lease, Agritope, Inc., shall provide March 1998,
rent of $10,285.00 as well as an amount equal to $11,210.00 as a
security deposit to be held by ASM, Inc., for the last month of the
lease term. Upon termination of the lease guarantee by ASM, Inc., the
security deposit will be forwarded to Pacific Realty Associates, LP for
replacement of its security deposit.
2. ASM, Inc., agrees to deliver possession of the Premises on or before
January 15, 1998. If delivery is delayed past this date, ASM, Inc.,
will reimburse Agritope, Inc., in an amount equal to $338.14 per day
for each day past January 15, 1998, that possession is delayed, unless
delay is caused by a force majeure. Total reimbursement shall not
exceed $15,210.00.
AGREED AND ACCEPTED: AGREED AND ACCEPTED:
/s/ [illegible] /s/ Xxxxxxx X. Xxxxxx
American Show Management, Inc. Agritope, Inc.
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ASSIGNMENT AND MODIFICATION OF LEASE
DATED: NOVEMBER 7, 1997
BETWEEN: PACIFIC REALTY ASSOCIATES, L.P., LANDLORD
A DELAWARE LIMITED PARTNERSHIP
AND: AMERICAN SHOW MANAGEMENT, INC.,
AN OREGON CORPORATION ASSIGNOR
AND: AGRITOPE, INC.,
AN OREGON CORPORATION ASSIGNEE
Pacific Realty Associates, L.P., a Delaware limited
partnership, as Landlord and Assignor, as Tenant, entered into a written lease
dated October 4, 1995, covering approximately 11,059 square feet of office and
warehouse space located in Building C, PacTrust Business Center, 00000 X.X.
Xxxxx Xxxxxx Xxxxx Xxxx, Xxxxxxxx, Xxxxxx 00000 (hereinafter referred to as "the
Premises"). By Lease Amendment dated June 3, 1996, the Lease was amended. Such
documents are hereinafter jointly referred to as "the Lease." The Lease expires
May 31, 2001.
Assignor wishes to assign unto Assignee all of Assignor's
interest under the Lease.
NOW, THEREFORE, the parties agree as follows:
1. Assignor hereby assigns unto Assignee all of Assignor's interest
under the Lease effective as of March 1, 1998. Assignee accepts such assignment
and agrees to perform all obligations of Tenant accruing after such date,
including payment of rent and all other charges imposed upon Tenant by the
Lease.
2. Assignor shall be released from all its responsibilities for
performance of all of Assignor's obligations under the Lease as of February 28,
1999, provided that:
2.1. Upon execution of this Assignment and Modification of
Lease Agreement, Assignee's market capitalization is greater than or equal to
Twenty Million and No/100 dollars ($20,000,000.00); and
2.2. Assignee is not then in default and has not been in
default under the Lease prior to February 28, 1999.
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3. The Use of the Premises as defined in Paragraph 1(a) of the Lease
shall be modified to read "Tenant shall use the Premises only for the purpose of
conducting the following business: General office and laboratory space for an
agricultural biotechnology company. If such use is prevented by any law or
governmental regulation, Tenant may use the Premises for other reasonable uses."
4. Provided that, as of February 28, 1999, Assignee is not in default
under the Lease, the Lease shall be extended for an additional 22 months
commencing June 1, 2001 and continuing through February 28, 2003.
5. Base rent shall be according to the following schedule:
-----------------------------------------------------------------------------
BASE RENT
PERIOD PER MONTH
-----------------------------------------------------------------------------
March 1, 1998 through May 31, 2001 $10,285.00
-----------------------------------------------------------------------------
June 1, 2001 through February 28, 2003 $11,210.00
-----------------------------------------------------------------------------
6. Effective March 1, 1998 the Lease shall become a "triple net" lease,
therefore:
6.1. Utility Charges: Maintenance.
6.1.1. Tenant shall pay when due all charges for
electricity, natural gas, water, garbage collection, janitorial service, sewer,
and all other utilities of any kind furnished to the Premises during the lease
term. If charges are not separately metered or stated, Landlord shall apportion
the utility charges on an equitable basis. Landlord shall have no liability
resulting from any interruption of utility services caused by fire or other
casualty, strike, riot, vandalism, the making of necessary repairs or
improvements, or any other cause beyond Landlord's reasonable control. Tenant
shall control the temperature in the Premises to prevent freezing of any
sprinkler system.
6.1.2. Landlord shall repair and maintain the roof,
gutters, downspouts, exterior walls, building structure, foundation, exterior
paved areas, and curbs of the Premises in good condition. Except for such
obligations of Landlord, Tenant shall keep the Premises neatly maintained and in
good order and repair. Tenant's responsibility shall include maintenance and
repair of the electrical system, plumbing, drainpipes to sewers,
air-conditioning and heating systems, overhead and personnel doors, and the
replacement of all broken or cracked glass with glass of the same quality.
Tenant shall refrain from any discharge that will damage the septic tank or
sewers serving the Premises.
6.1.3. If the Premises have a separate entrance,
Tenant shall keep the sidewalks abutting the Premises or the separate entrance
free and clear of snow, ice, debris, and obstructions of every kind.
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6.2. Taxes, Assessments, and Operating Expenses.
6.2.1. In conjunction with monthly rent payments,
Tenant shall each month pay a sum representing Tenant's proportionate share of
real property taxes and operating expenses for the Premises. Such amount shall
annually be estimated by Landlord in good faith to reflect actual or anticipated
costs. Upon termination of the Lease or at periodic intervals during the term
hereof, Landlord shall compute its actual costs for such expenses during such
period. Any overpayment by Tenant shall be credited to Tenant, and any
deficiency shall be paid by Tenant within fifteen (15) days after receipt of
Landlord's statement. Landlord's records of expenses for taxes and operating
expenses may be inspected by Tenant at reasonable times and intervals.
6.2.2. Tenant's proportionate share of real property
taxes shall mean that percentage of the total assessment affecting the Premises
which is me same as the percentage which the rentable area of the Premises bears
to the total rentable area of all buildings covered by the tax statement.
Tenant's proportionate share of operating expenses for the Building shall be
computed by dividing the rentable area of the Premises by the total rentable
area of the Building. If in Landlord's reasonable judgment either of these
methods of allocation results in an inappropriate allocation to Tenant, Landlord
shall select some other reasonable method of determining Tenant's proportionate
share.
6.2.3. Real property taxes charged to Tenant
hereunder shall include all general real property taxes assessed against the
Premises or payable during the lease term, installment payments on Bancrofted
special assessments, and any rent tax, tax on Landlord's interest under the
Lease, or any tax in lieu of the foregoing, whether or not any such tax is now
in effect. Tenant shall not, however, be obligated to pay any tax based upon
Landlord's net income.
6.2.4. Operating expenses charged to Tenant hereunder
shall include all usual and necessary costs of operating and maintaining the
Premises, Building, and any surrounding common areas including, but not limited
to, the cost of all utilities or services not paid directly by Tenant, property
insurance, property management, maintenance and repair of landscaping, parking
areas, and any other common facilities. Operating expenses shall not include
roof replacement or correction of structural deficiencies of the Building.
7. The following environmental language will be in effect effective
March 1, 1998 and continuing though the extended term:
7.1. Definitions. The term "Environmental Law" shall mean any
federal, state or local statute, regulation or ordinance or any judicial or
other governmental order pertaining to the protection of health, safety or the
environment. The term "Hazardous Substance" shall mean any hazardous, toxic,
infectious or radioactive substance, waste and material as defined or listed by
any Environmental Law and shall include, without limitation, petroleum oil and
its fractions.
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7.2. Use of Hazardous Substances. Tenant shall not cause or
permit any Hazardous Substance to be spilled, leaked, disposed of or otherwise
released on or under the Premises. Tenant may use and sell on the Premises only
those Hazardous Substances typically used and sold in the prudent and safe
operation of the business permitted by Paragraph 1 of the Lease. Tenant may
store such Hazardous Substances on the Premises, but only in quantities
necessary to satisfy Tenant's reasonably anticipated needs. Tenant shall comply
with all Environmental Laws and exercise the highest degree of care in the use,
handling and storage of Hazardous Substances and shall take all practicable
measures to minimize the quantity and toxicity of Hazardous Substances used,
handled or stored on the Premises.
7.3. Notices. Tenant shall immediately notify Landlord upon
becoming aware of the following: (a) any spill, leak, disposal or other release
of a Hazardous Substance on, under or adjacent to the Premises; (b) any notice
or communication from a governmental agency or any other person relating to any
Hazardous Substance on, under or adjacent to the Premises; or (c) any violation
of any Environmental Law with respect to the Premises or Tenant's activities on
or in connection with the Premises.
7.4. Spills and Releases. In the event of a spill, leak,
disposal or other release of a Hazardous Substance on or under the Premises
caused by any party other than Landlord or any of Landlord's contractors, agents
or employees or invitees, or the suspicion or threat of the same, Tenant shall
(i) immediately undertake all emergency response necessary to contain, cleanup
and remove the released Hazardous Substance, (ii) promptly undertake all
investigatory, remedial, removal and other response action necessary or
appropriate to ensure that any Hazardous Substances contamination is eliminated
to Landlord's reasonable satisfaction, and (iii) provide Landlord copies of all
correspondence with any governmental agency regarding the release (or threatened
or suspected release) or the response action, a detailed report documenting all
such response action, and a certification that any contamination has been
eliminated. All such response action shall be performed, all such reports shall
be prepared and all such certifications shall be made by an environmental
consultant reasonably acceptable to Landlord.
7.5. Condition Upon Termination. Upon expiration of the Lease
or sooner termination of the Lease for any reason, Tenant shall remove all
Hazardous Substances and facilities used for the storage or handling of
Hazardous Substances from the Premises and restore the affected areas by
repairing any damage caused by the installation or removal of the facilities.
Following such removal, Tenant shall have a qualified engineer certify in
writing to Landlord that all such removal is complete.
7.6. Assignment and Subletting. Notwithstanding the provisions
of Paragraph 9 of the Lease, it shall not be unreasonable for Landlord to
withhold its consent to any assignment, sublease or other transfer of the
Tenant's interest in the Lease if a proposed transferee's anticipated use of the
Premises involves the generation, storage, use, sale, treatment, release or
disposal of any Hazardous Substance.
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7.7. Indemnity.
7.7.1 By Tenant. Tenant shall indemnify, defend and
hold harmless Landlord, its employees and agents, any persons holding a security
interest in the Premises, and the respective successors and assigns of each of
them from and against any and all claims, demands, liabilities, damages, fines,
losses, costs (including without limitation the cost of any investigation,
remedial, removal or other response action required by Environmental Law) and
expenses (including without limitation attorneys' fees and expert fees in
connection with any trial, appeal, petition for review or administrative
proceeding) arising out of or in any way relating to the use, treatment,
storage, generation, transport, release, leak, spill, disposal or other handling
of Hazardous Substances on the Premises by Tenant or any of its contractors,
agents or employees or invitees. Tenant's obligations under under this paragraph
shall survive the expiration or termination of the Lease for any reason.
Landlord's rights under this paragraph are in addition to and not in lieu of any
other rights or remedies to which Landlord may be entitled under this agreement
or otherwise.
7.7.2. By Landlord. Landlord shall indemnify, defend
and hold harmless Tenant and its employees and agents and the respective
successors and assigns of each of them from and against any and all claims,
demands, liabilities, damages, fines, losses, costs (including without
limitation the cost of any investigation, remedial, removal or other response
action required by Environmental Law) and expenses (including without limitation
attorneys' fees and expert fees in connection with any trial, appeal, petition
for review or administrative proceeding) arising out of or in any way relating
to the actual or alleged use, treatment, storage, generation, transport,
release, leak, spill, disposal or other handling of Hazardous Substances on the
Premises by Landlord, or any of its contractors, agents or employees or by
Landlord's previous tenants of the Premises. Landlord's obligations under this
paragraph shall survive the expiration or termination of the Lease for any
reason. Tenant's rights under this paragraph are in addition to and not in lieu
of any other rights or remedies to which Tenant may be entitled under this
Agreement or otherwise.
8. Subject to the provisions of Paragraph 7, above, Tenant shall be
entitled to use and store those substances listed on the attached Exhibit A.
Tenant shall not store substances in amounts in excess of those listed on
Exhibit A without first obtaining Landlord's approval and the approval of any
governmental agency with such authority.
9. The cost of all tenant improvements, which must be mutually
acceptable to all parties, shall be at Assignor's and/or Assignee's sole cost
and expense.
10. Indemnification.
10.1. Indemnity by Assignor. Assignor hereby agrees to
indemnify, defend, protect, and hold harmless Assignee from and against any and
all losses, liabilities, claims, costs, and expenses (including reasonably
attorney fees) arising out of or in any way related to Assignor's failure to
perform its obligations under the Lease or this Assignment or arising
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out of use of the Premises by Assignor or its agents, employees, contractors,
customers, or invitees before the effective date of this Assignment.
10.2. Indemnity by Assignee. Assignee hereby agrees to
indemnify, defend, protect, and hold harmless Assignor from and against any and
all losses, liabilities, claims, costs, and expenses (including reasonably
attorney fees) arising out of or in any way related to Assignee's failure to
perform its obligations under the Lease or this Assignment or arising out of use
of the Premises by Assignee or its agents, employees, contractors, customers, or
invitees before the effective date of this Assignment.
11. Status of Lease; Property Removal.
11.1. Status of Lease. Assignor represents and warrants:
11.1.1. That the Lease is in full force and effect in
accordance with its terms;
11.1.2. That the Lease has not been amended or
modified except as stated in this Assignment;
11.1.3. That Assignor is not in default of the Lease;
and
11.1.4. That as of the execution of this Agreement,
Assignor is not delinquent in the payment of any rental under the Lease.
11.2 Property Removal. Assignor hereby agrees not to remove
any improvements, alterations, or fixtures from the Premises. Assignor agrees to
remove all of its personal property from the Premises prior to March 1, 1998
12. This agreement shall be contingent upon and shall only become
effective when the separation of Assignee from its current sole shareholder,
Epitope, Inc., has bee completed by distribution to the existing shareholders of
Epitope, Inc., all of the outstanding stock of Assignee. In the event such
separation has not occurred within ------- (---) days of the date of this
Assignment, then this Assignment shall become null and void.
13. Except as expressly modified hereby, all terms of the Lease shall
remain in full force and effect and shall continue through the extended term.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first written above.
LANDLORD:
PACIFIC REALTY ASSOCIATES, L.P.,
a Delaware limited partnership
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By: PacTrust Realty, Inc.
a Delaware corporation,
its General Partner
Date: Nov 14 , 1997 By: /s/ Xxx X. Xxxxxx
Xxx X. Xxxxxx
Marketing Director
ASSIGNOR:
AMERICAN SHOW MANAGEMENT, INC.,
an Oregon corporation
Date: Nov 13 , 1997 By: /s/ [illegible]
Name: Xxxxxxx X. [illegible]
Title: President
ASSIGNEE:
AGRITOPE, INC.,
an Oregon corporation
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: Exec. VP
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: President, CEO
Address for Legal Notices/Invoices to
Assignee:
---------------------------------------
---------------------------------------
---------------------------------------
(Note: Unless a different address is
indicated above, notices to Assignee
will be addressed to the Premises.)
Assignee Employer Identification
Number:
---------------------------------------
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LEASE AMENDMENT
DATED: JUNE 3, 1996
BETWEEN: PACIFIC REALTY ASSOCIATES, L.P.,
A DELAWARE LIMITED PARTNERSHIP LANDLORD
AND: AMERICAN SHOW MANAGEMENT,INC.,
AN OREGON CORPORATION TENANT
By written lease dated October 4, 1995, Tenant leased from Landlord
approximately 11,059 square feet of space in Building C, PacTrust Business
Center, 00000 X.X. Xxxxx Xxxxxx Xxxxx Xxxx, Xxxxxxxx, Xxxxxx 00000 (hereinafter
referred to as the "Premises"). Such document is hereinafter referred to as the
"Lease."
Tenant's occupancy of the Premises was delayed until January 1, 1996.
NOW, THEREFORE, the parties agree as follows:
1. The improvements required to be constructed by Landlord under the Lease
have been substantially completed and are accepted by Tenant.
2. The Commencement Date of the Lease is January 1, 1996.
3. The Termination Date of the Lease is May 31, 2001.
4. Base rent shall be according to the revised schedule:
Base Rent
Period Per Month
------------------------------------------ ---------
January 1, 1996 through March 31, 1996 $ 0.00
April 1, 1996 through December 31, 1997 $ 9,900.00
January 1, 1998 through February 28, 1998 $ 0.00
March 1, 1998 through May 31, 2001 $ 10,200.00
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5. Except as expressly modified hereby, all terms of the Lease shall
remain in full force and effect and shall continue through the termination date.
IN WITNESS WHEREOF, the parties have executed this agreement
as of the day and year first written above.
PACIFIC REALTY ASSOCIATES, LP., AMERICAN SHOW MANAGEMENT,
A DELAWARE LIMITED PARTNERSHIP INC.,
AN OREGON CORPORATION
BY PACTRUST REALTY, INC., A DELAWARE
CORPORATION, ITS GENERAL PARTNER
By /s/ Xxx X. Xxxxxx By [illegible]
Xxx X. Xxxxxx Name Xxxxxxx X. [illegible]
Marketing Director Title President & COO
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LEASE
DATED: OCTOBER 4, 1995
BETWEEN: PACIFIC REALTY ASSOCIATES, L.P.,
A DELAWARE LIMITED PARTNERSHIP LANDLORD
AND: AMERICAN SHOW MANAGEMENT, INC.,
AN OREGON CORPORATION TENANT
Tenant wishes to lease from Landlord the following described
property, hereinafter referred to as "the Premises":
Approximately 11,058 square feet of space located in Building
C, PacTrust Business Center, 00000 X.X. Xxxxx Xxxxxx Xxxxx Xxxx, Xxxxxxxx,
Xxxxxx 00000 and as further described on the attached Exhibits A, B and C.
If the Premises consist of a portion but not all of a
building, the building housing the Premises is hereinafter referred to as "the
Building."
Landlord leases the Premises to Tenant for a term of 65.5
months commencing December 15, 1995 and continuing through May 31, 2001. No base
rent shall be due for the first three (3) months and the 25th and 26th months of
the lease term. Base rent shall be according to the following schedule:
Base Rent
Period Per Month
-------------------------------------------- ---------
December 15, 1995 through March 14, 1996 $ 0.00
March 15 1996 through December 31, 1997 $ 9,900.00
January 1, 1998 through February 28, 1998 $ 0.00
March 1, 1998 through May 31, 2001 $10,200.00
If Landlord consents, Tenant may occupy the Premises prior to such commencement
date on a rent-free basis and upon compliance with all terms of this lease. Rent
for the third month of the lease term has been paid upon execution of this
lease.
Delivery of possession shall occur when the Premises are
occupied by Tenant or are ready to be occupied by Tenant with all work to be
performed by Landlord substantially completed. No notice shall be required from
Landlord if the Premises are ready on the date set for commencement of the term
or on the first business day thereafter. If Landlord is unable to deliver
possession of the Premises to Tenant because of strikes, acts of
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God, or any other cause beyond Landlord's control, then Tenant may take
possession when Landlord notifies Tenant that the Premises are ready for
possession, and the term of this lease shall commence on the first day of the
first month following such date and continue for the specified number of months
thereafter, notwithstanding the commencement and termination dates stated above.
Tenant shall owe no rent until the Premises are ready for possession. Landlord
shall have no liability for such delays in delivery of possession, and neither
party shall have the right to terminate except that Landlord may cancel this
lease without liability if permission to construct, use, or furnish necessary
utilities to the Premises is denied or revoked by any governmental agency or
public utility with such authority.
This lease is subject to the following additional terms to
which the parties agree:
1. USE OF THE PREMISES.
(a) Tenant shall use the Premises only for the purpose of
conducting the following business:
General office for trade show management.
If such use is prevented by any law or governmental regulation, Tenant may use
the Premises for other reasonable uses.
(b) In connection with its use, Tenant shall at its expense
comply with all applicable laws, ordinances, and regulations of any public
authority, including those requiring alteration of the Premises because of
Tenant's specific use; shall create no nuisance nor allow any objectionable
liquid, odor, or noise to be emitted from the Premises; shall store no gasoline
or other highly combustible materials on the Premises which would violate any
applicable fire code or regulation nor conduct any operation that will increase
Landlord's fire insurance rates for the Premises; and shall not overload the
floors or electrical circuits of the Premises. Landlord shall have the right to
approve the installation of any power-driven machinery by Tenant and may select
a qualified electrician whose opinion will control regarding electrical circuits
and a qualified engineer or architect whose opinion will control regarding floor
loads. Allowable ground floor load shall be 300 pounds per square foot.
(c) Tenant may erect a sign stating its name, business, and
product after first securing Landlord's written approval of the size, color,
design, wording, and location, and all necessary governmental approvals. No
signs shall be painted on the Building or exceed the height of the Building. All
signs installed by Tenant shall be removed upon termination of this lease with
the sign location restored to its former state.
(d) Tenant shall make no alterations, additions, or
improvements to the Premises or change the color of the exterior without
Landlord's prior written consent and without a valid building permit issued by
the appropriate governmental agency. Upon termination of this lease, any such
alterations, additions, or improvements (including without
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limitation all electrical, lighting, plumbing, heating and air-conditioning
equipment, doors, windows, partitions, drapery, carpeting, shelving, counters,
and physically attached fixtures) shall at once become part of the realty and
belong to Landlord unless the terms of the applicable consent provide otherwise,
or Landlord requests that part or all of the additions, alterations, or
improvements be removed. In such case, Tenant shall at its sole cost and expense
promptly remove the specified additions, alterations, or improvements and repair
and restore the Premises to its original condition.
2. SECURITY DEPOSIT.
Tenant has deposited with Landlord the sum of $10,200.00,
hereinafter referred to as "the Security Deposit," to secure the faithful
performance by Tenant of each term, covenant, and condition of this lease. If
Tenant shall at any time fail to make any payment or fail to keep or perform any
term, covenant, and condition on its part to be made or performed or kept under
this lease. Landlord may, but shall not be obligated to and without waiving or
releasing Tenant from any obligation under this lease, use, apply or retain the
whole or any part of the Security Deposit (i) to the extent of any sum due to
Landlord; or (ii) to make any required payment on Tenant's behalf; or (iii) to
compensate Landlord for any loss, damage, attorneys' fees, or expense sustained
by Landlord due to Tenant's default. In such event, Tenant shall, within 5 days
of written demand by Landlord, remit to Landlord sufficient funds to restore the
Security Deposit to its original sum; Tenant's failure to do so shall be a
material breach of this lease. Landlord shall not be required to keep the
Security Deposit separate from its general funds, and Tenant shall not be
entitled to interest on such deposit. Should Tenant comply with all of the
terms, covenants, and conditions of this lease and at the end of the term of
this lease leave the Premises in the condition required by this lease, then the
Security Deposit, less any sums owing to Landlord, shall be returned to Tenant
(or, at Landlord's option, to the last assignee of Tenant's interests hereunder)
within 30 days after the termination of this lease and vacancy of the Premises
by Tenant.
3. UTILITY CHARGES; MAINTENANCE.
(a) Tenant shall pay when due all charges for electricity,
natural gas, garbage collection, janitorial service, and all other utilities of
any kind furnished to the Premises during the lease term. If charges are not
separately metered or stated, Landlord shall apportion the utility charges on an
equitable basis. Landlord shall have no liability resulting from any
interruption of utility services caused by fire or other casualty, strike, riot,
vandalism, the making of necessary repairs or improvements, or any other cause
beyond Landlord's reasonable control. Tenant shall control the temperature in
the Premises to prevent freezing of any sprinkler system.
(b) Landlord shall repair and maintain the roof, gutters,
downspouts, exterior walls, building structure, foundation, exterior paved
areas, and curbs of the Premises in good condition. Except for such obligations
of Landlord, Tenant shall keep the Premises neatly maintained and in good order
and repair. Tenant's responsibility shall include maintenance and repair of the
exposed electrical system, above-slab plumbing, drainpipes to
- 3 -
sewers, air-conditioning and heating systems, overhead and personnel doors, and
the replacement of all broken or cracked glass with glass of the same quality.
Tenant shall refrain from any discharge that will damage the septic tank or
sewers serving the Premises.
(c) If the Premises have a separate entrance, Tenant shall
keep the sidewalks abutting the Premises or the separate entrance free and clear
of snow, ice, debris, and obstructions of every kind.
4. TAXES AND ASSESSMENTS.
(a) Landlord shall pay as due all taxes and assessments levied
against the Premises during the lease term. Tenant shall reimburse Landlord for
any increase in real property taxes and assessments on the Premises over those
assessed for the fiscal year January through December, 1996, or the first fiscal
year during which the Premises are assessed as a completed structure, whichever
is later. If the tax statement covers property in addition to the Premises, then
Tenant shall pay only that portion of the increase which is in proportion to the
area of the Premises compared to the area of all property covered by the tax
statement. Landlord shall annually furnish Tenant with a statement showing its
share of such tax increases, and Tenant shall pay the entire amount within 10
days.
(b) Tenant shall pay all personal property taxes assessed
against its property or trade fixtures on the Premises.
(c) If during the lease term a tax is assessed upon the
Landlord's interest under this lease which is in lieu of the ad valorem real
property tax, then to the extent permitted by law, Tenant shall pay a portion of
the new tax equivalent to the portion of the ad valorem taxes which it was
paying prior to the imposition of such tax. Tenant, however, shall have no
obligation to pay any income, profits, or franchise tax levied upon the net
income derived by Landlord from this lease.
5. PARKING AND STORAGE AREAS.
(a) Tenant, its employees, and customers shall have the
exclusive right to use any private parking spaces immediately adjacent to the
Premises. Landlord shall xxxx six (6) spaces for Tenant's visitors. Tenant shall
control the use of such parking spaces so that there will be no unreasonable
intereference with the normal traffic flow, and shall permit no parking on any
landscaped or unpaved surface. Under no circumstances shall trucks serving the
Premises be permitted to block streets.
(b) Tenant shall not store any materials, supplies, or
equipment outside in any unapproved or unscreened area. If Tenant erects any
visual barriers for storage areas, Landlord shall have the right to approve the
design and location. Trash and garbage receptacles shall be kept covered at all
times.
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6. LIABILITY.
(a) Tenant shall not allow any liens to attach to the Premises
as a result of its activities. Tenant shall indemnify and defend Landlord from
any claim, liability, damage, or loss arising out of any activity on the
Premises by Tenant, its agents, or invitees or resulting from Tenant's failure
to comply with any term of this lease.
(b) Tenant shall carry general liability insurance on an
occurrence basis with combined single limits of not less than $1,000,000. Such
insurance shall be provided by an insurance carrier reasonably acceptable to
Landlord and shall be evidenced by a certificate delivered to Landlord stating
that the coverage will not be canceled or materially altered without 10 days'
advance written notice to Landlord. Landlord shall be named as an additional
insured on such policy.
7. PROPERTY DAMAGE; SUBROGATION WAIVER.
(a) If fire or other casualty causes damage to the Building or
the Premises in an amount exceeding 30 percent of the full
construction-replacement cost of the Building or Premises, respectively,
Landlord may elect to terminate this lease as of the date of the damage by
notice in writing to Tenant within 30 days after such date. Otherwise, Landlord
shall promptly repair the damage and restore the Premises to their former
condition as soon as practicable. Rent shall be reduced during the period to the
extent the Premises are not reasonably usable for the use permitted by this
lease because of such damage and required repairs.
(b) Landlord shall be responsible for insuring the Building,
and Tenant shall be responsible for insuring its personal property and trade
fixtures located on the Premises.
(c) Neither party shall be liable to the other for any loss or
damage caused by water damage, sprinkler leakage, or any of the risks covered by
a standard fire insurance policy with extended coverage and sprinkler leakage
endorsements, and there shall be no subrogated claim by one party's insurance
carrier against the other party arising out of any such loss.
8. CONDEMNATION.
If a condemning authority takes the entire Premises or a
portion sufficient to render the remainder unsuitable for Tenant's use, then
either party may elect to terminate this lease effective on the date that title
passes to the condemning authority. Otherwise, Landlord shall proceed as soon as
practicable to restore the remaining Premises to a condition comparable to that
existing at the time of the taking. Rent shall be abated during the period of
restoration to the extent the Premises are not reasonably usable by Tenant, and
rent shall be reduced for the remainder of the term in an amount equal to the
reduction in rental value of the Premises caused by the taking. All condemnation
proceeds shall belong to Landlord.
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9. ASSIGNMENT AND SUBLETTING.
(a) Tenant shall not assign its interest under this lease nor
sublet the Premises without first obtaining Landlord's consent in writing. This
provision shall apply to all transfers by operation of law or through 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 one assignment or subletting shall be a consent to any further assignment or
subletting.
(b) Subject to the above limitations on transfer of Tenant's
interest, this lease shall bind and inure to the benefit of the parties, their
respective heirs, successors, and assigns.
10. 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 connection
with such period and thereafter proceeds in good faith and with reasonable
diligence to effect compliance as soon as possible.
(b) Tenant's insolvency; assignment for the benefit of its
creditors; Tenant's voluntary petition in bankruptcy or adjudication as
bankrupt, or the appointment of a receiver for Tenant's properties.
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[Exhibit A - Map of Premises]
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[Exhibit D - Map of Space in Building]
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11. REMEDIES FOR DEFAULT.
In case of default as described in paragraph 10 above,
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) Terminate this lease without relieving Tenant from its
obligation to pay damages.
(b) Retake possession of the Premises by summary proceedings
or otherwise, in which case Tenant's liability to Landlord for damages shall
survive the tenancy. Landlord may, after such retaking of possession, relet the
Premises upon any reasonable terms. No such reletting shall be construed as an
acceptance of a surrender of Tenant's leasehold interest.
(c) Recover damages caused by Tenant's default which shall
include reasonable attorneys' fees at trial and on any appeal therefrom.
Landlord may xxx periodically to recover damages as they occur throughout the
lease term, and no action for accrued damages shall bar a later action for
damages subsequently accruing. Landlord may elect in any one action to recover
accrued damages plus damages attributable to the remaining term of the lease
equal to the difference between the rent under this lease and the reasonable
rental value of the Premises for the remainder of the term, discounted to the
time of judgment at the rate of 6 percent per annum.
(d) Make any payment or perform any obligation required of
Tenant so as to cure Tenant's default, in which case Landlord shall be entitled
to recover all amounts so expended from Tenant, plus interest at the rate of 10
percent per annum from the date of the expenditure.
12. SURRENDER ON TERMINATION.
(a) On expiration or early termination of this lease, Tenant
shall deliver all keys to Landlord, have final utility readings made on the date
of move out, and surrender the Premises clean and free of debris inside and out,
with all mechanical, electrical, and plumbing systems in good operating
condition, all signing removed and defacement corrected, and all repairs called
for under this lease completed. The Premises shall be delivered in the same
condition as at the commencement of the term, subject only to depreciation and
wear from ordinary use. Tenant shall remove all of its furnishings and trade
fixtures that remain its property and restore all damage resulting from such
removal. Failure to remove said property shall be an abandonment of same, and
Landlord may dispose of it in any manner without liability.
(b) If Tenant fails to vacate the Premises when required,
Landlord may elect either to treat Tenant as a tenant from month to month,
subject to all provisions of this
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lease except the provision for term, or to eject Tenant from the Premises and
recover damages caused by wrongful holdover.
13. LANDLORD'S LIABILITY.
(a) Landlord warrants that so long as Tenant complies with all
terms of this lease it shall be entitled to peaceable and undisturbed possession
of the Premises free from any eviction or disturbance by Landlord or persons
claiming through Landlord.
(b) All persons dealing with Pacific Realty Associates, L.P.
("Partnership") must look solely to the property and assets of Partnership for
the payment of any claim against Partnership or for the performance of any
obligation of Partnership as neither the general partner, limited partners,
employees, nor agents of Partnership assume any personal liability for
obligations entered into on behalf of Partnership (or its predecessors in
interest) and their respective properties shall not be subject to the claims of
any person in respect of any such liability or obligation. As used herein, the
words "property and assets of partnership" exclude any rights of Partnership for
the payment of capital contributions or other obligations to it by the general
partner or any limited partner in such capacity.
14. MORTGAGE OR SALE BY LANDLORD; ESTOPPEL CERTIFICATES.
(a) This lease is and shall be prior to any mortgage or deed
of trust ("Encumbrance") recorded after the date of this lease and affecting the
Building and the land upon which the Building is located. However, if any lender
holding an Encumbrance secured by the Building and the land underlying the
Building requires that this lease be subordinate to the Encumbrance, then Tenant
agrees that this lease shall be subordinate to the Encumbrance if the holder
thereof agrees in writing with Tenant that so long as Tenant performs its
obligations under this lease no foreclosure, deed given in lieu of the
foreclosure, or sale pursuant to the terms of the Encumbrance, or other steps or
procedures taken under the Encumbrance shall affect Tenant's rights under this
lease. If the foregoing condition is met, Tenant shall execute the written
agreement and any other documents required by the holder of the Encumbrance to
accomplish the purposes of this paragraph.
(b) If the Building is sold as a result of foreclosure of any
Encumbrance thereon or otherwise transferred by Landlord or any successor,
Tenant shall attach to the purchaser or transferee, and the transferor shall
have no further liability hereunder.
(c) Either party shall within 20 days after notice from the
other execute and deliver to the other party a certificate stating whether or
not this lease has been modified and is in full force and effect and specifying
any modifications or alleged breaches by the other party. The certificate shall
also state the amount of monthly base rent, the dates to which rent has been
paid in advance, and the amount of any security deposit or prepaid rent. Failure
to deliver the certificate within the specified time shall be conclusive upon
the party of whom the certificate was requested that the lease is in full force
and effect and has not been modified except as may be represented by the party
requesting the certificate.
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15. DISPUTES - ATTORNEYS' FEES.
In the event of any litigation arising out of this lease, the
prevailing party shall be entitled to recover from the other party, in addition
to all other relief provided by law or judgement, its reasonable costs and
attorneys' fees incurred both at and in preparation for trial and any appeal or
review, such amount to be as determined by the court(s) before which the matter
is heard. Disputes between the parties which are to be litigated shall be tried
before a judge without a jury.
16. SEVERABILITY.
If any provision of this lease is held to be invalid,
unenforceable or illegal the remaining provisions shall not be affected and
shall be enforced to the fullest extent permitted by law.
17. INTEREST AND LATE CHARGES.
Rent not paid within 10 days of when due shall bear interest
from the date due until paid at the rate of 10 percent per annum. Landlord may
at its option impose a late charge of $.05 for each $1.00 of rent for rent
payments made more than 10 days late in addition to interest and other remedies
available for default.
18. GENERAL PROVISIONS.
(a) Waiver by either party of strict performance of any
provision of this lease shall not be a waiver of nor prejudice the party's right
otherwise to require performance of the same provision or any other provision.
(b) Subject to the limitations on transfer of Tenant's
interest, this lease shall bind and inure to the benefit of the parties, their
respective heirs, successors, and assigns.
(c) Landlord shall have the right to enter upon the Premises
with reasonable notice (except in the case of an emergency) to determine
Tenant's compliance with this lease, to make necessary repairs to the Building
or the Premises, or to show the Premises to any prospective tenant or
purchasers. During the last two months of the term, Landlord may place and
maintain upon the Premises notices for leasing or sale of the Premises.
(d) If this lease commences or terminates at a time other than
the beginning or end of one of the specified rental periods, then the rent
(including Tenant's share of real property taxes, if any) shall be prorated as
of such date, and in the event of termination for reasons other than default all
prepaid rent shall be refunded to Tenant or paid on its account.
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(e) Tenant shall within 10 days following Landlord's written
request deliver to Landlord a written statement specifying the dates to which
the rent and other charges have been paid, whether the lease is unmodified and
in full force and effect, and any other matters that may reasonably be requested
by Landlord.
(f) 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. Rent shall be payable to Landlord at the same address and in the same
manner.
19. REPAYMENT OF FREE RENT.
This lease provides for a period of "free" rent (hereinafter
referred to as "the Abated Rent"). Tenant shall be credited with having paid all
of the Abated Rent on the expiration of the lease term only if Tenant has fully,
faithfully, and punctually performed all of Tenant's obligations hereunder,
including the payment of all rent (other than the Abated Rent) and all other
monetary obligations and the surrender of the Property in the physical condition
required by this lease. Tenant acknowledges that the Tenant's right to receive
credit for the Abated Rent is absolutely conditioned upon Tenant's full faithful
and punctual performance of its obligations under this lease. The Abated Rent
shall immediately become due and payable in full and this lease shall be
enforced as if there were no such rent abatement or other rent concessions, in
the event of default by Tenant under this lease and such default is not cured
within any applicable grace period.
20. TENANT IMPROVEMENTS.
(a) Landlord shall, at its expense, perform the following work
within the Premises:
1. Configure the Premises generally as shown on the
attached Exhibit C.
2. Repaint the walls.
3. Provide and install new carpet.
4. Provide and install new vinyl composition tile in
the kitchen area.
The improvements shall be done in a workmanlike manner and
shall be to PacTrust Business Center tenant finish standards.
(b) Landlord shall provide Tenant with a $2,500.00 allowance
to rehabilitate the reception counter.
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21. EXPANSION OPTION.
Tenant shall have the right to expand into a larger space
located within PacTrust Business Center with 90 days written notice to Landlord,
provided such space is available.
22. WARRANTY.
Landlord shall grant Tenant an 18-month warranty for the
heating, ventilating, and air conditioning system, provided that Tenant
contracts with a reputable service contractor to provide proper maintenance for
the system. Such warranty shall be in effect for 18 months from occupancy.
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IN WITNESS WHEREOF, the duly authorized representatives of the parties
have executed this lease as of the day and year first written above.
PACIFIC REALTY ASSOCIATES, LP., AMERICAN SHOW MANAGEMENT,
A DELAWARE LIMITED PARTNERSHIP INC., AN OREGON CORPORATION
BY PACTRUST REALTY, INC., A DELAWARE
CORPORATION, ITS GENERAL PARTNER
By /s/ Xxxxx X. Xxxxx By /s/ [illegible]
Xxxxx X. Xxxxx Name Xxxxxxx X. [illegible]
Vice President Title President & COO
By --------------------------
Name --------------------------
Title --------------------------
ADDRESS FOR NOTICES/RENT PAYMENTS TO ADDRESS FOR LEGAL NOTICES TO
LANDLORD: TENANT:
00000 X.X. Xxxxxxx Xxxxxxx, Xxxxx 000 ---------------------------------
Xxxxxxxx, Xxxxxx 00000 ---------------------------------
---------------------------------
ADDRESS FOR INVOICES TO TENANT:
---------------------------------
---------------------------------
---------------------------------
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