EXHIBIT 00x
XXXXXXXX XXXXX OFFICE LEASE
This lease, made and entered into at Portland, Oregon
this October 29, 1996
by and between
AMERICAN PROPERTY MANAGEMENT CORP., as LESSOR, and
WHOLESOME & HEARTY FOODS, INC. AN OREGON CORPORATION, as LESSEE.
AMERICAN PROPERTY MANAGEMENT CORP. ACCOUNT #C-8923-02
LESSOR hereby leases to LESSEE the following:
SUITE #400 (THE PREMISES) CONSISTING OF 18,850 RENTABLE SQUARE FEET
in the Xxxxxxxx Plaza Office Building
(the Building) at 0000 X.X. Xxxxxxxx Xxxxxx, Xxxxxxxx XX 00000
for a term commencing December 6, 1996
and continuing through December 31, 1998;
at a Base Rental of $18,850.00 (U.S.) per month
payable in advance on the first day of each month at
0000 X.X. Xxxxxxxx, Xxxxx #000, Xxxxxxxx, Xxxxxx 00000-0000
commencing December 6, 1996.
LESSOR INITIAL_____ LESSEE INITIAL_____
LESSOR and LESSEE covenant and agree as follows:
1.1 THE PREMISES
The Premises square footage is an approximation only and may vary
from the actual square footage. Prior to occupancy LESSEE may inspect
and measure the Leased Premises to confirm the square footage.
Pursuant to paragraph 2.3 below, however, as of occupancy LESSEE shall
be deemed to have accepted the Leased Premises, and will be deemed to
have waived any objection to the square footage approximations set
forth herein.
The Premises include ten (10) private windowed offices with above
standard relights, desks, returns, upper and lower cabinets. The
built-in furniture is the property of the LESSOR and shall remain
intact and in its present condition, subject to normal wear and tear.
The Premises also contain built-in lockers, which are the
property of the LESSOR and shall remain intact.
2.1 DELIVERY OF POSSESSION
Should LESSOR be unable to deliver possession of the Premises on
the date fixed for the commencement date of the term, commencement
will be deferred and LESSEE shall owe no rent until receiving notice
from LESSOR tendering possession to LESSEE. If possession is not so
tendered within 45 days following commencement of the term, then
LESSEE may elect to cancel this lease by providing written notice to
LESSOR within 10 days following expiration of the 45 day period.
LESSOR shall have no liability to LESSEE for delay in delivering
possession, nor shall such delay extend the term of this lease in any
manner.
2.2 EARLY POSSESSION
If LESSEE occupies the Premises prior to said commencement date,
such occupancy shall be subject to all provisions of this LEASE, such
occupancy shall not advance the termination date, and LESSEE shall pay
rent for such period at the initial monthly rates set forth above.
After a LEASE is fully executed, the LESSOR will provide access
for LESSEE inspections (including but not limited to electrical and
phone capabilities) and wiring in the Premises prior to LESSEE move
in.
2.3 ACCEPTANCE OF LEASED PREMISES
Except as may be provided for in any exhibit, appendix or rider
hereto, occupancy shall be construed to mean that LESSEE expressly
acknowledges that it has fully inspected the Leased Premises and
accepts the Leased Premises in their present condition. LESSEE
further acknowledges LESSOR shall not be responsible for any
alternations, improvements or repairs unless by written agreement of
the parties, attached to and made a part of this Lease.
LESSOR INITIAL_____ LESSEE INITIAL_____
3.1 RENT PAYMENT
LESSEE 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 LESSEE occupies the Premises
based on a thirty (30) day month/365 day year. Rent not paid when due
shall bear interest at the rate of one-and-one-half percent (1 1/2%)
per month until paid in full. LESSOR may at its option impose a late
charge of .05 for each $1 of rent or $50.00, whichever is greater, for
rent payments made more than 10 days after its due date in lieu of
interest for the first month of delinquency, without waiving any other
remedies available for default.
4.1 LEASE CONSIDERATION
Upon LESSEE'S execution of the LEASE, LESSEE shall pay the Base
Rent for the first full month of the LEASE term for which rent is
payable and in addition shall pay the sum of $18,850.00, as LEASE
CONSIDERATION. LESSOR may apply the LEASE CONSIDERATION to pay the
cost of performing any obligation which LESSEE fails to perform within
the time required by this LEASE, but such application by LESSOR shall
not be the exclusive remedy for the LESSEE'S default. If the LEASE
CONSIDERATION is applied by LESSOR, LESSEE shall on demand pay the sum
necessary to replenish the LEASE CONSIDERATION to its required amount.
To the extent not applied by LESSOR to cure defaults by LESSEE, the
LEASE CONSIDERATION shall be applied against the rent payable for the
last month of the term. The LEASE CONSIDERATION shall not be
refundable. When the Base Rent is adjusted per the terms of this
LEASE, an additional amount shall be paid to bring the LEASE
CONSIDERATION amount equal to the newly adjusted Base Rent amount.
5.1 USE
LESSEE shall use the Premises for professional business office
use only (see exception below) with no retail sales or manufacturing
and for no other purpose without LESSOR'S consent. In connection with
its use, LESSEE shall at its expense promptly comply with all
applicable laws, ordinances, rules and regulations of any public
authority and shall not annoy, obstruct, or interfere with the rights
of the other tenants of the Building. LESSEE shall create no nuisance
nor allow any objectionable fumes, noise, or vibrations to be emitted
from the Premises. LESSEE shall not conduct any activities that will
increase LESSOR'S insurance rates for any portion of the Building or
that will in any manner degrade or damage the reputation of the
Building.
The LESSOR shall approve a "LESSEE test kitchen" in the Premises
as long as; 1.) the "test kitchen" is in compliance and stays in
compliance with all applicable building codes, fire codes and health
codes, 2.) the "test kitchen" does not disturb other tenants in the
building and 3.) the LESSOR approves the
LESSOR INITIAL_____ LESSEE INITIAL_____
specifications for the "test kitchen". Approval shall not be
unreasonably withheld.
6.1 EQUIPMENT
LESSEE shall install in the Premises only such office equipment
as is customary for general office use (see exception below) and shall
not overload the weight capacity of the floors or the capacity of the
electrical circuits of the Premises or Building or alter the plumbing
or wiring of the Premises or Building. LESSOR must approve, in
advance, the location and manner of installing any electrical, heat
generating or communication equipment or exceptionally heavy articles.
Any additional air conditioning required because of heat generating
equipment or special lighting installed by the LESSEE shall be
installed at LESSEE'S expense.
The LESSOR shall approve a "LESSEE test kitchen equipment" in the
Premises as long as; 1.) the "test kitchen equipment" is in compliance
and stays in compliance with all applicable building codes, fire codes
and health codes, 2.) the "test kitchen equipment" does not disturb
other tenants in the building and 3.) the LESSOR approves the
specifications of the "test kitchen equipment". Approval shall not be
unreasonably withheld.
7.1 SIGNS
Except for the exterior painted sign described below, 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 LESSOR'S written approval as to design, size, location and
color. All signs installed by LESSEE shall comply with LESSOR'S
standards for signs and all applicable codes and ordinances and all
signs and sign hardware shall be removed upon termination of this
LEASE with the sign location restored to its former state unless
LESSOR elects to retain all or any portion thereof. LESSOR shall
provide and install building standard signage in the name of the
LESSEE as it appears in this lease agreement for the building lobby
and suite entry. Any changes thereafter requested by LESSEE and
approved by LESSOR shall be at LESSEE'S sole expense.
The LESSEE shall be permitted, at their expense, to paint the
name "Wholesome & Hearty Foods, Inc." (color and letter style to be
mutually agreed by LESSOR and LESSEE) directly above the existing
building name on the North side of the building. The letter size
shall be one-half the size of the existing building letters. The
LESSEE shall be responsible for removing their signage at the end of
their Lease term.
8.1 UTILITIES AND SERVICES
LESSOR shall furnish heat, electricity, elevator service, and if
the Premises are air conditioned, air conditioning during the normal
Buildings hours of 7:00 A.M. to 6:00 P.M., Monday through
Friday, except holidays and 7:00 A.M. to 2:00 P.M. Saturdays, except
holidays. The acceptable temperature range for the Premises is
between 67 degrees to 75 degrees fahrenheit, as measured from the
thermostat level which is approximately sixty inches (60") above the
floor, unless there are extreme weather conditions which create an
unusually hot or cold condition. Janitorial service will be provided
in accordance with the regular schedule of the Building, which
schedule and service may change from time to time. LESSEE shall
comply with all government laws and 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 LESSEE'S use and possession of the Premises, render LESSOR liable
to LESSEE for damages, or relieve LESSEE from performance of LESSEE'S
obligations under this LEASE, but LESSOR 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. The LESSOR shall only provide repair and maintenance to
building standard florescent light fixtures. The LESSOR shall not be
responsible for repair, maintenance (including light bulb replacement)
for non-building standard light fixtures.
8.2 EXTRA USAGE
If LESSEE uses excessive amounts of LESSOR provided utilities
and/or services of any kind because of operation during normal
Building hours and/or outside of normal Building hours, high demands
from office machinery and equipment, nonstandard lighting or any other
cause, LESSOR may impose a reasonable charge for supplying such extra
utilities and/or services, which charge shall be payable monthly by
LESSEE in conjunction with rent payments. In case of dispute over any
extra charge under this paragraph, LESSOR shall designate a qualified
independent engineer whose decision shall be conclusive on both
parties. LESSOR and LESSEE shall each pay one-half of the cost of
such determination.
LESSEE shall be solely responsible for and promptly pay for the
removal of all debris, cardboard, all and any other refuse generated
in LESSEE'S moving into premises including the replacement of office
furniture and equipment during tenancy and in vacating the premises.
Upon request, LESSOR shall supply LESSEE the name of a recycling
company to remove recyclable items. LESSEE shall pay such additional
charge in full upon receipt of statement.
9.1 MAINTENANCE AND REPAIRS
LESSOR shall have no liability for failure to perform required
maintenance and repair unless written notice of the needed maintenance
or repair is given by LESSEE and LESSOR fails to commence efforts to
remedy the problem in a reasonable time and manner. LESSOR shall have
the right to erect scaffolding and other apparatus necessary for the
purpose of making repairs, and LESSOR shall have no
LESSOR INITIAL_____ LESSEE INITIAL_____
liability for reasonable interference with LESSEE'S use because of
repairs and installations, nor shall LESSOR be required to provide
LESSEE with advance written notice of LESSOR'S access to the Premises
during the following situations: 1.) in an emergency, 2.) LESSEE
requested repairs, or 3.) during normal building hours. LESSEE shall
have no claim against LESSOR for any interruption or reduction of
services or interference with LESSEE'S occupancy, and no such
interruption or reduction shall be construed as a constructive or
other eviction of LESSEE. Repair of damage caused by negligent or
intentional acts or breach of this lease by LESSEE, its employees, or
invitees shall be at LESSEE'S expense.
10.1 ALTERATIONS
LESSEE shall not make any alterations, additions, or improvements
to the Premises, change the color or character of the interior, or
install any wall or floor covering without LESSOR'S prior written
consent. Any such additions, alterations, or improvements, except for
removable machinery and unattached moveable trade fixtures shall at
once become part of the realty and belong to LESSOR. LESSOR may at
its option require that LESSEE remove any alterations and restore the
Premises to the original condition upon termination of this LEASE.
LESSOR shall have the right to approve the contractor used by LESSEE
for any work in the Premises, and to post notices of nonresponsibility
in connection with any work being performed by LESSEE in the Premises.
LESSEE agrees that any building or fixture modifications within the
LESSEE'S leased space that is required to accommodate the LESSEE,
employees or invitees of the LESSEE, as required by the Americans with
Disabilities Act (ADA), will be at the expense of the LESSEE.
The LESSEE shall not alter any lock or install a new or
additional lock or any bolt on any bolt on any door of the Leased
Premises without prior written consent of the LESSOR. In the event
LESSEE desires to change or modify door locks on the Leased Premises,
LESSEE shall notify LESSOR in advance and shall use LESSOR'S
authorized locksmith and LESSEE shall bear such cost.
11.1 INDEMNITY
LESSEE shall not allow any liens to attach to the Building or
LESSEE'S interest in the Premises as a result of its activities.
LESSEE shall indemnify and defend LESSOR from any claim, liability,
damage, or loss occurring on the Premises, arising out of any activity
by LESSEE, its agents, or invitees or resulting from LESSEE'S failure
to comply with any term or condition of this LEASE. LESSOR shall have
no liability to LESSEE because of loss or damage caused by the acts or
omissions of other tenants of the Building, or by third parties.
12.1 INSURANCE
LESSOR INITIAL_____ LESSEE INITIAL_____
LESSEE shall carry liability insurance in the amount of no less
than $1,000,000.00 and which insurance shall have an endorsement
naming LESSOR and LESSOR'S agent, if any, as an additional insured and
covering the liability insured under Paragraph 11.1 of this LEASE.
LESSEE shall furnish a certificate evidencing such insurance which
shall state that the coverage shall not be cancelled or materially
changed without 10 days advance written notice to LESSOR and LESSOR'S
agent, if any, and a renewal certificate shall be furnished at least
10 days prior to expiration of any policy. LESSEE is responsible for
their own fire insurance, see Section 14.1.
13.1 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 (25%) of pre-damage value of the Building to repair, or
which is not covered by insurance. In case of Major Damage, LESSOR
may elect to terminate this LEASE by notice in writing to LESSEE
within 30 days after such date. If this LEASE is not terminated
following Major Damage, LESSOR shall promptly restore the Premises to
the condition existing just prior to the damage. LESSEE shall
promptly restore all damage to tenant improvements or alterations
installed by LESSEE or pay the cost of such restoration to LESSOR if
LESSOR 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 LESSOR is substantially complete, with the
reduction to be in proportion to the area of the Premises not useable
by LESSEE.
14.1 WAIVER OF SUBROGATION
LESSEE shall be responsible for insuring its personal property
and trade fixtures located on the Premises. Neither LESSOR nor LESSEE
shall be liable to the other for any loss or damage caused by fire,
water damage, sprinkler leakage, or any of the risks that are or could
be covered by a standard all risk insurance policy with an extended
coverage endorsement, 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.
15.1 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 LESSEE'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 the area of the Premises caused by the taking. All
condemnation proceeds shall belong to LESSOR, and LESSEE shall have
LESSOR INITIAL_____ LESSEE INITIAL_____
no claim against LESSOR or the condemnation award because of the
taking.
16.1 ASSIGNMENT AND SUBLETTING
This LEASE shall bind and inure to the benefit of the parties,
their respective heirs, successors, and assigns, provided that LESSEE
shall not assign its interest under this LEASE or sublet all or any
portion of the Premises without first obtaining LESSOR'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
LESSEE. No assignment or subletting shall relieve LESSEE 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. LESSOR shall not
unreasonably withhold its consent to any assignment, or to subletting
provided the subrental rate or effective rental paid by the assignee
is not less than the current scheduled rental rate of the Building for
comparable space and the proposed LESSEE is compatible with LESSOR'S
normal standards for the Building. If LESSEE proposes a subletting or
assignment to which LESSOR is required to consent under this
paragraph, LESSOR shall have the option of terminating this LEASE and
dealing directly with the proposed sublessee 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 LESSEE as a
result of such transaction shall be paid to LESSOR promptly following
its receipt by LESSEE unless the assignment or sublease is with an
affiliated or subsidiary company and Wholesome & Hearty Foods, Inc. an
Oregon Corporation remains the LESSEE. In addition, out of pocket
LESSEE tenant improvement costs approved by LESSOR shall be deducted
from any cash profit. LESSEE shall pay any costs incurred by LESSOR
in connection with a request for assignment or subletting, including
reasonable attorneys' fees. The LESSOR'S administrative costs shall
be capped at $500.00.
17.1 DEFAULT
Any of the following shall constitute a default by LESSEE under
this LEASE:
(a) LESSEE'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 10 days following written notice from LESSOR
specifying the noncompliance. If such noncompliance cannot be cured
within this 10 day period, the provision shall be satisfied if LESSEE
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 in the performance of this LEASE.
LESSOR INITIAL_____ LESSEE INITIAL_____
(b) The making by LESSEE of any general assignment or general
arrangement for the benefit of creditors; or the filing by or against
LESSEE of a petition to have LESSEE adjudged a bankrupt, or a petition
or reorganization or arrangement under any law relating to bankruptcy
(unless, in the case of a petition filed against LESSEE, the same is
dismissed within sixty (60) days); or the appointment of a trustee or
a receiver to take possession of substantially of all LESSEE'S assets
located at the Premises or of LESSEE'S interest in this Lease, where
possession is not restored to LESSEE within thirty (30) days; or the
attachment, execution, or other judicial seizure of substantially all
of LESSEE'S assets located at the Premises or of LESSEE'S interest in
this Lease, where such seizure is not discharged within thirty (30)
days.
(c) Assignment or subletting by LESSEE in violation of Paragraph
16.1.
(d) Vacation or abandonment of the Premises without the written
consent of LESSOR.
17.2 REMEDIES FOR DEFAULT
In case of default as described in Paragraph 17.1, LESSOR 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) LESSOR may terminate the LEASE and retake possession of the
Premises. Following such retaking of possession, efforts by LESSOR to
relet the Premises shall be sufficient if LESSOR follows its usual
procedure for finding tenants for the space at rates not less than the
current rates for other comparable space in the Building. If LESSOR
has other vacant space in the Building, prospective tenants may be
placed in such other space without prejudice to LESSOR'S claim to
damages or loss of rental from LESSEE.
(b) LESSOR may recover all damages caused by LESSEE'S default which
shall include an amount equal to rentals lost because of the default,
lease commissions paid for this LEASE, the unamortized cost of any
tenant improvements installed by LESSOR to meet LESSEE'S special
requirements and the cost of any clean up, refurbishing, lock changes
and removal of the LESSEE'S property and fixtures. LESSOR 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. LESSOR 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
judgment at the prevailing interest rates on judgments.
LESSOR INITIAL_____ LESSEE INITIAL_____
(c) LESSOR may make any payment or perform any obligation which
LESSEE has failed to perform, in which case LESSOR shall be entitled
to recover from LESSEE upon demand all amounts so expended, plus
interest from the date of the expenditure at the rate of one-and-one-
half percent (1 1/2%) per month. Any such payment or performance by
LESSOR shall not waive LESSEE'S default.
18.1 SURRENDER
On expiration or early termination of this LEASE, LESSEE shall
deliver all keys to LESSOR to avoid a minimum lock change charge of
$80.00 per lock and surrender the Premises broom clean and in the same
condition as at the commencement date of the term subject only to
reasonable wear from ordinary use. LESSEE shall remove all of its
furnishings and trade fixtures that remain its property and restore
all damage resulting from such removal. Failure to remove shall be an
abandonment of the property and LESSOR may dispose of it in any manner
without liability and LESSEE shall pay a reasonable charge for such
removal and disposal. If LESSEE fails to vacate the Premises when
required, including failure to remove all its personal property,
LESSOR may elect either: (1) to treat LESSEE as a tenant from month
to month, subject to all the provisions of this LEASE except that rent
shall be one-and-one-half (1 1/2) times the total rent being charged
when the lease term expired; or (2) to eject LESSEE from the Premises
and recover damages caused by wrongful holdover. During the period of
sixty (60) days prior to the termination date of this LEASE, the
LESSOR may post on said premises or in the windows thereof signs of
appropriate size notifying the public that the premises are "For
Lease."
19.1 REGULATIONS
LESSOR 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, 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.
20.1 ACCESS
During times other than normal Building hours LESSEE'S officers
and employees or those having business with LESSEE may be required to
identify themselves or show passes in order to gain access to the
Building. LESSOR shall have no liability for permitting or refusing
to permit access by anyone. The LESSOR shall not be required to give
notice to access the Premises during emergencies, LESSEE requested
repairs or during normal building hours. LESSOR shall have the right
to enter upon the Premises after normal building hours by passkey or
otherwise to determine LESSEE'S compliance with this LEASE, to perform
necessary repairs to the Building or the Premises, examine the
condition of the Leased Space, to show the Premises to any prospective
tenant or purchasers or for any other lawful purpose with at least 24
hours notice. Except in the case of emergency, such entry shall be at
such times and in such manner as to minimize
LESSOR INITIAL_____ LESSEE INITIAL_____
interference with the reasonable business use of the Premises by
LESSEE.
21.1 FURNITURE AND BULKY ARTICLES
LESSEE shall move furniture and bulky articles in and out of the
Building or make independent use of the elevators only at times
approved by LESSOR following at least 24 hours' advance written notice
to LESSOR of the intended move. LESSOR will not unreasonably withhold
its consent under this paragraph. Items of 1,000 pounds or greater
shall require LESSOR'S approval.
22.1 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 written notice to the other. Notice to LESSEE may
always be delivered to the Premises. Rent shall be payable to LESSOR
at the LESSOR'S address and in the same manner, but shall be
considered paid only when received.
23.1 SUBORDINATION
This LEASE shall be subject and subordinate to any mortgages,
deeds of trust, or land sale contracts (hereafter collectively
referred to as encumbrances) now existing against the Building. At
LESSOR'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 LESSEE shall execute such documents as may reasonably be requested
by LESSOR or the holder of the encumbrance to evidence this
subordination.
24.1 TRANSFER OF BUILDING
If the Building is sold or otherwise transferred by LESSOR or any
successor, LESSEE shall attorn to the purchaser or transferee and
recognize it as the LESSOR under this LEASE, and, provided the
purchaser assumes all obligations hereunder, the transferor shall have
no further liability hereunder.
25.1 ESTOPPELS
Either party will within 20 days after written 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 any other party; the dates to which rent has been
paid in advance, and the amount of any security deposit, LEASE
CONSIDERATION, 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
LESSOR INITIAL_____ LESSEE INITIAL_____
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, LESSEE will agree to give such
holder or LESSOR notice of and an opportunity to cure any default by
LESSOR under this LEASE.
26.1 ATTORNEYS FEES
In any litigation arising out of this LEASE, the prevailing party
shall be entitled to recover, in addition to costs and disbursements,
attorneys' fees at trial and on any appeal.
27.1 QUIET ENJOYMENT
LESSOR warrants that so long as LESSEE 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
LESSOR.
28.1 COMPLETE AGREEMENT
This LEASE and the attached Exhibits and Schedules constitute the
entire agreement of the parties and supersede all prior written and
oral agreements and representations. Neither LESSOR nor LESSEE is
relying on any representations other than those expressly set forth
herein.
29.1 CHAIR MATS
N/A DELETED IN ITS ENTIRETY
30.1 PARKING
LESSEE shall have the nonexclusive use of no less than eighteen
(18) spaces for every 18,850 square feet of leased space in the
adjacent lot for use during normal business hours at an initial
monthly rate of $85.00 per space and shall be subject to Provision
#3.1. The cost shall be subject to an annual five percent (5%) fixed
increase. LESSOR has sole control of parking and may designate areas
for patrons of the property/building and assign LESSEE and employees
of the LESSEE to designated parking areas. LESSEE and employees shall
park their cars only in these areas designated for the purpose by the
LESSOR. LESSEE shall furnish to LESSOR license numbers of vehicles
used by the LESSEE and the employees of the LESSEE, and notify LESSOR
of any changes within five (5) days. If LESSEE or its employees fail
to park their vehicles in designated parking areas, then LESSOR may
charge LESSEE an additional twenty dollars ($20.00)
LESSOR INITIAL_____ LESSEE INITIAL_____
per day per vehicle for each or partial day, in any area other than
those designated, or if the area is signed as a towing area, to have
the vehicle(s) towed at the LESSOR'S option and at the expense of the
LESSEE and its employees.
The LESSEE shall be allowed to have up to eight (8) cars parked
in the adjacent lot evenings and on weekends on a first come first
serve basis. There shall be no overnight storage of vehicles or
trailers in the parking areas or outside of premises. LESSOR may
remove vehicle from property and LESSEE shall bear the cost of such
removal.
The LESSEE acknowledges that the adjacent parking lot may be
developed at which time the LESSOR will not be responsible for
providing the eighteen (18) parking spaces described above. In this
event, the LESSOR will make its best efforts to find parking within a
four (4) block radius of the building.
The LESSEE shall be allowed to use the loading area off of 00xx
Xxxxxx for daily deliveries. The LESSEE agrees to limit
delivery/loading time to 15 minutes per delivery.
31.1 COMMON AREA
LESSOR shall have the right, in LESSOR'S sole discretion, from time to
time:
1.) To make changes to the building interior and exterior and common
areas, including, without limitation, changes in the location, size,
shape, number, and appearance thereof, including but not limited to
the lobbies, windows, stairways, air shafts, elevators, escalators,
restrooms, driveways, entrances, parking spaces, parking areas (not
including adjacent parking), loading and unloading areas, ingress,
egress, direction of traffic, decorative walls, landscaped areas and
walkways;
2.) To close temporarily any of the common areas for maintenance
purposes so long as reasonable access to the premises remains
available;
3.) To designate other land and improvements outside the boundaries
of the building to be a part of the common areas, provided that such
other land and improvements have a reasonable and functional
relationship to the building;
4.) To add additional buildings and improvements to the common area;
5.) To use common areas while engaged in making additional
improvements, repairs or alterations to the building, or any portion
thereof;
6.) To do and perform such other acts and make such other changes in,
to or with respect to the common areas and building as LESSOR may, in
the exercise of sound business judgement deem to be appropriate.
LESSOR INITIAL_____ LESSEE INITIAL_____
Where the Building has a common entrance or meeting room, the
LESSEE may use these facilities at no cost on a first-come, first-
serve basis by contacting the LESSOR and reserving the room in
advance. Abusing the privilege of the rooms may result in the loss of
said use.
32.1 NOTICE OF NON-RENEWAL
N/A DELETED IN ITS ENTIRETY
33.1 NOTICE TO OWNERS, BUYERS, AND TENANTS REGARDING HAZARDOUS WASTES OR
SUBSTANCES UNDERGROUND STORAGE TANKS
Comprehensive Federal and State laws and regulations have been
enacted in the last few years in an effort to develop controls over
the use, storage, handling, cleanup, removal and disposal of hazardous
wastes or substances. Some of these laws and regulations, such as,
for example, the so-called "Superfund Act", provide for broad
liability schemes wherein an owner, tenant or other user of the
property may be liable for cleanup costs and damages regardless of
fault. Other laws and regulations set standards for the handling of
asbestos or establish requirements for the use, modification,
abandonment or closing of underground storage tanks.
It is not practical or possible to list all such laws and
regulations in this Notice. Therefore, owners, buyers and tenants are
urged to consult legal counsel to determine their respective rights
and liabilities with respect to the issues described in this Notice as
well as all other aspects of the proposed transaction. If
LESSOR INITIAL_____ LESSEE INITIAL_____
hazardous wastes or substances have been, or are going to be used,
stored, handled or disposed of on the property, or if the property has
or may have underground storage tanks, it is essential that legal and
technical advice be obtained to determine, among other things, what
permits and approvals have been or may be required, if any, the
estimated costs and expenses associated with the use, storage,
handling, cleanup, removal or disposal of the hazardous wastes or
substances and what contractual provisions and protections are
necessary or desirable. It may also be important to obtain expert
assistance for site investigations as to the likelihood of hazardous
wastes or substances, or underground storage tanks being on the
property.
Although AMERICAN PROPERTY MANAGEMENT CORP. will disclose any
knowledge it actually possesses with respect to the existence of
hazardous wastes or substances, or underground storage tanks on the
property, AMERICAN PROPERTY MANAGEMENT CORP. has not made
investigations or obtained reports regarding the subject matter of
this Notice, except as may be described in a separate written document
signed by AMERICAN PROPERTY MANAGEMENT CORP. AMERICAN PROPERTY
MANAGEMENT CORP. makes no representations regarding the existence or
nonexistence of hazardous wastes or substances, or underground storage
tanks on the property. You should contact a professional, such as a
civil engineer, geologist, industrial hygienist or other persons with
experience in these matters to advise you concerning the property.
The term "hazardous wastes or substances" is used in this Notice
in its very broadest sense and includes, but is not limited to
petroleum base products, paints and solvents, lead cyanide, DDT,
printing inks, acids, pesticides, ammonium compounds, asbestos, PCBs
and other chemical products. Hazardous wastes or substances and
underground storage tanks may be present on all types of real
property. This Notice is therefore meant to apply to any transaction
involving any type of real property, whether improved or unimproved.
34.1 MODIFICATION
This LEASE may not be modified except by endorsement in writing
attached to this LEASE, dated and signed by all the parties hereto,
and LESSOR shall not be bound by any oral or written statement of any
servant, agent, or employee modifying this LEASE.
35.1 PARTIES AFFECTED
The rights, liabilities and remedies provided for herein shall
extend to the heirs, legal representatives, successors and, so far as
the terms of this LEASE permit, assigns of the parties hereto, and the
words "LESSOR" and "LESSEE" and their accompanying verbs or pronouns,
wherever used in this LEASE, shall apply equally to all persons,
firms, or corporations which may be or become parties hereto.
LESSOR INITIAL_____ LESSEE INITIAL_____
36.1 SECURITY
LESSEE and not LESSOR, is responsible for security of the Leased
Space. Any breach in security of the Leased Space, common areas,
common access doors, and/or elevators shall not constitute an eviction
of the LESSEE or relieve LESSEE from any of LESSEE'S obligations under
this LEASE. All tenants shall have the responsibility for maintaining
the security to common access.
37.1 RIGHT TO RELOCATE
N/A DELETED IN ITS ENTIRETY
38.1 RENTAL ADJUSTMENT
The rental will be adjusted on the annual anniversary date of the
LEASE if the LEASE is for a term of one (1) year or longer. On said
anniversary date the rental adjustment will be the lowest of the
following two (2) factors:
(A) A five percent (5%) increase over the yearly rental rate paid the
current year term now expiring.
(B) The percentage increase in the yearly Consumer Price Index for
U.S. City average (all urban consumer), which as of August 1996 was
157.3 and the same Consumer Price Index as of August 1997, and on the
same month of each year of the LEASE term. Such information will be
secured from the U.S. Bureau of Labor Statistics.
An equal amount shall be paid to bring the LEASE CONSIDERATION up to
an equal amount of the current month's rent.
38.2 RENTAL ADJUSTMENT DATES
December 1, 1997
December 1, 1998
LESSOR INITIAL_____ LESSEE INITIAL_____
39.1 SMOKING - ENTIRE
NON-SMOKING BUILDING
The building in which the LEASED space is located has been
designated as an entire NON-SMOKING building. This includes ALL areas
of the building, both common areas as well as individual tenant
spaces. Thus, smoking in the LEASED area is not permitted. Because
of the fact that some tenants' leases were in existence prior to the
adoption of the entire building non-smoking policy, these tenants have
the right, if they choose, to smoke in their LEASED space only, but do
have a LEASE obligation to provide smokeless ashtrays and/or an air
purification system that will filter air within the space to the
extent that it is economically feasible. LEASES for all new tenants
moving into the building will incorporate the entire non-smoking
building policy and will prohibit these new tenants under their LEASE
from smoking in all areas of the building.
40.1 WAIVER
Any waiver by the LESSOR of any breach of any covenant herein
contained to be kept and performed by the LESSEE shall not be deemed
or considered as a continuing waiver, and shall not operate to bar or
prevent the LESSOR from declaring a forfeiture for any succeeding
breach, either of the same condition or covenant otherwise.
41.1 PERSONAL GUARANTY
See Exhibit "A"
X None Required
----------
42.1 INTERIOR DESIGN & MODIFICATION
See Exhibit "B" Space Plan
43.1 LESSOR AGREED TENANT
IMPROVEMENTS
See Exhibit "C" Interior Space Work Agreement
44.1 LESSEE AGREED IMPROVEMENTS
See Exhibit "D"
X None Required
-----------
LESSOR INITIAL_____ LESSEE INITIAL_____
45.1 TELEPHONES
LESSEE agrees, at its expense, to provide telephone wiring into
each individual office of the premises and appropriate common areas.
LESSEE agrees that LESSOR shall not be liable for any damages or other
liability incurred by LESSEE or any other parties as a result of
LESSEE'S wiring the premises for telephones. LESSEE further agrees to
indemnify and hold harmless LESSOR from any and all liability or
claims of LESSEE or others arising or resulting from LESSEE'S wiring
of the premises for telephones.
46.1 TIME IS OF THE ESSENCE
LESSOR and LESSEE acknowledge that time is of the essence in the
execution of this Lease Agreement in order to allow LESSOR adequate
time to complete the agreed upon Tenant Improvements. If the Lease
Agreement is not signed, returned (with Lease Consideration and
prepaid rent) and accepted by the LESSOR by October 22, 1996, then
LESSEE understands that the Tenant Improvements described in Exhibit
"B" Space Plan and Exhibit "C" Interior Space Work Agreement may not
be completed by the Lease Commencement date and LESSEE shall not take
possession of premises until said Tenant Improvements are completed.
47.1 RENT CONCESSION
The LESSEE shall receive a rental credit equal to $18,850.00,
which shall be applied to January 1997 rent only.
48.1 EXPIRATION OF OFFER
This offer to lease shall be null and void at the sole option of
the LESSOR if not returned to LESSOR signed by LESSEE in an acceptable
form to LESSOR and accompanied by appropriate funds by October 29,
1996.
49.1 OPTION TO RENEW
LESSEE shall be entitled to one (1) option to renew this Lease
Agreement for a term of not less than two (2) years commencing after
the initial lease term expiration under terms and conditions to be
mutually agreed to with a new Lease Agreement fully executed by LESSOR
and LESSEE no later than August 1, 1998. If no mutual agreement can
be made between LESSOR and LESSEE on or before August 1, 1998, this
option to renew shall be null and void.
(a) LESSEE shall have no right to exercise an Option, notwithstanding
any provision in the grant of Option to the contrary; (i) during the
period commencing with the giving of any notice of Default under
LESSOR INITIAL_____ LESSEE INITIAL_____
Section 17.1 and continuing until the noticed Default is cured, or
(ii) during the period of time any monetary obligation due LESSOR from
LESSEE is unpaid (without regard to whether notice thereof is given to
LESSEE), or (iii) during the time LESSEE is in Breach of this Lease,
or (iv) in the event the LESSOR has given to LESSEE three (3) or more
notices of separate Defaults during the twelve (12) month period
immediately preceding the exercise of the Option, whether or not the
defaults are cured.
(b) The Option granted to LESSEE in this Lease is personal to the
original LESSEE named on Page 1 hereof and cannot be voluntarily or
involuntarily assigned or exercised by any person or entity other than
said original LESSEE while the original LESSEE is in full and actual
possession of the Premises and without the intention of thereafter
assigning or subletting. The Option herein granted to LESSEE is not
assignable, either as a part of an assignment of this Lease or
separately or apart therefrom, and no Option may be separated from
this Lease in any manner, by reservation or otherwise.
In construing of this LEASE, it is understood that the LESSOR or the LESSEE may
be more than one person; that if the context so requires, the singular pronoun
shall be taken to mean and include the plural, the masculine, the feminine, and
the neuter, and that generally all grammatical changes shall be made, assumed
and implied to make the provisions hereof apply equally to corporations and to
individuals.
IN WITNESS WHEREOF, the respective parties have executed this instrument in
duplicate on this, the day and year first hereinabove written, any corporation
signature being by authority of its Board of Directors.
LESSOR: By:________________________________
AMERICAN PROPERTY MANAGEMENT CORP. Name: Xxxxxx X. Xxxxxxx
AS AGENT FOR AND ON BEHALF OF WESTON HOLDING COMPANY, L.L.C.
(Federal Tax ID# 00-0000000*) Title: Vice President Commercial
Property
*Lessee need not supply Lessor a Federal 1099 Form
Address for Notices:
X.X. Xxx 00000
Xxxxxxxx, Xxxxxx 00000-0000
LESSOR INITIAL_____ LESSEE INITIAL_____
0000 X.X. Xxxxxxxx, #000
Xxxxxxxx, Xxxxxx 00000-0000 DATE:______________________________
LESSEE:
WHOLESOME & HEARTY FOODS, INC.
AN OREGON CORPORATION By: _______________________________
Name: ______________________________
Address for Notices:
0000 X.X. Xxxxxxxx Xxxxxx
Title:_____________________________
Xxxxx 000
Xxxxxxxx, Xxxxxx 00000
DATE:______________________________
NOTARY:
STATE OF _________________)
) ss.
County of __________________)
The foregoing instrument was acknowledged before me this _____ day of
_______________, 19___, by the above-named_________________________________
___________________________________________________________________________
to be his/her voluntary act and deed.
___________________________________
Notary Public for _________________
My Commission Expires:_____________
EXHIBIT "B" SPACE PLAN
WHOLESOME & HEARTY FOODS, INC.
an Oregon Corporation
0000 X.X. Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxx 00000
Account #C-8923-02
LESSOR INITIAL_____ LESSEE INITIAL_____
ANY CHANGES TO THIS EXHIBIT "B" SPACE PLAN ARE SUBJECT TO LESSOR'S APPROVAL.
ANY CHANGES TO THIS PLAN SHALL BE AT LESSEE'S SOLE COST AND EXPENSE, SHALL NOT
DELAY LEASE COMMENCEMENT, AND MAY DELAY LESSEE'S OCCUPANCY.
EXHIBIT "C" INTERIOR SPACE WORK AGREEMENT
LESSEE: WHOLESOME & HEARTY FOODS, INC. an Oregon Corporation
ACCOUNT #:C-8923-02 BUILDING/SUITE #: Xxxxxxxx Plaza/400
ACCEPTED AGREED LESSOR LESSEE
ITEM AS-IS IMPROVEMENTS EXPENSE EXPENSE
----------------------------------------------------------------------------------------------------
PAINTING: ------- Repaint the premises. Color to be Weston X
-------
(Building Standard Color) ------- White. Existing wall cover to remain "as-is".
FLOORCOVERING: X NONE
(Building Standard Carpet ------- ------
Color/Cove Base Color)
VINYL FLOORCOVERING: X NONE
(Building Standard Vinyl) ------- ------ -------
LESSOR INITIAL_____ LESSEE INITIAL_____
LIGHTING: X NONE
(Building Standard Fixtures) ----- ----------
ELECTRICAL: X NONE
(Building Standard 110 Volt) ----- ----------
CEILING: X NONE
(Building Standard ----- ----------
Acoustical Tile)
PARTITIONS: X NONE
(Building Standard Sheetrock) ----- ----------
DOORS/FRAMES ----- The Lessor shall provide one six foot
sliding glass X
(Building Standard Quality) ----- door where indicated on Exhibit "B" Space Plan
as long as a six foot opening can be made and
nothing in the said opening needs to be relocated
(ie; plumbing, conduits, vents, etc.).
LOCKS/HARDWARE ----- All interior doors are to be supplied X
(Building Standard Quality) ----- with passage door knobs only (no locks). -------
RELIGHTS: X NONE
(Building Standard Interior) ----- -----------
WINDOWCOVERING: X NONE
(Building Standard Exterior) ----- -----------
TELEPHONE: X NONE
(Building Standard Mud Rings) ----- -----------
PLUMBING: X NONE
----- -----------
OTHER: NONE
If LESSEE is modifying their existing space layout, or expanding their leased
premises it is understood and agreed that all work will be performed during
normal business hours and will not be deemed as an interruption of LESSEE'S
business and that AMERICAN PROPERTY MANAGEMENT CORP. assumes no liability for
damage to any existing hidden electrical located in the walls, ceiling and/or
floors (i.e., electrical for phones, fax, computers, office equipment, etc.)
that is not indicated on this agreement and brought to the attention of
AMERICAN PROPERTY MANAGEMENT CORP. prior to the office remodel or is not
equipped with an appropriate power surge protection device.
