EXHIBIT 10.24
LEASE
1. BASIC LEASE TERMS.
(a) Effective Date of this Lease: November 1, 1999.
(b) Parties and Notice Addresses:
Landlord: MACTARNAHAN LIMITED PARTNERSHIP, an Oregon limited
partnership whose address is 00000 X.X. Lynnridge Avenue, Portland,
Oregon 97225, phone number (000) 000-0000.
Tenant: HARCO PRODUCTS, INC., an Oregon corporation, whose address
shall be at the Premises.
(c) Description of Premises: Approximately 5,600 existing square foot
space as shown on attached Exhibit "A" located at 0000 X.X. Pacific
Avenue, Beaverton, Oregon.
(d) Term: The term of this Lease shall commence on November 1, 1999 (the
"Commencement Date") and shall expire on October 31, 2004 (the
"Expiration Date"); provided, however, that the term of this Lease may
be terminated by Tenant upon 60 days' written notice to Landlord;
provided, however, that if Tenant assigns its interest in the Lease
pursuant to Section 19(a) or 19(b), then the 60-day notice period will
be extended to a 180-day notice period.
(e) Base Monthly Rent: Base Monthly Rent shall be $2,500 per month.
(f) Security Deposit: None.
(g) Use: The Premises shall be used for any lawful purpose as allowed
pursuant to Section 6 below, and for no other purpose whatsoever.
2. PREMISES.
(a) Demise and Description. Landlord leases to Tenant and Tenant leases
from Landlord the premises described in Section 1 and depicted on
Exhibit "A" attached (the "Premises"), which are located in the
project depicted on Exhibit "A" attached (the "Project"). The Project
is agreed to contain a total of 15,600 square feet of space at this
time. All square footages set forth herein are approximate, but are
agreed figures, and no claim shall be based upon any inaccuracy or
remeasurement.
(b) Inspection. Tenant executes this Lease for the Premises in their
present condition "AS IS." Tenant acknowledges that Tenant is not
relying on any representation of Landlord or of any agent of Landlord,
express or implied, as to the condition of the Premises, the
suitability of the Premises for particular purposes, or compliance of
the Premises with any city, county, state and/or federal statute, code
or ordinance. Landlord has not made, and no agent of Landlord has made
or is authorized to make, any representation or warranty to Tenant
regarding the Premises or the Project. Tenant is leasing the Premises
pursuant to its own independent examination, study and inspection of
the Premises and Tenant is relying upon its own determination of the
value of the Premises and the uses to which the Premises may be put.
(c) Common Areas. Tenant and its employees and visitors shall have a
license to use the common areas of the Project, in common with others,
during the time that Tenant has a right to occupy the Premises. This
license is subject to the provisions of this Lease, to events beyond
the reasonable control of Landlord (including government regulation,
casualty, or condemnation), and to the reserved right of Landlord to
delete from, add to, reconfigure, or otherwise modify the common areas
from time to time; provided, any deletions, additions,
reconfigurations or modifications which are not required by government
regulation shall not materially interfere with the visibility of or
access to the Premises. Tenant shall not make excessive use of the
common areas and shall comply with such rules and regulations
regarding the common areas as Landlord may reasonably adopt from time
to time. Landlord shall at all times throughout the term of this Lease
operate, or cause the operation of, the common areas, including the
parking areas, in the Project in a good manner consistent with past
practice. No charge shall be made or imposed upon Tenant or its
employees or visitors for parking within the Project without the prior
approval of Tenant. Parking is intended for the employees and visitors
of Tenant and the other lessees of the Project. Landlord shall not
allow the parking ratio to be less than required by any applicable
law, subject to changes in law, takings or sales in lieu of
condemnation, and other acts of government.
3. TERM. The term of this Lease is for the period set forth in Section 1,
commencing on the Commencement Date and expiring on the Expiration Date,
unless earlier terminated in accordance with the provisions of this Lease.
Upon request, the parties shall execute an Amendment hereto specifying the
exact Commencement Date and Expiration Date.
4. RENT.
(a) Base Monthly Rent.
(1) Generally. Tenant shall pay Landlord base monthly rent in the
applicable amount(s) set forth in this Lease ("Base Monthly
Rent"). Base Monthly Rent shall be paid monthly in advance on the
first day of each and every calendar month. Base Monthly Rent
shall commence to accrue as of the Commencement Date; Base
Monthly Rent shall be prorated and paid in advance for any
partial first month. The obligation of Tenant to pay any amount
hereunder to Landlord shall be deemed an obligation to pay rent.
(2) Initial Occupancy Provisions. Tenant shall be given possession of
the Premises upon mutual execution and delivery of this Lease.
(b) Expenses. Beginning on and as of delivery of possession, Tenant shall
pay to Landlord the Tenant's Share (defined below) of Expenses related
to the Project.
(1) Expenses Defined. The term "Expenses" shall mean all costs
incurred by Landlord in connection with the ownership, operation,
management, improvement, replacement (excluding roof replacement
and excluding replacements and repairs to the structure of the
building not necessitated by the act or negligence of Tenant),
repair and maintenance of the Project, including roof repairs and
maintenance, but excluding (i) landscape upkeep and parking lot
cleaning and sweeping, and (ii) costs incurred by Landlord under
Section 13(c) below. Expenses include but are not limited to
taxes (including the then current installments of all local
improvement district assessments and other assessments),
insurance premiums, utility charges (electric, gas, and all
others), repair and maintenance costs, and a management and
administrative fee equal to ten percent (10%) of all Expenses
excluding taxes and insurance premiums.
(2) Tenant's Share. Tenant's Share of Expenses is defined as the
total annual amount of Expenses multiplied by a fraction, the
numerator of which is the square footage of the Premises and the
denominator of which is the square footage of the Project.
Tenant's Share of Expenses shall be calculated on an annual basis
for each calendar year, including the remainder of the calendar
year in which the Commencement Date occurs, shall be prorated for
partial calendar years, and shall be adjusted in the case of any
change in the square footage of the Premises and/or Project.
(3) Taxes and Insurance. Tenant shall pay to Landlord Xxxxxx's Share
of taxes and insurance once each year within ten (10) days of
Landlord's invoice for the same.
(4) Estimate and Monthly Payment of Expenses; Annual Reconciliation.
Tenant shall pay to Landlord, monthly in advance, as additional
rent, one-twelfth (1/12th) of the annual estimate of Tenant's
Share of Expenses other than taxes and insurance then in effect,
beginning as of the date of delivery of possession. Immediately
prior to the Commencement Date, and prior to each calendar year
thereafter, Landlord shall estimate Tenant's Share of Expenses
other than taxes and insurance for the coming calendar year, and
such estimate shall be the basis for the foregoing payment;
Landlord may revise such estimate and readjust Tenant's payments
accordingly once during each year. Following each calendar year,
Landlord shall prepare an accounting of actual Expenses other
than taxes and
insurance incurred during the prior calendar year and shall
deliver the same to Tenant. If the additional rent paid by Tenant
under this Section 4(b)4 during the preceding calendar year was
less than the actual amount of Tenant's Share of Expenses other
than taxes and insurance, Landlord shall so notify Tenant and
Tenant shall pay the shortfall to Landlord within thirty (30)
days of receipt of such notice; such amount shall be deemed to
have accrued during the prior calendar year and shall be due and
payable from Tenant even if this Lease shall have expired or if
this Lease or Xxxxxx's right of possession shall have been
terminated prior to Xxxxxx's receipt of this notice. If Tenant's
payments were greater than the actual amount of Tenant's Share of
Expenses other than taxes and insurance, then the overpayment
shall be credited by Landlord to Expense payments next due under
this Section 4(b)4. Tenant shall have thirty (30) days from
receipt of the annual accounting notice within which to give
written notice of a disagreement with any item with respect to
the calculation of Xxxxxx's Share of Expenses with respect to the
preceding calendar year; failure to so notify Landlord shall
represent a final determination of Xxxxxx's Share of Expenses
with respect to such calendar year as to any matter not the
subject of such a notice. Tenant shall have the right to review,
at Landlord's place of business, the records which relate to any
item of disagreement covered by such a written notice; in the
event such review proves an improper overcharge of Expenses
(e.g., charges for repair work performed at a different
location), Xxxxxx's sole remedy shall be (a) a credit for the
overcharge, and (b) if the overcharge exceeds $500 in any
calendar year, reimbursement for the reasonable out-of-pocket
costs incurred by Tenant in connection with the review, excluding
attorneys fees except as allowed under Section 28(e) below.
(c) General Rent Provisions. All amounts payable hereunder from Tenant to
Landlord shall be deemed rent. All rent shall be paid by its
respective due date at the address shown in Section 1, or such other
place as Landlord may designate in writing from time to time. All rent
shall be paid without prior demand or notice and without any deduction
or offset whatsoever except only that Tenant shall have the right to
offset against rent the amount of any final judgment obtained by
Tenant against Landlord which is not then subject to appeal or review
or to any unexpired right to appeal or to request review. All rent
shall be paid in lawful money of the United States of America.
Proration of rent due for any partial month shall be calculated by
dividing the number of days in the month for which rent is due by the
actual number of days in that month and multiplying by the applicable
monthly rate.
Tenant acknowledges that late payment by Tenant to Landlord of any
rent or other sums due under this Lease will cause Landlord to incur
costs not contemplated by this Lease, the exact amount of such cost
being extremely difficult and impractical to ascertain. Therefore, if
any rent or other sum due from Tenant is not received within five (5)
days of the date when first due, Tenant shall pay to Landlord an
additional sum equal to 5% of such overdue payment. Landlord and
Tenant hereby agree that such late charge represents a fair and
reasonable estimate of the costs that Landlord will incur by reason of
any such late payment and that the late charge is in addition to any
and all remedies available to the Landlord and that the assessment
and/or collection of the late charge shall not be deemed a waiver of
default. Additionally, all such delinquent rent or other sums, plus
this late charge, shall bear interest at the rate of 12% per annum,
or, if lower, the maximum interest rate permitted by law. If any
payment is returned for insufficient funds, Landlord may require
Tenant to pay all future payments by cashier's check.
5. DEPOSIT. There will be no security deposit.
6. USE OF PREMISES.
(a) Generally. Tenant shall use the Premises solely for the continued
operation of the business of Tenant as previously operated. Tenant may
change such use only with the prior written consent of Landlord; such
consent shall be granted for any lawful and reputable legal use which
(i) is not prohibited hereunder, and (ii) is not in conflict with any
exclusive use right granted by Landlord to another lessee at the
Project.
(b) Compliance. Tenant shall promptly comply, and take all steps necessary
to cause the Premises to comply, with all laws, ordinances, codes,
orders and regulations affecting the Premises, including, without
limitation, those relating to Hazardous Substances, earthquake
preparedness, disabled persons, and/or any elevator or HVAC system;
but only to the extent that work is required by any act, use or other
work of Tenant. Tenant shall not do or permit anything to be done in
or about the Premises or bring or keep anything in the Premises that
will materially increase the risk to the Premises or Landlord. Tenant
shall not conduct nor permit (i) any nuisance, waste, or illegal
activity at the Premises, or (ii) any activity which unreasonably
interferes with the quiet enjoyment of other occupants of the Project.
7. EMISSIONS; STORAGE, USE AND DISPOSAL OF WASTE.
(a) Emissions. Tenant shall not:
(1) Release any air or water pollution from the Premises or the
Project.
(2) Release from the Premises or the Project any liquid, solid or
gaseous matter, or any combination thereof, into the atmosphere,
the ground or any body of water in violation of any law,
ordinance or regulation.
(3) Produce any unreasonable odor, noise, vibration, glare, light or
heat discernible from outside the Premises.
(b) Hazardous Substances.
(1) Generally. Without Landlord's prior written consent, Tenant shall
not bring into the Premises or the Project any "Hazardous
Substance" (except small quantities of cleaning materials or
office supplies which are used and stored in compliance with all
legal requirements, and except substances that Tenant has
previously brought into the Premises or the Project in the
ordinary course of its business). "Hazardous Substance" means (a)
any substance commonly known as such, including, without
limitation, oil, gasoline, or any similar substance, and/or (b)
any substance referred to as such or by any similar designation
in any law or regulation now or hereafter in existence relating
to health or environmental protection or relating to the use,
storage, or disposal of wastes. If Tenant desires to bring into
the Premises or any other portion of the Project any Hazardous
Substance, Tenant shall first obtain Landlord's prior written
consent in each instance, which may be withheld or conditioned by
Landlord in its discretion; any such request shall be accompanied
by a list of the Hazardous Substances and such other information
as Landlord may request.
(2) Release. Tenant shall in all events use and contain any Hazardous
Substances in strict compliance with all laws and shall not allow
any release of the same.
(3) Storage. Tenant shall not store or keep any gasoline or other
fuel or explosive substances within the Premises.
(c) Disposal of Waste.
(1) Refuse Disposal. Tenant shall not keep any trash, garbage, waste
or other refuse on the Premises except in sanitary containers and
shall regularly and frequently remove the same from the Premises.
(2) Sewage Disposal. Tenant shall properly dispose of all sanitary
sewage and shall not use the sewage disposal system for the
disposal of anything except sanitary sewage nor in excess of the
amount which can be accommodated by such system. Tenant shall
keep the sewage disposal system free of all obstructions and in
good operating condition.
(d) Information. Tenant shall provide Landlord with any and all
information regarding Hazardous Substances affecting the Premises in
its possession, including copies of all filings and reports to
governmental entities at the time they are originated, and any other
information reasonably requested by Landlord. In the event of any
accident, spill or other incident involving Hazardous Substances,
Tenant shall immediately report the same to Landlord and shall supply
Landlord with all information and reports with respect to the same.
All information described herein shall be provided to Landlord
regardless of any claim by Tenant that it is confidential or
privileged.
(e) Compliance with Law. Notwithstanding any other provision in this Lease
to the contrary, Tenant shall comply with all laws, statutes,
ordinances, regulations, rules and other governmental requirements
relating to the storage, use and disposal of Hazardous Substances.
Landlord represents that (i) Landlord has received no written notice
from a governmental authority that the handling, transportation,
storage, treatment or use of Hazardous Substances at the Project to
date has not been in compliance with all applicable laws, regulations
and ordinances, and (ii) to its actual knowledge without
investigation, the Project has not been used as a landfill or dump and
no Hazardous Substances have been illegally discharged, deposited, or
dumped at the Project.
(f) Indemnification. Tenant shall defend, indemnify and hold Landlord (as
defined in Section 15) harmless from any loss, claim, liability or
expense (including attorneys' fees, fines, penalties, and
investigation, response, remediation, and response costs), arising out
of or in connection with Xxxxxx's failure to observe or comply with
the provisions of this Section 7.
8. COMPLIANCE WITH LAWS.
(a) Americans with Disabilities Act ("A.D.A.").
(1) Common Areas. Xxxxxxxx agrees to adopt and to pursue a plan
intended to comply with Xxxxxxxx's reasonable interpretation of
the A.D.A. as the same relates to the common areas of the
Project. Notwithstanding the foregoing, if Landlord reasonably
determines that a modification of the common areas may be legally
required under the A.D.A. or similar law or regulation by reason
of the particular activities conducted by Tenant at the Premises,
Landlord shall have the right (but not the obligation) to make
such modification and to perform all work required by reason of
such modification, and all costs incurred by Landlord in so doing
shall be reimbursed by Tenant within ten (10) days following
written notice from Landlord to Tenant. However, Landlord shall
consult with Tenant prior to performing such work and shall
cooperate with Tenant in any efforts which Tenant undertakes to
confirm that such work is not legally required so long as any
such cooperation and any delay to work by Xxxxxxxx does not
subject Landlord to the possibility of legal liability.
(2) Premises. Tenant acknowledges that (a) compliance of the Premises
with the A.D.A. depends upon the uses of the Premises, the
location of each use within the Premises, alterations which
Tenant makes to the Premises, and changes to these factors over
time, and (b) Tenant may have obligations under the A.D.A. as an
employer which may differ from its obligations as the operator of
the Premises. Tenant shall make only such uses of the Premises as
comply with the A.D.A. Xxxxxx agrees, at its expense, to cause
the Premises to comply with the A.D.A., but only to the extent
that work is required by any act, use or other work of Tenant.
Tenant further specifically agrees that, in connection with its
installation of alterations and tenant improvements, Tenant shall
comply with all requirements of the A.D.A. related to the
alterations and tenant improvements, including, but not limited
to, any requirements to improve or modify other portions or
aspects of the Premises or the Project in connection with or as a
result of the alterations or tenant improvements contemplated by
Xxxxxx, all at the expense of Tenant.
(3) Relation To Other Provisions. Nothing in this Section 8(a) shall
expand the rights, nor limit the duties, of Tenant pursuant to
any other Section of this Lease.
(b) Other Laws and Codes. The Premises, the alteration and improvement of
the Premises by Tenant, and the use and occupancy of the Premises by
Tenant, are subject to all applicable laws, codes, regulations, and
approvals. Tenant shall comply with the same and cause the Premises to
comply with the same, at the expense of Xxxxxx. Landlord represents
that Landlord has not received any outstanding uncured written notice
from any governmental authority of any violation of the Premises with
present laws, codes, regulations or approvals; however, Landlord does
not represent that the Premises in fact complies with all applicable
laws, codes, regulations and approvals.
(c) Indemnity. Tenant shall defend, indemnify and hold Landlord (as
defined in Section 15) harmless from any claim or cause of action and
all related costs and expenses (including attorney fees incurred by or
demanded from Landlord) arising out of or related to the failure of
Tenant to perform any obligation under this Section 8.
9. SIGNAGE. Not applicable.
10. PERSONAL PROPERTY TAXES. Tenant shall pay before delinquency all taxes,
assessments, license fees and public charges levied, assessed or imposed
upon operations at the Premises or upon trade fixtures, merchandise and/or
personal property in or about the Premises.
11. PARKING. Tenant shall not allow its employees or visitors (a) to use the
parking areas of the Project other than for transient parking of standard
and compact size cars, nor (b) to park overnight or to park at any time
other than while in the Premises. Landlord reserves the right to assign,
redesign and/or reconfigure parking areas.
12. UTILITIES. Tenant shall pay, as and when due, the cost of phone,
electricity, gas water, sewer and any other utility services provided to
the Premises. Such costs shall be determined by separate metering or
monitoring provided by Landlord when feasible and economical, or by a
reasonable allocation made by Landlord. Tenant shall arrange for and pay
for all garbage service and janitorial service to the Premises.
13. MAINTENANCE.
(a) By Landlord. Landlord shall maintain the existing structural parts of
the Premises, which shall include only the existing foundations,
footings, bearing and exterior walls (excluding glass), concrete slab,
roof (excluding skylight), plumbing and electrical outside of the
Premises, and gutters and downspouts (although Tenant shall be
responsible for keeping the gutters and downspouts of the Premises
clean and unobstructed); provided, however, (a) any costs incurred by
Landlord in such maintenance shall be deemed "Expenses" under Section
4 above unless specifically excluded pursuant to Section 4 above, and
(b) any maintenance or repair to the Premises or any other portion of
the Project necessitated by the activities of Tenant or by the
negligence or excessive use of Tenant shall be reimbursed solely by
Tenant within thirty (30) days of request.
(b) By Tenant. Except as expressly set forth in Section 13(a) above,
Tenant shall, commencing on delivery of possession, maintain in good
condition and repair, at its expense, the entirety of the Premises,
including, but not limited to, all interior walls, floors, and
ceilings, all doors, windows and other glass, all fixtures, and the
plumbing, electrical and HVAC systems. Tenant shall be responsible for
snow and ice removal and shall be responsible for freeze protection of
the water system within the Premises. Landlord shall maintain an HVAC
maintenance and full service contract and Tenant shall reimburse
Landlord for the charges under the same within ten (10) days of
invoicing, and a management and administrative fee equal to ten
percent (10%) of all such charges excluding taxes and insurance
premiums. Upon expiration or termination of this Lease or of Tenant's
right of possession, Xxxxxx shall surrender the Premises to Landlord,
in at least as good a condition as when first delivered to or
constructed by Xxxxxx, excepting ordinary wear and tear and damage due
to casualty.
(c) Special Repairs. Landlord shall, at its cost and without reimbursement
under Section 4(b) above, accomplish the following at such time or
times as Landlord determines necessary: (a) replacement of the roof;
(b) repair of any latent or patent defects in the roof or structural
elements of the Premises existing on the date hereof; and (c)
remediation of any Hazard Substances contamination at the Premises
which is not caused, contributed to, exposed, disturbed nor worsened
by Tenant.
14. ALTERATIONS. The following provisions of this Section 14 govern subsequent
alterations of the Premises.
(a) Project. Tenant shall make no alterations to the Project other than
alterations to the Premises.
(b) Alterations to Premises. Tenant shall make no alterations to the
Premises without first obtaining Landlord's prior written consent,
which prior consent may be withheld or conditioned in Landlord's
discretion; provided (a) no consent shall be necessary for
nonstructural interior alterations costing less than $2,000, and (b)
consent shall not be unreasonably withheld or conditioned for other
nonstructural changes. Any request for consent shall not be deemed
complete until the request is made in writing and is accompanied by
complete plans and specifications for the contemplated work. Tenant
shall obtain all necessary permits prior to commencement of any work
and shall contract with a licensed general contractor reasonably
acceptable to Landlord for construction of the work. Work shall not be
commenced until Tenant has obtained course of construction insurance
satisfactory to Landlord and delivered proof of such insurance to
Landlord. All work shall be prosecuted diligently and shall be
conducted in strict compliance with the approved plans and
specifications and with the applicable permits. Upon completion of the
work, Tenant shall supply to Landlord fully complete and correct "as
built" plans and specifications for the work and satisfactory
government final inspection reports (and certificates of occupancy, if
applicable). Tenant shall also comply with any conditions imposed by
Landlord in connection with Xxxxxxxx's consent as allowed by this
Section.
(c) Payment. Tenant shall pay for all work at the Premises and all
materials delivered to the Premises. Payments shall be made on a
monthly basis, in full, or on such more rapid terms as are part of the
agreement between Tenant and its general contractor. Tenant shall not
allow any lien to be filed or perfected with regard to the Premises,
any portion of the Project, or any interest of Tenant related to this
Lease or the Premises. In the event any such lien is filed or
perfected, Landlord shall have the right, without waiver of the
default nor of any other remedy, to cause such lien to be removed (by
any means, including payment of the underlying claim); however,
Landlord shall give to Tenant at least thirty (30) days written notice
prior to Landlord taking steps to remove any such lien. Tenant shall
defend and indemnify Landlord, the Premises, and the Project against
any lien or other claim with regard to alteration and/or tenant
improvement work, and shall reimburse Landlord for all expenses in
connection with any such lien or claim, including attorney fees.
Landlord shall have the right to post notices of nonresponsibility at
the Premises.
(d) Removal. All alterations and tenant improvements (including all
carpeting, window treatments, and wall coverings), excluding trade
fixtures, shall be deemed a part of the Premises and shall remain on
and be surrendered with the Premises. However, Landlord shall have the
right to elect that certain alterations or tenant improvements remain
the property of Tenant and must be removed by Tenant (and affected
surfaces restored) at the expiration or termination of this Lease or
of Tenant's right of possession. This election must be made by
Landlord at the time Landlord issues its prior written consent to the
applicable alteration or tenant improvement. However, if Xxxxxx fails
to obtain Xxxxxxxx's prior written consent to the particular
alteration or tenant improvement, or if such consent is not required
hereunder, Landlord shall have the right to make this election at any
time within 90 days following the expiration or termination of this
Lease or of Tenant's right of possession.
(e) Exterior Work. Any exterior work, including painting, shall be subject
to the prior written consent of Landlord required by this Section 14.
All exterior painting, exterior sheet metal work, roof work, or work
in the common areas, if approved, shall be performed by Landlord, but
at the expense of Tenant (Landlord may require that Tenant deposit
such expense with Landlord prior to commencement of the work), or, at
the election of Landlord, by Tenant at its expense using contractors
reasonably approved by Landlord. If Tenant requests a change in paint
color on the exterior of the Premises, Landlord shall have
the right to condition approval of the new color upon a change in
color to the balance of the Project, at Xxxxxx's expense.
15. RELEASE AND INDEMNITY.
(a) Generally. Except as provided in Sections 15(b) and 16(e) below,
Xxxxxx agrees that Landlord shall not be liable to Tenant for any
damage to Tenant or Tenant's property or business from any cause, and
Tenant waives all claims against Landlord for damage to persons,
property, or business arising for any reason in, on or about the
Premises. Tenant shall defend, indemnify and hold Landlord harmless
from all damages arising out of any damage to any person, property, or
business occurring in, on or about the Premises, including damage
caused by any act or omission of Tenant, Xxxxxx's use of the Premises,
or Xxxxxx's breach of any term of this Lease. For purposes of this
Section 15(a), and all other release, indemnity, and limitation of
liability provisions of this Lease other than Section 15(b), the term
"Landlord" shall include the Landlord (the originally named Landlord
and all successor lessors), all of Landlord's owners (partners,
members, shareholders, etc.), all of Landlord's agents, all master
lessors and/or ground lessors and the owners and agents of the same,
and all employees and managers of the foregoing.
(b) Landlord Indemnity. Subject to Sections 16(e), 27 and 28(c) below,
Landlord shall indemnify Tenant from any claim asserted against Tenant
to the extent arising out of the negligence of Landlord or out of a
default by Landlord as defined in, but subject to the provisions of,
Section 28(l) below.
16. INSURANCE.
(a) Liability. Tenant, at its cost, shall maintain comprehensive liability
and property damage insurance with a single combined liability limit
of $2,000,000, insuring against all liability of Tenant and its
representatives, employees, invitees, and agents arising out of or in
connection with Xxxxxx's use or occupancy of the Premises. Such
insurance shall insure performance by Tenant of the indemnity
provisions of Section 15, but only to the extent that commercial
liability insurance policies that are customary in the industry
provide such coverage. Landlord shall be named as an additional
insured.
(b) Personal Property and Business Interruption. At its cost, Tenant shall
maintain a policy of standard fire and extended coverage insurance
with vandalism and malicious mischief endorsements and all risk
coverage on all Tenant's personal property and trade fixtures located
at the Premises in an amount equal to at least 90% of their full
replacement value or such higher amount as is necessary to avoid
co-insurance.
(c) Policies. All insurance required to be provided by Tenant under this
Lease (a) shall release Landlord from any claims for damage to any
person, to the Premises, and to Tenant's business, fixtures, personal
property, improvements and alterations in or on the Premises, (b)
shall be issued by an insurance company authorized to do business in
Oregon with a financial rating and a management rating, as rated in
the most recent edition of Best's Insurance Reports, reasonably
acceptable to Landlord, (c) shall be issued as a primary policy, (d)
shall contain an endorsement requiring at least 30 days' prior written
notice to Landlord and Landlord's lender before cancellation,
expiration, or change in coverage, scope or amount of any policy (a
"best efforts" type of notice provision is not acceptable), and (e)
shall have no deductible greater than $5,000. Tenant shall deliver a
certificate or copy of each such policy, together with evidence of
payment of all current premiums, to Landlord upon execution of this
Lease and at least thirty (30) days prior to the scheduled expiration
date of any such policy. Tenant's failure to maintain any insurance
coverage
required hereunder or to provide evidence of such coverage to Landlord
shall constitute a default under this Lease.
(d) Landlord's Insurance. Landlord shall maintain such casualty,
liability, rent loss, and other insurance regarding the Project as
Landlord deems appropriate from time to time. The costs of such
insurance (including premiums and deductibles) shall be deemed
"Expenses" under Section 4(b) above. Such insurance shall include, at
a minimum, comprehensive liability insurance with a combined single
limit of at least $2,000,000 covering claims arising in the common
areas of the Project and extended coverage fire and casualty insurance
(including earthquake) on a replacement cost basis with rent loss
coverage in an amount selected by Landlord but which is sufficient to
avoid co-insurance. Tenant shall be named as an additional insured on
Landlord's liability policy. Landlord shall deliver a certificate of
insurance to Tenant upon annual request.
(e) Waiver of Subrogation. Anything in this Lease to the contrary
notwithstanding, Landlord and Tenant each hereby waives any and all
rights of recovery, claims, and causes of action against the other and
its agents (including partners, both general and limited), officers,
directors, shareholders and employees for any loss or damage that may
occur to the Premises or any improvements thereto, the Project, or any
improvements thereto, or any property of such party therein, by reason
of fire, the elements, or any other cause which could be insured
against under the terms of a fire and extended coverage insurance
policy, regardless of cause or origin, including negligence of the
other party hereto, its agents, officers, or employees, and each party
covenants that no insurer shall hold any right of subrogation against
such other party.
17. DESTRUCTION.
(a) Project. Damage to or destruction of portions of the Project other
than the Premises shall not affect the rights and obligations of the
parties under this Lease.
(b) Premises. If a casualty occurs at the Premises, Landlord shall have
the right to terminate this Lease by written notice given within 60
days of such casualty in the event (a) Landlord estimates that the
cost of restoration necessitated by such casualty (including the cost
of all work which must be undertaken in connection with the
restoration) shall exceed 50% of the then replacement cost of the
building in which the Premises are located, (b) Landlord estimates
that the uninsured portion of such restoration cost exceeds $250,000,
or (c) the term of this Lease is then scheduled to expire within one
(1) year following the date of the casualty. In the event Landlord
terminates this Lease pursuant to this Section 17(b), the termination
shall be without liability to Landlord, and Tenant shall vacate the
Premises within thirty (30) days of receipt of the termination notice.
In all other instances, following a casualty, Landlord shall proceed
with reasonable diligence to restore the damaged portions of the
Premises to approximately their condition prior to the casualty.
Tenant acknowledges that the restoration may not produce an exact
recreation of the former condition of the Premises, since laws, codes,
and site conditions may require some variation from the previous
Premises to the restored Premises.
(c) No Claim. Tenant shall have no claim against Landlord for any damage
suffered by reason of any damage or destruction. Rent shall be abated
by reason of damage or destruction to the Premises to the extent and
so long as Tenant is unable to use the same for the conduct of its
business.
18. CONDEMNATION. In the event the entirety of the Premises is taken by eminent
domain, this Lease shall terminate as of the earlier that title or the
right of possession passes to the condemning authority. If a part of the
Premises is so taken, this Lease shall terminate as to the part so taken as
of
the earlier of the passing of possession or title to the condemning
authority, and this Lease shall remain in full force and effect as to the
portion of the Premises not so taken, except that Base Monthly Rent shall
be reduced to the same proportion that the area of the remaining Premises
bears to the area of the entire Premises immediately prior to such taking,
and Landlord shall perform any necessary restoration work; provided,
however, (a) Landlord shall have the right to terminate this Lease due to
such partial taking by ten (10) days' written notice given within ninety
(90) days of the passage of title or possession, and (b) in the event the
remaining Premises are unsuitable for use by Tenant, then Tenant shall have
the right to terminate this Lease by ten (10) days' written notice given
during such ninety (90) day period. Any award for the taking of all or any
part of the Premises shall be the sole and exclusive property of Landlord
and Tenant shall not have the right to participate in the condemnation
proceedings. However, Tenant shall be entitled to any award for relocation
benefits or for the loss of tangible personal property owned by Xxxxxx, so
long as the same does not reduce the award otherwise payable to Landlord.
19. ASSIGNMENT OR SUBLEASE.
(a) Assignment or Subletting. Tenant shall not assign its interest in this
Lease or the Premises or sublease all or any part of the Premises or
allow any other person or entity to occupy or use all or any part of
the Premises nor to operate a concession at the Premises without first
obtaining Landlord's written consent. Xxxxxxxx's prior written consent
to an assignment, sublease, or occupancy/concession shall not be
unreasonably withheld, but may be issued subject to conditions. One
such condition may be payment of a reasonable security deposit. Any
request for consent shall be complete only upon delivery to Landlord
of all information requested by Landlord to evaluate a request for
such consent. Any assignment, sublease, or occupancy/concession
without Landlord's written consent shall be voidable and, at
Landlord's election, shall constitute a default.
(b) Ownership Changes. If Tenant is a partnership, a withdrawal or change,
voluntary, involuntary, or by operation of law, of any partner, or the
dissolution of the partnership, shall be deemed a voluntary
assignment. If Tenant consists of more than one person, a purported
assignment, voluntary or involuntary or by operation of law from one
person to the other shall be deemed a voluntary assignment. If Tenant
is a corporation or limited liability company, any dissolution, merger
(upstream or downstream), consolidation, or other reorganization of
Tenant, or sale or other transfer of a controlling percentage of the
capital stock (or membership interest) of Tenant other than with
Portland Brewing Company or any subsidiary or other affiliate of
Portland Brewing Company, or the sale of at least 50% of the value of
the operating assets of Tenant to any person other than to Portland
Brewing Company or any subsidiary or other affiliate of Portland
Brewing Company shall be deemed a voluntary assignment. The phrase
"controlling percentage" means ownership of and right to vote stock or
membership interests possessing at least 25% of the total combined
voting power of any class of equity securities (e.g., stock or
membership interests) issued and outstanding. The preceding two
sentences shall not apply to the sale of stock by or of corporations
the stock of which is publicly traded through an exchange; a public
offering of the stock of a corporate Tenant shall not be deemed an
assignment.
(c) Portland Brewing Company Transfer. Notwithstanding the foregoing,
Tenant shall have the right to assign this Lease or to sublet a
portion of the Premises to Portland Brewing Company or any subsidiary
or other affiliate of Portland Brewing Company. Tenant shall give to
Landlord at least thirty (30) days prior written notice of any such
sublease, and shall comply with such conditions as are requested by
Landlord in connection with such sublease.
(d) Involuntary Assignment. No interest of Tenant in this Lease shall be
assignable by involuntary assignment through operation of law
(including without limitation the transfer of this Lease by testacy or
intestacy). Each of the following acts shall be considered an
involuntary assignment: (i) if Tenant is or becomes insolvent, (ii) if
Tenant makes an assignment for the benefit of creditors, or if Tenant
becomes a debtor in a case under the Bankruptcy Act (or if Tenant is a
partnership or consists of more than one person or entity, if any
partner of the partnership or other such person or entity is the
debtor), (iii) if a writ of attachment or execution is levied on this
Lease; or (iv) if, in any proceeding or action to which Xxxxxx is a
party, a receiver is appointed with authority to take possession of
the Premises. An involuntary assignment shall constitute a default by
Xxxxxx, and Landlord shall have the right to elect to terminate this
Lease, in which case this Lease shall not be treated as an asset of
Tenant.
(e) Termination. In the event this Lease expires or is terminated, or
Landlord terminates the right of possession of Tenant, all
subtenancies of the Premises shall terminate at that time, or at the
election of Landlord, one or more of such subtenancies shall continue
but with the lessor's interest in the same being deemed assigned to
Landlord; provided, however, that Landlord shall have no obligation,
and Tenant shall continue to be liable, with respect to any prepaid
amounts, security deposits, and acts or omissions by Tenant which
occurred or relate to the period prior to the deemed assignment of
such a subtenancy to Landlord.
(f) Payment. Whether or not consent is granted, and in cases where consent
is not required but prior notice and compliance with conditions is
required, Tenant shall reimburse Landlord for all costs incurred by
Landlord in connection with the assignment, sublease or concession up
to a maximum reimbursement of $1,000.
(g) Encumbrances. Tenant shall not, voluntarily or involuntarily, create
nor allow any lien, encumbrance or security interest to arise, be
filed or be perfected against the Premises, any improvements or
alterations, or the lessee's interest in this Lease.
20. DEFAULT. The occurrence of any of the following shall constitute a default
by Tenant: (a) a failure to pay rent or other charge within five (5) days
of written notice that the same is due but unpaid (provided, only one such
written notice need be given in any calendar year and failure to pay any
rent or other charge thereafter in such calendar year within five (5) days
of when due shall be a default without the need for any such written
notice); (b) failure to perform any other provision of this Lease within
ten (10) days of written notice of such failure (although no such written
notice shall be required for a failure if a failure of the same nature has
already occurred under this Lease); (c) Tenant becomes insolvent; (d)
Tenant becomes a debtor in a bankruptcy proceeding; or (e) any guarantor of
this Lease fails to perform any obligation under its guaranty, any such
guarantor attempts to revoke its guaranty, any such guarantor becomes
insolvent, any such guarantor dissolves or otherwise ceases to exist, any
such guarantor becomes a debtor in a bankruptcy proceeding, or any such
guarantor fails to perform any obligation under its guaranty.
21. LANDLORD'S REMEDIES.
(a) Generally. Landlord shall have the following remedies if Tenant is in
default of the Lease. These remedies are not exclusive; they are
cumulative and in addition to any remedies now or later allowed by
law. Landlord may terminate this Lease and/or Xxxxxx's right to
possession of the Premises at any time. No act by Landlord other than
giving notice to Tenant shall terminate this Lease. Acts of
maintenance, efforts to relet the Premises, or the appointment of a
receiver on Landlord's initiative to protect Xxxxxxxx's interest under
this Lease shall not constitute a termination of Tenant's right to
possession.
(b) Damages. Upon termination of this Lease or of Tenant's right to
possession, Landlord has the right to recover from Tenant: (i) the
worth of the unpaid rent that had been earned at the time of
termination; (ii) the worth of the amount of the unpaid rent that
would have been earned after the date of termination less the worth of
replacement rent that could be earned by Landlord; and (iii) any other
amount, including but not limited to expenses incurred to relet the
Premises, court, attorney, and collection costs, necessary to
compensate Landlord for all detriment caused by Xxxxxx's default. "The
Worth," as used in item (i) in this Section 21, is to be computed by
allowing interest at the rate of 12 percent per annum or, if lower,
the maximum interest rate permitted by law. "The Worth" as used in
item (ii) in this Section 21, is to be computed by discounting the
amount at the discount rate of the Federal Reserve Bank of San
Francisco at the time of termination of Tenant's right of possession.
"Unpaid rent" shall include Base Monthly Rent and Expenses. Nothing in
this Section shall limit any obligation imposed by Oregon law upon
Landlord to mitigate its damages.
(c) Performance by Landlord. All covenants and agreements to be performed
by Tenant under this Lease shall be performed by Tenant at its sole
cost and expense and without any offset against rent. If Tenant shall
fail to pay any sum of money owed to any party other than Landlord for
which it is liable hereunder, or if Tenant shall fail to perform any
other act on its part to be performed hereunder, Landlord may, without
waiving such default or any other right or remedy, but shall not be
obligated to, make any such payment or to perform any such other act
to be made or performed by Tenant. All sums so paid by Xxxxxxxx, and
necessary incidental costs, together with interest thereon at the rate
specified hereinabove from the date of expenditure by Landlord, shall
be payable to Landlord on demand.
22. ENTRY ON PREMISES. Landlord and its authorized representatives shall have
the right to enter the Premises at all reasonable times for any of the
following purposes: (a) to determine whether the Premises are in good
condition and whether Tenant is complying with its obligations under this
Lease; (b) to show the Premises to lenders, brokers, or persons interested
in leasing or purchasing the Premises, or (c) to perform work, maintenance
or repairs or to take steps to protect Landlord's interests. All entries
outside of normal business hours shall be preceded by notice to Tenant
except in cases of emergency. Landlord shall not be liable in any manner
for any inconvenience, disturbance, loss of business, nuisance or other
damage arising out of Landlord's entry onto the Premises nor shall any
entry be deemed an eviction. In an emergency, Landlord may enter by any
means deemed necessary. Tenant shall not be entitled to an abatement or
reduction of rent if Landlord exercises any rights reserved in this Section
22. Landlord shall use reasonable efforts to limit the duration and degree
of any disturbance caused to Tenant by entry onto the Premises by Landlord.
23. SUBORDINATION. Without the necessity of any additional document being
executed by Tenant for the purpose of effecting a subordination, and at the
election of Landlord or any mortgagee or any beneficiary of a Deed of Trust
with a lien on the Premises or any ground lessor with respect to the
Premises, this Lease shall be subject and subordinate at all times to (a)
all ground leases or underlying leases which may now exist or hereafter be
executed affecting the Premises, and (b) the lien of any mortgage or deed
of trust which may now exist or hereafter be executed in any amount for
which the Premises, ground leases or underlying leases, or Landlord's
interest or estate in any of said items is specified as security; provided,
however, no default by Landlord under any such mortgage or other security
instrument shall affect Tenant's rights under this Lease, so long as Tenant
pays and performs all of its obligations hereunder. In the event that any
ground lease or underlying lease terminates for any reason or any mortgage
or Deed of Trust is foreclosed or a conveyance in lieu of foreclosure is
made for any reason, Tenant shall, notwithstanding any subordination,
attorn to and become the Tenant of the successor in interest to Landlord.
Tenant covenants and agrees to execute and deliver, upon request by
Xxxxxxxx and in the form reasonably requested by Xxxxxxxx
any additional documents evidencing the priority or subordination of this
Lease with respect to any such ground lease or underlying leases or the
lien of any such mortgage or Deed of Trust so long as any subordination
agreement required by such a ground lessor or lender includes a provision
to the effect that, so long as Tenant performs all of its obligation
hereunder, the rights of Tenant hereunder shall not be disturbed.
Tenant, within twenty days of request from Landlord from time to time,
shall execute and deliver to Landlord a certificate stating that this Lease
is not in default (or specifying the defaults), and is in full force and
effect without modification (or stating the modifications). This
certificate shall also state the amount of current monthly rent, the dates
to which rent has been paid in advance, and the amount of any security
deposit and prepaid rent, and such other factual matters as are reasonably
requested. Failure to deliver this certificate to Landlord within twenty
days shall entitle Landlord, without waiver of the default or of other
remedies, to issue an estoppel certificate supplying the requested
information to Landlord's knowledge; a copy of the same shall be delivered
to Tenant, and Tenant shall be estopped to deny the matters set forth in
such estoppel certificate.
24. NOTICE. Any notice under this Lease shall be in writing and shall be either
hand delivered, sent by overnight courier, sent by facsimile with hard copy
by regular mail, or sent by mailed notice meaning prepaid certified first
class mail, return receipt requested, addressed as set forth in Section 1.
Notice shall be deemed to be communicated upon hand delivery, facsimile
transmission, delivery by overnight courier, or three (3) days following
such deposit of mailed notice. Either party may change its address by such
a written notice to the other party. As a courtesy, each party shall
simultaneously send a copy of any notice given hereunder also to the last
known attorney of the other party, but failure to do so shall not affect
the rights of the party giving the notice nor invalidate any notice given.
25. WAIVER. No delay or omission in the exercise of any right or remedy by
Landlord shall impair such right or remedy or be construed as a waiver. No
act or conduct of Landlord, including without limitation acceptance of the
keys to the Premises, shall constitute an acceptance of the surrender of
the Premises by Tenant before the expiration of the term. Only written
notice from Landlord to Tenant shall constitute acceptance of the surrender
of the Premises and accomplish termination of the Lease. Xxxxxxxx's consent
to or approval of any act by Tenant requiring Landlord's consent or
approval shall not be deemed to waive or render unnecessary Landlord's
consent to or approval of any subsequent act by Xxxxxx. Any waiver by
Landlord of any default may be proved and established only by a writing
signed by Landlord expressly setting forth the waiver. No waiver by
Landlord of a default shall be a waiver of any other default concerning the
same or any other provision of the Lease.
26. SURRENDER OF PREMISES; HOLDING OVER. Upon the expiration of this Lease or
the sooner termination of this Lease or of Tenant's right of possession,
Tenant shall (a) surrender the Premises to Landlord in accordance with
Section 14 above, and (b) remove all of its personal property which is not
then encumbered by a lien asserted by Landlord. Tenant waives all claims
against Landlord for any damage to personal property not so removed and
Tenant shall be liable to Landlord for Landlord's cost for storage,
removal, or disposal of such personal property.
If Tenant remains in possession of the Premises after such expiration or
termination, or after the date in any notice given by Landlord to Tenant
terminating this Lease or Tenant's right of possession, in either case
without a written extension agreement being executed by Landlord and
Xxxxxx, then, without waiver of the right of summary eviction, such
possession by Tenant shall be a tenancy at sufferance terminable on written
notice at any time, by either party. All provisions of this Lease, except
those pertaining to term and rent, shall apply to the tenancy. Tenant shall
pay Base Monthly Rent, prorated daily, at the rate of 125% of Base Monthly
Rent for the last full rent paying calendar month during the regular term,
plus 100% of Expenses pursuant to Section 4(b).
27. LIMITATION OF LIABILITY. The liability of Landlord upon any claim made by
Tenant related to this Lease, or otherwise related to the Premises or
Project (for breach of this Lease, in tort, for statutory liability, or
otherwise) is expressly limited to the interest of Landlord in the Project,
and Tenant shall have no recourse to any other assets of Landlord. In
addition, and without limiting the effect of the foregoing, in the event
Landlord is a limited liability company, joint venture, partnership or
co-tenancy, then (a) the sole and exclusive remedy of Tenant shall be
against the limited liability company, joint venture, partnership or
co-tenancy and its assets, and (b) no member, venturer, partner or
co-tenant (nor any owner or agent of the same) shall be sued by Tenant or
named as a party in litigation by Tenant, and no judgment may be taken or
enforced by Xxxxxx against any such member, venturer, partner or co-tenant
(nor any owner or agent of the same). In no event whatsoever shall any
claim be made against any ground lessor or master lessor of the Premises.
28. MISCELLANEOUS PROVISIONS.
(a) Time of Essence. Time is of the essence of each provision of this
Lease.
(b) Successor. This Lease shall be binding on and inure to the benefit of
the parties and their successors.
(c) Landlord's Consent. Any consent required by Landlord under this Lease
shall be valid only if granted in writing and, unless otherwise
specifically provided herein, may be withheld or conditioned by
Landlord in its sole and absolute discretion. In no event shall Tenant
have the right to terminate this Lease, and in no event shall Landlord
be liable for monetary damages, based upon a claim arising from the
withholding or conditioning of consent; the sole remedy of Tenant for
any alleged improper withholding or conditioning of consent shall be a
court order requiring Landlord to grant the requested consent on terms
ordered by the court.
(d) Commissions. Each party represents that no commission is owed to any
real estate broker, finder, or other person with respect to this
Lease.
(e) Attorney Fees and Costs. In the event of litigation arising out of or
in connection with the Lease, the prevailing party shall be entitled
to recover from the other party reasonable attorney's fees and costs
incurred at and in preparation for trial and any appeal or review, as
well as in bankruptcy proceedings and/or arbitration proceedings. If
Landlord employs a collection agency to recover delinquent charges,
Xxxxxx agrees to pay all collection agency and attorneys' fees charged
to Landlord in addition to rent, late charges, interest, and other
sums payable under this Lease.
(f) Landlord's Successors. In the event of a sale or other conveyance by
Landlord of the Premises, the same shall operate to release the
conveying Landlord from any later arising liability under this Lease,
and, in such event, Xxxxxxxx's successor in interest shall be solely
responsible for all such obligations under this Lease. Similarly, no
succeeding Landlord shall be in any way liable for claims which arise
prior to conveyance of the Premises to such successor.
(g) Interpretation. This Lease shall be construed and interpreted in
accordance with the laws of the state of Oregon. Each party has had
the full opportunity to have this Lease reviewed by such attorneys and
others as each such party deems fit; this Lease shall not be construed
strictly nor adversely against Landlord by reason of the same having
been initially drafted by the attorneys for Landlord. This Lease
constitutes the entire agreement between the parties with respect to
the Premises and may be amended only by a written document signed by
both Landlord and Xxxxxx. When required by the context of this Lease,
the
singular shall include the plural, and the masculine shall include the
feminine and/or neuter. "Party" shall mean Landlord or Tenant. If more
than one person or entity constitutes Tenant, the obligations imposed
upon that party shall be joint and several; if Tenant consists of or
includes a partnership, all partners shall be jointly and severally
liable. In the event any provision hereof is held to be void or
unenforceable as written, the parties intend and desire that (i) such
provision be enforced to the fullest extent allowed by law, (ii) if
necessary, a court reform the provision to allow for such enforcement,
and (iii) the balance of this Lease remain fully enforceable.
(h) Survival. The indemnity, release, limitation of liability, and
attorneys fees provisions hereof shall survive the expiration or
termination of this Lease or other Tenant's right of possession. No
such expiration or termination shall relieve Tenant from any liability
hereunder.
(i) Relationship; No Joint Venture or Partnership. The relationship of
Landlord and Xxxxxx is only that of a lessor and a lessee; no other
relationship (such as a partnership, joint venture or agency
relationship) is intended nor created hereby.
(j) Lease Memorandum. At the request of Xxxxxx, Xxxxxxxx shall execute a
recordable memorandum of this Lease. Upon request at or after the
expiration or termination of this Lease or of Tenant's right of
possession, Tenant shall execute and deliver to Landlord a Quitclaim
Deed which Landlord may record to remove such memorandum of lease.
(k) Landlord Obligations. Landlord shall pay the property taxes assessed
against the Project prior to foreclosure of the same for delinquency.
Landlord represents to Tenant that it has full right and power to
execute this Lease, to perform its obligations hereunder, and to grant
the estate demised herein. Subject to the provisions hereof, Landlord
covenants that, so long as Tenant fully and timely performs all of its
obligations hereunder, Tenant shall have possession of the Premises
free from eviction by Landlord or those claiming through Landlord
(including Xxxxxxxx's lenders), subject to acts of government and the
provisions of this Lease.
(l) Landlord Default. Landlord shall not be deemed in default of this
Lease unless and until Landlord shall have failed to perform any of
its obligations set forth in this Lease and such failure shall have
continued for thirty (30) days following the giving by Tenant of
written notice to Landlord specifying the failure; provided, however,
in the event more than thirty (30) days is reasonably required to cure
such failure, Landlord shall not be deemed in default hereunder if
Landlord commences cure within such thirty (30) day period and
thereafter pursues cure to completion. In the event of a Landlord
default, Tenant shall be entitled to collect its actual damages
arising from such default, but consequential and incidental damages
are hereby waived. Upon the failure of Landlord to pay any taxes or
assessments which are liens against the Premises prior to foreclosure
of the same, and the continuance of such failure following the
expiration of the applicable notice and cure period, Tenant shall have
the right to pay such taxes and related charges to cure such default
on behalf of and at the expense of Landlord, and the amount so paid
shall be reimbursed to Tenant by Landlord within thirty (30) days
after written demand, with interest thereon at the rate of 12 percent
per annum. Further, in the event of a failure by Landlord to perform
any of its maintenance obligations under Section 13 above, and the
continuance of such failure following the expiration of the applicable
notice and cure period, Tenant shall have the right to perform all
necessary work on behalf of and at the expense of Landlord, and the
necessary cost of such work shall be paid to Tenant by Landlord within
thirty (30) days after written demand, with interest thereon at 12
percent per annum, so long as Tenant provides to Landlord evidence of
the performance of such work, evidence of payment in full for such
work, and evidence of lien waivers from all
contractors who performed any such work or who would otherwise have
the right to claim a lien by reason of such work; any such work
undertaken by Tenant shall be undertaken in compliance with the
provisions of Section 14 above. Tenant shall have no right to
terminate this Lease based upon a default by Landlord unless such
default materially interferes with the ability of Tenant to continue
to conduct its business at the Premises for at lease thirty (30)
consecutive days. Nothing in this Section 28(l) shall limit the
operation of Sections 27 and 28(c).
(m) Quiet Enjoyment. So long as Tenant pays and performs in full, as and
when due, all obligations of Tenant hereunder, Landlord covenants that
Tenant shall have possession of the Premises, subject to the terms and
provisions of this Lease, the rights of Landlord under this Lease, and
all acts and requirements of governmental authority.
LANDLORD: MACTARNAHAN LIMITED PARTNERSHIP
By: XXXXXX MILL & LOGGING SUPPLY CO., a
corporation, general partner
By: /s/ X. XXXXX XXXXXXXXXXX
Its: VICE PRESIDENT
TENANT: HARCO PRODUCTS, INC., an Oregon corporation
By: /s/ XXXXXXX X. XXXXX
Its: President and Chief Executive Officer
Exhibits
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A - Premises and Project
