SUBLEASE
Dated Effective: August 15, 1999
Between: FIRST TECHNOLOGY CREDIT UNION, a
credit union chartered by the State of Oregon ("Sublessor")
And: CORILLIAN CORPORATION, an Oregon
corporation ("Sublessee")
RECITALS
A. Sublessor is the lessee under a Lease dated March 8, 1998
(the "Master Lease"), wherein Northwest Development Co., an Oregon general
partnership ("Northwest") leased to Sublessor the real property, including a
building and parking lot, located at 0000 XX 000xx Xxxxx in the City of
Beaverton, County of Washington, State of Oregon (the "Premises").
B. Northwest and Sublessor amended the Master Lease by a First
Amendment to Lease dated March 15, 1988 (the "First Amendment"); a Second
Amendment to Lease dated May 1, 1988 (the "Second Amendment"); and a Third
Amendment to Lease dated March 1, 1989 (the "Third Amendment").
C. On or about August 14, 1990, Northwest sold the Premises,
and assigned its interest in the Master Lease, to Xx. Xxxxxx X. X. Xxxxx and
Xxxx Sun Xxxxx ("Lessor).
X. Xxxxxx and Sublessor amended the Master Lease by a Fourth
Amendment to Lease dated May 1, 1997 (the "Fourth Amendment"); a Sixth
Amendment to Lease dated November 10, 1997 (the "Sixth Amendment"); and a
Seventh Amendment to Lease dated February 11, 1998 (the "Seventh Amendment").
There was no "Fifth Amendment" to the Master Lease. Lessor and Sublessor also
amended the Master Lease by an Extension Agreement dated June 5, 1998 (the
"First Extension"); a Second Extension Agreement dated July 2, 1998 (the
"Second Extension"); and a Third Extension Agreement dated August 5, 1998
(the "Third Extension").
E. References herein to the Master Lease shall include the
First, Second, Third, Fourth, Sixth and Seventh Amendments, as well as the
First, Second and Third Extensions, where the context requires. The Master
Lease and the Second and Third Amendments are attached hereto as Exhibit A.
PAGE 1
AGREEMENT
Therefore, in consideration of the Premises, the parties agree as
follows:
1. RECITALS. The above Recitals are true and correct and
incorporated herein by this reference.
2. PREMISES. Sublessor hereby subleases the Premises to
Sublessee on the terms and conditions set forth in this Sublease. By taking
possession of the Premises, Sublessee acknowledges that it has inspected the
Premises and accepts them as being in the condition in which Sublessor is
obligated to deliver them and otherwise in good working order, condition and
repair, "AS IS" and WTH ALL FAULTS." Sublessor shall have no obligation to
alter, remove, improve, repair, decorate, or paint the Premises or any part
thereof. Sublessee acknowledges that Sublessor has not made and will not make
any warranties to Sublessee with respect to the quality of construction of
any leasehold improvements or tenant finish within the Premises or as to the
condition of the Premises, either express or implied, and that Sublessor
expressly disclaims any implied warranty that the Premises are or will be
suitable for Sublessee's intended commercial purposes. Except as otherwise
provided herein or in the Master Lease, Sublessee's obligation to pay rentals
under this Sublease is not dependent upon the condition of the
Premises or the performance by Lessor of its obligations under the
Master Lease, and Sublessee will continue to pay the rentals due hereunder
without abatement, setoff or deduction notwithstanding any breach by
Sublessor of its duties or obligations hereunder, or by Lessor of its duties
or obligations under the Master Lease, whether express or implied. Any
dispute between Sublessee and Sublessor as to whether the latter has breached
its obligations under this Sublease with respect to the condition of the
Premises shall be resolved by arbitration as set forth in Section 21.
3. WARRANTY BY SUBLESSOR. Sublessor warrants and represents to
Sublessee that the Master Lease has not been amended or modified except as
expressly set forth herein, that Sublessor is not now, and as of the
commencement of the Term hereof will not be, in default or breach of any of
the provisions of the Master Lease, and that Sublessor has no knowledge of
any claim by Lessor that Sublessor is in default or breach of any of the
provisions of the Master Lease.
4. TERM.
4.1 COMMENCEMENT AND EXPIRATION. The Term of this
Sublease shall commence on August _, 1999 ("Commencement Date"), or when
Lessor consents to this Sublease, whichever shall last occur, and end on
December 31, 2000
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("Expiration Date"), unless otherwise sooner terminated in accordance with
the provisions of this Sublease. In the event the Term commences on a date
other than the Commencement Date, Sublessor and Sublessee shall execute a
memorandum setting forth the actual date of commencement of the Term.
4.2 POSSESSION. Possession of the Premises
("Possession") shall be delivered to Sublessee on the commencement of the
Term. If for any reason Sublessor does not deliver Possession to Sublessee on
the commencement of the Term, Sublessor shall not be subject to any liability
for such failure, the Expiration Date shall not be extended by the delay, and
the validity of this Sublease shall not be impaired, but rent shall xxxxx
until delivery of Possession. If, however, Sublessor has not delivered
Possession to Sublessee within thirty (30) days after the Commencement Date,
then at any time thereafter and before delivery of Possession, Sublessee may
give written notice to Sublessor of Sublessee's intention to cancel this
Sublease. Said notice shall set forth an effective date for such cancellation
which shall be at least ten (10) days after delivery of said notice to
Sublessor. If Sublessor delivers Possession to Sublessee on or before such
effective date, this Sublease shall remain in full force and effect. If
Sublessor fails to deliver Possession to Sublessee on or before such
effective date, this Sublease shall be canceled, in which case all
consideration previously paid by Sublessee to Sublessor on account of this
Sublease shall be returned to Sublessee, this Sublease shall thereafter be of
no further force or effect, and Sublessor shall have no further liability to
Sublessee on account of such delay or cancellation.
4.3 HOLDOVER. Any holding over after the expiration of
the term of this Sublease with the written consent of Sublessor shall be a
tenancy from month to month. The terms, covenants and conditions of such
tenancy shall be the same as provided herein. Acceptance by Sublessor of Rent
after such expiration shall not result in any other tenancy or any renewal of
the term of this Sublease, and the provisions of this Section are in addition
to and do not affect Sublessor's right of re-entry or other rights provided
under this Sublease or by applicable law. If Sublessee shall retain
possession of the Premises or any part thereof without Sublessor's consent
following the expiration or sooner termination of this Sublease for any
reason, then Sublessee shall pay to Sublessor for each day of such retention
one hundred fifty percent (150%) of the amount of the daily Rent for the last
period prior to the date of such expiration or termination. Sublessee shall
also indemnify and hold Sublessor harmless from Sublessor's actual damages
resulting from delay by Sublessee in surrendering the Premises, including,
without limitation, any claims made by any succeeding tenant founded on such
delay. Alternatively, if Sublessor gives notice to Sublessee of Sublessor's
election thereof, such holding over shall constitute renewal of this Sublease
for a period from month to month. Acceptance of Rent by Sublessor
PAGE 3
following expiration or termination shall not constitute a renewal of this
Sublease, and nothing contained in this Section shall waive Sublessor's right
of re-entry or any other right. Unless Sublessor exercises the option hereby
given to it, Sublessee shall be only a tenant at sufferance, whether or not
Sublessor accepts any Rent from Sublessee while Sublessee is holding over
without Sublessor's written consent.
5. RENT
5.1 MONTHLY RENT. Sublessee, shall pay to Sublessor as
"Rent," without deduction, setoff, notice, or demand, at 0000 XX 000xx Xxxxx,
Xxxxxxxxx, Xxxxxx 00000 or at such other place as Sublessor shall designate
from time to time by notice to Sublessee, the sum of Twenty-Five Thousand and
No/1 00 Dollars ($25,000) per month, in advance on the first day of each
month of the Term; provided, however, that Sublessee shall not be obligated
to pay Sublessor any Rent from the Commencement Date through September 30,
1999. If the Term ends on a day other than the first or last day of a month,
the rent for the partial month shall be prorated on a per them basis.
5.2 OPERATING COSTS. Sublessee, at Sublessee's
expense, shall contract and pay for all janitorial service for the interior
of the Premises. Sublessor shall pay all other expenses of maintaining and
operating the Premises required under the Master Lease, including but not
limited to taxes, utilities, and insurance.
6. SECURITY DEPOSIT. Sublessee shall deposit with Sublessor
upon execution of this Sublease the sum of Twenty-Five Thousand and No/1 00
Dollars ($25,000) as security for Sublessee's faithful performance of
Sublessee's obligations hereunder ("Security Deposit"). If Sublessee fails to
pay rent or other charges when due under this Sublease, or fails to perform
any of its other obligations hereunder, Sublessor may use or apply all or any
portion of the Security Deposit for the payment of any rent or other amount
then due hereunder and unpaid, for the payment of any other sum for which
Sublessor may become obligated by reason of Sublessee's default or breach, or
for any loss or damage sustained by Sublessor as a result of Sublessee's
default or breach. If Sublessor so uses any portion of the Security Deposit,
Sublessee shall, within ten (10) days after written demand by Sublessor,
restore the Security Deposit to the full amount originally deposited, and
Sublessee's failure to do so shall constitute a default under this Sublease.
Sublessor shall not be required to keep the Security Deposit separate from
its general accounts, and shall have no obligation or liability for payment
of interest on the Security Deposit. In the event Sublessor assigns its
interest in this Sublease, Sublessor shall deliver to its assignee so much of
the Security Deposit as is then held by Sublessor. Provided Sublessee is not
then in default of any of its obligations hereunder, the Security Deposit or
so much thereof as
PAGE 4
had not theretofore been applied by Sublessor as permitted herein, shall be
applied to Rent for the last month of the Term of this Sublease.
7. USE AND MAINTENANCE OF PREMISES. The Premises shall be used
and occupied only for general office purposes typical of Class A buildings
and telecommunications operations consistent therewith, and for no other use
or purpose. Sublessee shall not use or allow the Premises to be used for any
improper, immoral or unlawful purpose, nor shall Sublessee cause or maintain
or permit any nuisance in, on, or about the Premises. Sublessee shall, at all
times during the term hereof at Sublessee's sole cost and expense, keep the
following items in good order, condition and repair: (i) floor coverings,
(ii) wall coverings, (iii) paint, (iv) casework, (v) ceiling tiles, and (vi)
all of Sublessee's personal property. Sublessor shall maintain the
mechanical, HVAC, plumbing and electrical equipment serving the building, and
the structure itself, except for damage occasioned by the act of the
Sublessee, which damage shall be repaired by Sublessor at Sublessee's expense.
8. BUILDING SERVICES.
8.1 UTILITIES. Subject to the provisions elsewhere
herein contained, Sublessor agrees to furnish to the Premises (i) heat and
air-conditioning customarily furnished in comparable buildings in Beaverton,
Oregon, for the comfortable use and occupation of the Premises from 7:00 A.M.
to 6:00 P.M. on weekdays, and 8:00 A.M. to 1:00 P.M. on Saturdays exclusive
of legal holidays, (ii) continuous water and electricity service suitable for
the intended use of the Premises, and (iii) continuous elevator service which
shall mean service by unattended automatic elevators. Sublessor shall provide
additional or after-hours heating or air-conditioning at Sublessee's request,
and Sublessee shall pay to Sublessor a reasonable charge for such services as
determined by Sublessor, the initial rate for which shall be $50.00 per hour
per floor. Sublessee agrees to keep and cause to be kept closed all window
coverings when necessary because of the sun's position, and Sublessee also
agrees at all times to cooperate fully with Sublessor and to abide by all the
reasonable regulations and requirements which Sublessor may prescribe for the
proper functioning and protection of the heating, ventilating, and
air-conditioning system. Sublessor does not warrant that the current
air-conditioning system shall cool the Premises in the manner set forth
herein if Sublessee brings onto the Premises excess heat-generating machines,
lighting or equipment, and if the current air-conditioning system is
insufficient, Sublessee's sole remedy shall be to install, at Sublessee's
sole cost and expense, such supplementary air-conditioning units in the
Premises as may be required by Sublessee.
8.2 EXCESS USAGE. If Sublessee uses excessive amounts
of non-metered utilities or services of any kind because of operation outside
of normal
PAGE 5
Building hours, high demands from office machinery and equipment, nonstandard
lighting, or any other cause, Sublessor may impose a reasonable charge for
supplying such extra utilities services, which charge shall be payable
monthly by Sublessee in conjunction with Rent payments. In case of dispute
over any extra charge under this paragraph, Sublessor and Sublessee shall
select a qualified independent engineer whose decision shall be conclusive on
both parties. If the parties cannot agree on the engineer the same shall be
appointed by the presiding judge of the Multnomah County (Oregon) Circuit
Court. The party not prevailing in such dispute shall pay the cost of such
engineer's determination.
8.3 SERVICES DISCLAIMER. Sublessor shall not be in
default hereunder or be liable for any damages directly or indirectly
resulting from, or by reason of (i) failure to furnish or delay in furnishing
any such utilities or services when such failure or delay is caused by acts
of God or the elements, labor disturbances of any character, any other
accidents or other conditions beyond the reasonable control of Sublessor, or
by the making of repairs or improvements to the Premises or the Building, or
(ii) the limitation, curtailment, rationing or restriction on use of water or
electricity, gas or any other form of energy or any other service or utility
whatsoever serving the Premises or the building. Furthermore, Sublessor shall
be entitled to cooperate voluntarily in a reasonable manner with the efforts
of national, state or local governmental agencies or utilities suppliers in
reducing energy or other resource consumption. Notwithstanding any other
provision contained herein, in the event that any utilities or services
essential to the conduct of business in the Premises are interrupted for a
period of five (5) days or more, Rent shall xxxxx, but only to the extent of
Sublessor's insurance unless the interruption is due to the fault of
Sublessor.
9. SUBLESSEE IMPROVEMENTS.
9.1 CONSTRUCTION BY SUBLESSEE: Sublessee shall have
the right to install, at Sublessee's sole cost and expense, the improvements
described in this Section and such other improvements as may be approved by
Sublessor, which consent shall not be unreasonably withheld so long as
Sublessee obtains Lessor's consent. In connection therewith:
9.1.1 SUBLESSOR'S APPROVAL: Such work shall not
proceed until Sublessor's written approval of each of the following items,
which approval shall not be unreasonably withheld, conditioned or delayed:
(a) Sublessee's contractor; (b) public liability and property damage
insurance carried by Sublessee or its contractor; (c) schematic plans and
specifications for such work; and (d) detailed construction plans and
specifications. All such work shall be done in strict conformity with such
final plans and specifications subject to field change orders prepared and
approved by
PAGE 6
Sublessor. As-built plans shall be prepared by Sublessee after the work is
fully completed and a copy shall be delivered to Sublessor for its use.
9.1.2 PERMITS: All work shall be done in
conformity with a valid building permit (obtained at Sublessee's expense) when
required, a copy of which shall be furnished to Sublessor before such work is
commenced, and in any case, all such work shall be performed in accordance with
all applicable governmental regulations at Sublessee's sole expense.
Notwithstanding any failure by Sublessor to object to any such Work, Sublessor
shall have no responsibility for Sublessee's failure to meet all applicable
regulations.
9.1.3 COORDINATION: All work by Sublessee or
Sublessee's contractor shall be scheduled through Sublessor. Sublessee or
Sublessee's contractor shall arrange for necessary utility, hoisting and
elevator service with Sublessor.
9.14 MANNER OF ENTRY: Sublessee's entry to the
Premises for any purpose, including without limitation, inspection or
performance of Sublessee construction by Sublessee's agents, prior to the
Commencement Dates specified herein shall be at such times as are reasonably
approved by Sublessor and subject to all the terms and conditions of this
Sublease except the payment of Rent. Sublessee's entry shall mean entry by
Sublessee, its officers, contractors, licensees, agents, servants, employees,
guests, invitees, or visitors.
9.1.5 FAULTY WORK: Sublessee shall promptly
reimburse Sublessor upon demand for any extra expense incurred by the Sublessor
by reason of faulty work done by Sublessee or its contractors or by reason of
any delays caused by such work, or by reason of inadequate cleanup.
9.2 FIBER OPTICS. Sublessee may connect redundant fiber
optics to the building's systems, the plans and specifications for which shall
be subject to Sublessor's approval, which approval shall not be unreasonably
withheld, conditioned or delayed.
9.3 ROOF TOP ACCESS.
9.3.1 LICENSE: Sublessor hereby grants Sublessee a
license to use a portion of the Building roof top area to be agreed upon by
Sublessor and Sublessee (the "Equipment Area") for the installation, operation,
maintenance, repair and replacement of an antenna (the "Antenna"), satellite
dish (the "Dish") and ancillary facilities (collectively, the "Equipment"). The
Antenna shall be no greater than three (3) feet tall, and the Dish shall be no
greater than three (3) feet in diameter. The Equipment shall weigh no more than
200 pounds. This term of this license shall
PAGE 7
be the same as the term of this Sublease and expire upon the expiration or
earlier termination of this Sublease.
9.3.2 COSTS: Sublessee shall reimburse
Sublessor for all costs Sublessor may incur with regard to the Equipment,
including costs for maintenance, repairs, or improvements incurred from time
to time and any expenses incurred by Sublessor in reviewing specifications or
inspecting the installation of these facilities. Sublessee also shall pay all
taxes levied by any jurisdiction with respect to the Equipment and
appurtenant facilities.
9.3.3 ACCESS: Sublessee and its contractors,
agents and subcontractors shall have the right to enter or leave the
Equipment Area at reasonable times provided that Sublessee and such parties
comply any applicable rules and regulations of the building.
9.3.4 INTERFERENCE WITH OTHER EQUIPMENT:
Sublessor shall not be responsible for any interference that may occur with
respect to Sublessee's Equipment signal.
9.3.5 REPAIRS: Except in the event of an
emergency, Sublessor must give its written approval prior to the performance
of any repairs or replacement of the Equipment, such approval not to be
unreasonably withheld or delayed. All costs of installation, including the
cost of electrical equipment, mounting fixtures and engineering studies
required by Sublessee hereunder, or which are required to comply with
Sublessor's site engineering or aesthetic standards, will be paid by
Sublessee. At the end of the Term of this Sublease, Sublessee shall remove
all equipment or other properties attached to or otherwise brought into or
onto the Equipment Area, other than permanent modifications which Sublessor
elects to retain.
9.3.6 INDEMNIFICATION: Sublessee, assumes full
responsibility for the installation, engineering and maintenance of all
Equipment. Sublessee shall indemnify and hold Sublessor harmless from and
against all losses, costs (including reasonable attorneys' fees at trial and
on appeal), damages, expenses and liabilities (including statutory liability,
liability under workers compensation laws and mechanics liens), in connection
with the use, installation or operation of the Equipment or Equipment Area or
arising from any acts or negligence of Sublessee, Sublessee's agents,
employees, customers, invitees, contractor, and subcontractors, exclusive,
however, of any liability arising out of Sublessor's negligence.
9.3.7 PERMITS: Sublessee shall, at its expense,
obtain any and all applicable municipal, state and Federal or other permits
and/or licenses required for the installation, operation and maintenance of
the Equipment, and Sublessor shall not
PAGE 8
be responsible for any signal interference or signal straying that may result
from Sublessee's use of the Equipment. All costs and risks associated with
the installation, operation and maintenance of the Equipment shall be the
sole obligation of Sublessee, and Sublessee's inability to secure or retain
such permits and/or licenses shall not terminate this Sublease. A copy of
each of Sublessee' s permits and licenses shall be submitted to Sublessor.
9.3.8 SCREENING: Sublessor, at its option, may
require Sublessee to screen the Equipment from public view by erecting
architectural screens around the Equipment Area.
9.3.9 PLAN APPROVAL: Ali plans and specifications
pertaining to the installation of the Equipment must be approved by Sublessor
and all governmental authorities having jurisdiction thereof and shall comply
with any restrictive covenants pertaining to the Building.
9.3.10 APPLICATION OF OTHER PROVISIONS: All of the
provisions of this Sublease other than this Section shall be applicable to the
License created by this Section as if the area covered by the License were a
part of the Premises, except to the extent that such provisions are in conflict
with the provisions of this Section, in which latter event the provisions of
this Section shall be deemed to be controlling.
10. ASSIGNMENT AND SUBLETTING. Sublessee shall not assign this
Sublease or further sublet all or any part of the Premises without the prior
written consent of both Sublessor and Lessor.
11. INSURANCE. Sublessor shall fulfill the insurance obligations
of the Tenant under the Master Lease. Sublessee shall insure its own personal
property and trade fixtures, and shall maintain at all times during the term of
this Sublease comprehensive general liability insurance in respect of the
Premises and the conduct or operation of business therein, with Sublessor, its
property manager, if any, Lessor and any mortgagee whose name and address shall
previously have been furnished to Sublessee, as additional insureds to the
extent of the insurance coverage required hereunder, with Two Million and No/100
Dollars ($2,000,000.00) minimum combined single limit coverage, or its
equivalent. Sublessee shall deliver to Sublessor XXXXX Form 27 certificates of
insurance issued by the insurance company or its authorized agent, within ten
(10) days of the Commencement Date. Sublessee shall procure and pay for renewals
of such insurance from time to time before the expiration thereof, and Sublessee
shall deliver to Sublessor such renewal certificate at least thirty (30) days
before the expiration of any existing policy. All insurance policies required to
be carried by Sublessee hereunder shall be issued by responsible insurance
companies authorized to issue insurance in the State of Oregon rated B VII
PAGE 9
or higher by Best's Insurance Rating Service. Anything to the contrary in
this Sublease notwithstanding, neither party, nor its officers, directors,
employees nor agents, shall be liable to the other party nor to any insurance
company (by way of subrogation or otherwise) insuring the other party for any
loss or damage to any building, structure or other tangible property normally
covered under an all risk policy of property insurance or under workers'
compensation laws and benefits even though such loss or damage might have
been occasioned by the negligence of such party, its agents or employees.
12. ACCESS TO PREMISES. Sublessor reserves, and shall at all
reasonable times have, the right to re-enter the Premises upon 24 hours'
prior notice to Sublessee (except in an emergency) to inspect the same, to
supply any service to be provided by Sublessor to Sublessee, to show or to
allow Lessor to show the Premises to prospective purchasers, mortgagees; or
tenants, to post notices of nonresponsibility, and to alter, improve or
repair the Premises. Any such work shall be without abatement of Rent
provided the work is necessary to comply with governmental requirements or is
reasonably necessary to keep the Premises in the condition required by this
Sublease and Sublessor complies with this Section. For such purpose,
Sublessor may erect, use and maintain scaffolding, pipes, conduits and other
necessary structures in and through the Premises where reasonably required by
the character of the work to be performed, provided that entrance to the
Premises shall not be blocked thereby, and further provided that the business
of Sublessee shall not be interfered with unreasonably. For each of the
purposes stated in this Section, Sublessor shall at all times have and retain
a key with which to unlock all of the doors in, upon and about the Premises,
excluding Sublessee's vaults and safes or special security areas (designated
in advance). Sublessor shall have the right to use any and all means which
Sublessor may deem necessary or proper to open all doors in an emergency in
order to obtain entry to any portion of the Premises, and any entry to any
portion of the Premises obtained by Sublessor by any such means, or otherwise
shall not under any circumstances be construed or deemed to be a forcible or
unlawful entry into, or a detainer of, the Premises, or an eviction, actual
or constructive, of Sublessee from all or part of the Premises.
13. NOTICE OF OCCURRENCES. Sublessee shall give prompt notice
to Sublessor of: (i) any occurrence in or about the Premises for which
Sublessor might be liable; (H) any fire or other casualty in the Premises;
(iii) any damage to or defect in the Premises including the fixtures,
equipment and appurtenances thereof, for the repair of which Sublessor might
be responsible; and (iv) damage to or defect in any part or appurtenances of
the building's sanitary, electrical, heating, ventilating, air-conditioning,
elevator or other systems located in or passing through the Premises or any
part thereof.
PAGE 10
14. RULES. Sublessee shall faithfully observe and comply with any
rules and regulations from time to time established by Sublessor by written
notice to Sublessee and all reasonable modifications thereof and additions
thereto.
15. FORCE MAJEURE. The obligations of the parties hereunder shall
be in no way affected, impaired or excused, nor shall a party have any liability
whatsoever to the other, because:
15.1 such party is unable to fulfill, or is delayed in
fulfilling, any of its obligations under this Sublease by reason of strike,
other labor trouble, governmental preemption of priorities or other controls in
connection with a national or other public emergency or shortages of fuel,
supplies or labor resulting therefrom, or any other cause, whether similar or
dissimilar, beyond Sublessor's reasonable control; or
15.2 of any failure or defect in the supply, quantity or
character of electricity, water or other utilities furnished to the Premises, by
reason of any requirement, act or omission of the public utility or others
serving the building with electric energy, steam, oil, gas or water, or for any
other reason whether similar or dissimilar, beyond Sublessor's reasonable
control.
In no event shall this provision excuse Sublessee's obligation to pay Rent.
16. OTHER PROVISIONS OF SUBLEASE. Except as expressly set forth
herein, all applicable terms and conditions of the Master Lease are incorporated
into and made a part of this Sublease as if Sublessor were the lessor thereunder
and Sublessee the lessee thereunder, except for the following: Sections 1, 2, 3,
5, 6 (a) and (b), 7, 9 (b), 10 (b), 12, 21 of the Master Lease, the First
Amendment, Section 3 of the Third Amendment, the Fourth Amendment, the Sixth
Amendment, the Seventh Amendment, the First Extension, the Second Extension and
the Third Extension shall not be applicable to this Sublease, and the rights and
obligations of the Tenant under Sections 10 and 11 of the Master Lease (except
for any allocation to Tenant of moving expenses in a condemnation proceeding)
shall be the rights and obligations of Sublessor. Sublessee assumes and agrees
to perform the lessee's obligations under the Master Lease during the Term to
the extent that such obligations are applicable to the Premises, except that the
obligation to pay rent to Lessor under the Master Lease shall be considered
performed by Sublessee to the extent and in the amount rent is paid to Sublessor
in accordance with Section 5 of this Sublease. Sublessee shall not commit or
suffer any act or omission that will violate any of the provisions of the Master
Lease. Sublessor shall exercise due diligence in attempting to cause Lessor to
perform its obligations under the Master Lease for the benefit of Sublessee. If
the Master Lease terminates, this Sublease shall terminate and the parties shall
be relieved of any further liability or obligation under this Sublease, provided
however, that if the Master
PAGE 11
Lease terminates as a result of a default or breach by Sublessor or Sublessee
under this Sublease and/or the Master Lease, then the defaulting party shall
be liable to the non-defaulting party for all damage suffered as a result of
such termination. Notwithstanding the foregoing, if the Master Lease gives
Sublessor any right to terminate the Master Lease in the event of the partial
or total damage, destruction, or condemnation of the Master Premises or the
building or project of which the Master Premises are a part, the exercise of
such right by Sublessor shall not constitute a default or breach hereunder.
17. ATTORNEYS' FEES. If Sublessor or Sublessee shall commence
an action against the other arising out of or in connection with this
Sublease, the prevailing party shall be entitled to recover its costs of suit
and reasonable attorneys' fees; on appeal or in arbitration.
18. NOTICES. All notices and demands which may or are to be
required or permitted to be given by either party on the other hereunder
shall be in writing. All notices and demands by the Sublessor to Sublessee
shall be sent by United States Mail, postage prepaid, addressed to the
Sublessee at the Premises, and to the address hereinbelow, or to such other
place as Sublessee may from time to time designate in a notice to the
Sublessor. All notices and demands by the Sublessee to Sublessor shall be
sent by United States Mail, postage prepaid, addressed to the Sublessor at
the address set forth herein, and to such other person or place as the
Sublessor may from time to time designate in a notice to the Sublessee.
To Sublessor at: First Technology Credit Union
0000 XX 000xx Xxxxx
Xxxxxxxxx, Xxxxxx 00000
To Sublessee at: Corillian Corporation
0000 XX 000xx Xxxxx
Xxxxxxxxx, Xxxxxx 00000
19. BROKER. Sublessor was represented by Xxxxxx X. Xxxxxx, SIOR,
Vice President of Xxxxx & Xxxxx (the "Broker") in connection with this Sublease.
Sublessor shall pay a brokerage commission to the Broker pursuant to the terms
of a separate agreement between the Broker and Sublessor. The parties each
represent and warrant that they are not represented by a broker except for the
Broker and are not liable to pay any other real estate commissions in connection
with this Sublease. In the event of a claim by any other broker for a broker's,
agent's or finder's fee or commission in connection with the negotiation,
execution or consummation of this transaction, the party upon whose alleged
statement, representation or agreement such claim or liability arises shall
indemnify, hold harmless and defend the other party from and
PAGE 12
against such claim and liability, including, without limitation, reasonable
attorneys' fees and court costs.
20. CONSENT BY LESSOR. THIS SUBLEASE SHALL BE OF NO FORCE OR
EFFECT UNLESS CONSENTED TO BY LESSOR WITHIN 10 DAYS AFTER EXECUTION HEREOF.
21. ARBITRATION. Sublessor or Sublessee may at any time request
final and binding arbitration of any matter in dispute where arbitration is
expressly provided for in this Sublease.
21.1 GENERAL. The party requesting arbitration shall do
so by giving notice to that effect to the other party, and the dispute shall
be determined in the City of Portland, Oregon, by a single arbitrator if the
amount in dispute is less than $100,000.00, and by three arbitrators for any
dispute in excess of such amount, in accordance with the rules then
pertaining to the American Arbitration Association. All arbitrators shall be
licensed attorneys having at least 10 years experience with similar
transactions. Each party shall submit its position to the arbitrator(s) and
the arbitrator(s) shall only have jurisdiction to choose the entire position
of one (1) of the parties as the prevailing position. The determination in
such arbitration may be enforced on the application of either party by the
order of judgment of a court of competent jurisdiction. The fees and expenses
of any arbitration including attorneys' and experts' fees shall be borne by
the losing party.
21.2 GOVERNING RULES; PRESERVATION OF REMEDIES. The
arbitrator(s) shall determine the value in accordance with the substantive
law of the state of Oregon. The arbitrator(s) shall have no authority nor
jurisdiction to award any damages or any other remedies beyond those which
could have been awarded in a court of law if the parties had litigated the
claims instead of arbitrating them. The parties shall not assert any claim
for punitive damages except to the extent such awards are specifically
authorized by statute. If the Federal Arbitration Act, Title 9 of the United
States Code, is applicable to this transaction, it shall be controlling in
any judicial proceedings and in the arbitration itself as to issues of
arbitrability and procedure.
21.3 MISCELLANEOUS ARBITRATION PROVISIONS. The parties
shall use their best efforts to complete any arbitration within sixty (60) days
of the filing of the dispute. The arbitrator(s) shall be empowered to impose
sanctions for any party's failure to do so. The provisions of this arbitration
provision shall survive any termination, amendment, or expiration hereof unless
the parties otherwise expressly agree in writing. If any provision of this
arbitration program is declared invalid by any court,
PAGE 13
the remaining provisions shall not be affected thereby and shall remain fully
enforceable.
SUBLESSOR: SUBLESSEE:
FIRST TECHNOLOGY CREDIT UNION, CORILLIAN CORPORATION, an
a credit union chartered Oregon corporation
by the State of Oregon
By: /s/ By: /s/ Xxx X. Xxxxxxx
----------------------- ------------------------------
Name: Name:
--------------------- ----------------------------
Title: CFO Title:
-------------------- ---------------------------
Lessor consents to this Sublease and agrees that the term of the Master Lease
terminates on December 31, 2000.
LESSOR:
/s/ Xxxxxx Xxxxx /s/ Kwai Sun Young
-------------------------- --------------------------------
Xx. Xxxxxx X. X. Xxxxx Kwai Sun Young
PAGE 14
EXHIBIT A
MASTER LEASE
PAGE 15
LEASE
THIS LEASE is made and entered into as of the 7 day of March 1988,
by and between Northwest Development Co., 0000 X.X. Xxxxxxxxx Xxxx,
Xxxxxxxxx, Xxxxxx 00000 ("Landlord") and First Technology Federal Credit
Union, Xxxx Xxxxxx Xxx 0000, Xxxxxxxxx, Xxxxxx 00000-0000 (hereinafter
referred to as "Tenant").
WITNESSETH:
In consideration of the covenants and agreements contained herein,
Landlord has agreed to acquire approximately 10 acres of land, located at the
northwest corner of the intersection of S.W. Tualatin Valley Highway and X.X.
000xx Xxxxxx in the City of Beaverton, Oregon, and to construct a building
and certain tenant improvements (the "Building") on approximately 3 acres of
such land (the balance of such land, approximately 7 acres, to be given to
the Tualatin Valley Parks and Recreation District). The Building together
with the land (hereinafter referred to as the "Premises"), is outlined in
blue on Exhibit A attached hereto.
This Lease shall be for a term of 25 years commencing on the date when
the Premises are ready for Tenant's occupancy and use (the "Commencement Date").
Landlord shall give Tenant not less than 45 days
1-LEASE
prior written notice of the date that the Premises will be completed and
ready for Tenant's occupancy.
If such date shall be other than the first day of the month, rent
until the first of the month shall be prorated, and the Commencement Date
shall be the first day of the following month and the Lease shall continue
for a full 25 year term thereafter.
Tenant shall owe no rent until the Premises are ready for
possession. Landlord shall have no liability for delays in deliver of
possession due to strikes, acts of God, or similar causes beyond Landlord's
control, except that either party shall have the right to terminate this
Lease if Landlord is unable to deliver possession of the Premises by December
31, 1988. Either party may cancel this Lease upon written notice to the other
in the event that permission to construct, use, or furnish necessary
utilities to the Premises is denied or revoked by the applicable government
agency or public utility and necessary utilities can not otherwise be
provided by December 31, 1988.
TO HAVE AND TO HOLD the Premises unto Tenant for the term set forth
above on the terms and conditions hereinafter provided.
1. CONTINGENCIES.
The obligations of the parties pursuant to this Lease are subject to
satisfaction of the following contingencies:
2-LEASE
(a) Mutual agreement of Landlord and Tenant to a site plan,
with diagrammatic indications showing the relationship of all major
components of the project, and small scale line drawings of the floor plans
of the Building prior to April 29, 1988. Such plans and drawings shall be
sufficiently detailed to permit Tenant to fully evaluate the design and
layout of the interior space.
(b) Receipt of necessary governmental approvals (including a
building permit) for the building shell within 30 days from the date of
satisfaction of the condition set forth in Paragraph l(a).
(c) Receipt by Landlord of a binding commitment for financing
the construction cost of the Building on the terms and conditions
satisfactory to Landlord within 30 days from the date of satisfaction of the
condition set forth in Paragraph 1(a).
In the event that any of the foregoing contingencies are not
satisfied or waived within the time limit specified, either party may
terminate this Lease upon 10 days' written notice to the other party.
2. IMPROVEMENTS.
(a) The Building shall include an office and drive-up teller
facility, landscaping, and parking improvements constructed by Landlord in
accordance with the plans and specifications to be approved by the parties
pursuant to Paragraph l(a) and all governmental authorities having
3-LEASE
jurisdiction pursuant to Paragraph l(b). All plans for the Building and the
related tenant improvements are to be furnished by Landlord and approved by
Tenant. It is agreed that the exterior of the Building shall be constructed
of concrete or comparable materials, using a form of tilt wall construction
method or masonry construction, and shall consist of such other component
items listed under Building Shell on Exhibit B attached hereto. The interior
tenant improvements to be provided by Landlord shall include those items
listed under Tenant Improvements on Exhibit B attached hereto. All other
interior improvements are to be provided by Tenant, at Tenant's sole expense.
(b) Following the satisfaction of all conditions referred to in
Xxxxxxxxx 0, Xxxxxxxx shall, within 30 days, begin construction of the
Building. Tenant shall, with respect to any work it performs or causes to be
performed, keep the Premises free from any and all mechanic's or other liens.
Failure to do so shall constitute a default hereunder. Both parties agree to
cause the interior of the Building to be completed in a good and workmanlike
manner in accordance with the approved plans.
(c) Tenant and its contractor and subcontractors shall have the
right to use the Building prior to its completion for the purposes of
constructing and installing furnishings, cabinetry and certain custom fixtures
to the interior of the Building on the terms and conditions set forth
4-LEASE
in this Lease, but only to the extent such work does not in any manner
whatsoever interfere with Landlord's construction of the Building.
(d) Each party shall defend, indemnify, and hold harmless the
other party from any costs, losses, or liabilities incurred or suffered in
whole or in part because of the other party's negligence in constructing the
Building or any interior improvements or fixtures. In the event that a third
party asserts any claim against Landlord based in whole or in part upon
Tenant's conduct, action, or inaction in connection with the installation of
interior fixtures, then Tenant shall defend such claim with legal counsel
acceptable to Landlord (but paid for by Tenant) and Landlord shall be
indemnified by Tenant from any cost, loss, damage, or liability arising from
such claim; provided, however, that Tenant shall not be responsible for
Landlord's defense, damages, or any indemnity obligations if Landlord is
responsible in whole or in part for the third-party claim. Landlord and
Tenant shall jointly share in the costs, losses, damages, or liabilities
arising from any claims asserted jointly against Landlord and Tenant, with
both parties sharing in the costs, losses, damages, and liabilities to the
extent of their comparative negligence, if any.
3. RENT.
Tenant shall pay rent for the Premises as follows;
5-LEASE
(a) MINIMUM RENT FOR YEARS 1-5. Tenant shall pay to Landlord, at
the Landlord's address listed herein or such other place as may be designated in
writing by Landlord, during the first 60 months of this lease, the sum of
$35,100 per month. (The monthly rental has been based upon the assumption that
the Building will contain 27,000 square feet of gross area, determined by actual
outside dimensions, at $1.30 per square foot per month. At the Commencement Date
of the Lease, the monthly rent shall be adjusted to reflect the actual outside
dimensions at $1.30 per square foot per month; provided, however, in no event
will the monthly rent be less than $32,500 or more than $37,700.) Such payment
shall be made in advance for each month on or before the first day of each
calendar month.
(b) MINIMUM RENT FOR YEARS 6-10. For months 61 through 120 of the
term of this Lease, the minimum rent shall be the initial monthly rent (as
adjusted to reflect actual gross area) plus a sum obtained by multiplying the
minimum rent by the aggregate increase (with the decimal point moved two spaces
to the left) in the Consumer Price Index for Urban Wage Earners-New Series for
Portland, Oregon, published by the Bureau of Labor Statistics (the "CPI Index"),
from the first month in which rent is payable hereunder through the 60th month
with a maximum increase of 15 percent; provided, however, the rent for months 61
through 120 shall not be less than the rent for the initial 60 months.
6 - LEASE
(c) MINIMUM RENT FOR YEARS 11-15. For months 121 through 180 of
the term of this Lease, the minimum rent shall be the rent payable in the 120th
month plus a sum obtained by multiplying said amount by the aggregate increase
(with the decimal point moved two spaces to the left) in the CPI Index from the
61st month of the lease term through the 120th month with a maximum increase of
15 percent; provided, however, the rent for months 121 through 180 shall not be
less than the rent for months 61 through 120.
(d) MINIMUM RENT FOR YEARS 16-20. For months 181 through 240 of
the term of the Lease, the minimum rent shall be the rent payable in the 180th
month plus a sum obtained by multiplying said amount by the aggregate increase
(with the decimal point moved two spaces to the left) in the CPI Index from the
121st month of the Lease term through the 180th month with a maximum increase of
15 percent; provided, however, the rent for the months 181 through 240 shall not
be less than the rent for months 121 through 180.
(e) MINIMUM RENT FOR YEARS 21-25. For months 241 through 300 of
the term of the Lease, the minimum rent shall be the rent payable in the 240th
month plus a sum obtained by multiplying said amount by the aggregate increase
(with the decimal point moved two spaces to the left) in the CPI Index from the
181st month of the Lease term through the 240th
7 - LEASE
month with a maximum increase of 15 percent; provided, however, the rent for
months 241 through 300 shall not be less than the rent for months 181 through
240.
(f) CPI INDEX. In the event the CPI Index is not published for a
month required for a computation hereunder, index for the next preceding month
shall be used. If the CPI Index should no longer be published, Landlord shall
select a substitute index which is most comparable to the CPI Index.
(g) OPTION AND OPTION PERIOD RENT. Tenant shall have the option
to extend the term of this Lease for two additional periods of five years each.
Each option can be exercised only by Tenant giving Landlord written notice of
its election to exercise the option at least 180 days, but not more than 365
days, prior to the end of the Lease term. Upon the proper exercise of this
option, Landlord and Tenant shall negotiate in good faith to determine the fair
market rental for the Premises which shall then be the monthly rent for the
five-year option period. If they are unable to agree within 60 days after
Tenant notifies Landlord of the Tenant's exercise, the sole issue of the "fair
market rent" shall be submitted to arbitration, pursuant to the commercial
rules of arbitration of the American Arbitration Association, with a panel of
three arbitrators, one of whom shall be chosen by each party and the third
chosen by the two arbitrators so selected. Each
8 - LEASE
arbitrator must be involved on a for-profit basis in commercial leasing
activity in Portland, Oregon at the date of selection.
(h) LATE PAYMENTS. Any sums paid or received after the tenth day
of the month during the term of this Lease, including any extension thereof,
shall bear a late fee of 5 percent of the amount of such late payment.
4. USE OF THE PREMISES.
(a) The Premises shall be used and occupied by Tenant, its
subsidiaries, and subtenants for general business purposes, including but not
limited to any activities which credit unions or their subsidiaries may be
authorized to engage in under applicable law.
(b) In connection with its use, Tenant shall at its expense
comply with all applicable laws, ordinances, and regulations of any public
authority, including those requiring alteration of the Premises because of
Tenant's specific use; shall create no nuisance nor allow any objectionable
liquid, odor, or noise to be emitted from the Premises; shall store no gasoline
or other highly combustible materials on the Premises which would violate any
applicable fire code or regulation.
(c) Tenant may erect signs stating its name and the names of its
subtenants, including a description of its business and/or the business of its
subtenants after first securing Landlord's written approval as to the size,
color, designs, wordings, locations and any necessary governmental
9 - LEASE
approvals. All signs installed by Tenant shall be removed upon termination of
this Lease with the sign location restored to its original condition. Tenant
shall be responsible at its sole cost and expense to maintain the appearance of
all of its signs. If Tenant fails to maintain its sign and upon failure of
Tenant to repair or replace sign upon reasonable written notice, Landlord may
make such required repairs or replacements and Tenant shall promptly reimburse
Landlord upon receipt of Landlord's invoice for the expense of such repair and
replacement.
(d) All alterations, additions, or improvements to the Premises
including the change of the color of the exterior of the Building by Tenant
shall require Landlord's prior written consent. Upon termination of this Lease
any such alterations, additions, or improvements (including without limitation
all electrical, lighting, plumbing, heating and air conditioning equipment,
doors, windows, partitions, drapery, carpeting, shelving, counters, and
physically attached fixtures) shall at once become part of the real property
and shall belong to Landlord unless the terms of the applicable consent provide
otherwise.
5. SECURITY DEPOSIT.
Tenant has deposited with Landlord the sum of $35,100 (hereafter
referred to as "the Security Deposit") to secure the faithful performance by
Tenant of each term, covenant, and condition of this Lease.
10 - LEASE
If Tenant shall at any time fail to make any payment or fail to keep or perform
any term, covenant, and condition on its part to be made or performed or kept
under this Lease, Landlord may, but shall not be obligated to, and without
waiving or releasing Tenant from any obligation under this Lease, use, apply or
retain the whole or any part of the Security Deposit:
(a) To the extent of any sum due to Landlord;
(b) To make any required payment on Tenant's behalf; or
(c) To compensate Landlord for any loss, damage, attorney's fees,
or expense sustained by Landlord due to Tenant's default.
In such event, Tenant shall, within five days after written
demand by Landlord, remit to Landlord sufficient funds to restore the Security
Deposit to its original sum; Tenant's failure to do so shall be a material
breach of this Lease. Landlord shall not be required to keep the Security
Deposit separate from its general funds, and Tenant shall not be entitled to
interest on such deposit. Should Tenant comply with all of the terms,
covenants, and conditions of this Lease and at the end of term of this Lease
leave the Premises in the condition required by this Lease, then the Security
Deposit, less any sums owing to Landlord, shall be returned to Tenant (or, at
Landlord's option, to last assignee of Tenant's interest
11 - LEASE
hereunder) within 30 days after the termination of this Lease and vacancy of
the Premises by Tenant.
6. UTILITY CHARGES; MAINTENANCE.
It is the intent of the parties hereto that this Lease shall be pure
net to Landlord and that Tenant will pay all charges related to the Building,
parking areas, driveways and grounds, including but not limited to the
following:
(a) Tenant shall pay when due all charges for
electricity, natural gas, water, garbage collection, janitorial service, sewer,
grounds and landscaping maintenance and all other utilities of any kind
furnished to the Premises during the Lease term. Landlord shall have no
liability resulting from any interruption of utility services caused by fire or
other casualty, strike, riot, vandalism, the making of necessary repairs or
improvements, or any other cause beyond Landlord's reasonable control. Tenant
shall control the temperature in the Premises to prevent freezing of any
sprinkler system. Tenant agrees to promptly notify Landlord of any malfunction,
damage, or failure of the sprinkler system. Tenant shall be responsible to
promptly repair or replace, at its sole cost and expense, any parts of the
sprinkler system in the Premises damaged by freezing or any other event,
excluding other acts of God or negligence of Landlord.
12 - LEASE
(b) Tenant shall, at its sole expense, repair and
maintain the roof, gutters, downspouts, exterior walls, building structure,
foundation, exterior paved areas, and curbs of the Premises in good condition.
Tenant shall keep the Premises neatly maintained and in good order and repair.
Tenant's responsibility shall include all maintenance and repair of the
building and grounds which include the electrical system, plumbing, drain pipes
for sewers, landscaping, air conditioning and heating systems, all doors, and
the replacement of all broken and cracked glass with glass of the same quality.
Tenant shall refrain from any discharge that would damage the sewers serving
the Premises.
(c) Tenant shall keep the sidewalks abutting the
Premises or the separate entrance free and clear of snow, ice, debris, and
obstructions of every kind. In this regard, Tenant shall refrain from using
materials, chemicals, or equipment which may be damaging to sidewalks and
entrances.
(d) Tenant shall not store any materials, supplies, or
equipment outside in any unapproved or unscreened area. Trash and garbage
receptacles shall be stored in designated areas and kept covered at all times.
7. TAXES AND ASSESSMENTS; OPERATING EXPENSES.
13 - LEASE
(a) Tenant shall be responsible for all real property taxes and
general and special assessments relating to the Premises and shall pay them as
they become due and payable to the appropriate taxing authority.
(b) Real property taxes charged to Tenant hereunder shall include all
general real property taxes assessed against the Premises or payable during the
Lease term, installment payments on Bancrofted special assessments, and any
rent tax, tax on Landlord's interest under this Lease, or any tax in lieu of
the foregoing, whether or not any such tax is now in effect. Tenant shall not,
however, be obligated to pay any tax based upon Landlord's net income.
8. PARKING. Tenant, its employees, and customers shall have the exclusive
right to use all private parking located on the Premises. Tenant shall control
the use of such parking spaces so that there will be no unreasonable
interference with the normal traffic flow and shall permit no parking on any
landscaped or unpaved surface.
9. LIABILITY.
(a) Tenant shall not permit any liens to attach to the
Premises as a consequence of any of its activities. Tenant shall indemnify and
defend Landlord and Landlord's agent, if any, from any claim, liability,
damage, or loss directly or indirectly arising out of any activity on the
Premises by Tenant, its agents, or invitees or resulting from Tenant's failure
14 - LEASE
to comply with any term of this Lease; provided, however, that Tenant shall
have no obligation to indemnify Landlord for any acts or omissions by Landlord
or Landlord's agents, contractors, employees, or invitees.
(b) Tenant shall carry public liability and property damage
insurance with limits of not less than $500,000 for injury to one person in one
occurrence, $1,000,000 for injuries to more than one person in one occurrence,
and $200,000 for property damage. Such insurance shall be evidenced by a
certificate delivered to Landlord stating that the coverage will not be
canceled or materially altered without 30 days' advance written notice to
Landlord. Landlord shall be named as an additional insured on such policy.
10. CASUALTY DAMAGE.
(a) If fire or other casualty causes damage to the
Premises in an amount exceeding 75 percent of the full construction-replacement
cost of the Premises, Landlord may elect to terminate this Lease, as of the
date of the damage, by notice in writing to Tenant within 30 days after such
date. Otherwise, Tenant shall promptly repair the damage and restore the
Premises to its former condition as soon as practicable, unless the casualty
shall occur in the last two years of the Lease term, including any renewal
thereof, in which event Landlord may elect to terminate this Lease as of the
date of the damage by notice in writing to
15 - LEASE
Tenant within 30 days after such date. Rent shall be abated during the period
and to the extent the Premises are not reasonably usable for the use permitted
by this Lease.
(b) Tenant shall be responsible for obtaining and keeping
adequate insurance covering the Premises against loss by fire and casualty,
including rent loss coverage in favor of Landlord of at least 6 months in order
to protect Landlord for loss of rental during any period of restoration when
rent will be abated pursuant to Paragraph 10(a). Tenant shall also be
responsible for insuring its personal property and trade fixtures located on
the Premises.
(c) Neither party shall be liable to the other for any loss or
damage to the Premises or Tenant's personal property thereon caused by any
occurrence and there shall be no subrogated claim by one party's insurance
carrier against the other party arising out of any such loss.
11. CONDEMNATION.
If a condemning authority takes the entire Premises or a
portion sufficient to render the remainder unsuitable for Tenant's use, then
either party may elect to terminate this Lease effective on the date that title
passes to the condemning authority. Otherwise, Tenant shall proceed as soon as
practicable to restore the remaining Premises to a condition comparable to that
existing at the time of the taking. Rent shall be abated
16 - LEASE
during the period of restoration to the extent the Premises are not reasonably
usable by Tenant, and rent shall be reduced for the remainder of the term in an
amount equal to the reduction in rental value of the Premises caused by the
taking. All condemnation proceeds shall belong to Landlord. If moving expenses
are allocated to Tenant, Tenant shall receive those proceeds.
12. ASSIGNMENT AND SUBLETTING.
Tenant shall not assign its interest under this Lease nor
mortgage or sublet (except as otherwise set forth below) the Premises without
first obtaining Landlord's consent in writing which will not be withheld
unreasonably. Tenant shall have the right to sublet portions of the Premises to
its subsidiaries, affiliates, and certain professionals for the purpose of
offering business and professional services to Tenant's customers and potential
customers. In the event that Tenant shall request Landlord's permission to
assign all or a portion of the Premises, Landlord may at his sole discretion
elect to terminate this Lease or a portion hereof, and enter into separate
leases or rental agreements with the proposed assignee. No consent in one
instance shall prevent this provision from applying to each subsequent
instance. No assignment or subletting shall relieve Tenant of its obligation to
pay rent or perform other obligations required by this Lease.
17 - LEASE
13. DEFAULT.
Any of the following shall constitute a default by Tenant
under this Lease:
(a) Tenant's failure to pay rent or any other charge under this
Lease within 10 days after it is due and upon written notice by Landlord;
provided, however, if Tenant has failed to pay rent within such 10 day grace
period and Landlord has provided written notice to Tenant on two previous
occasions during a 12 month period, then Tenant shall be in default thereafter
if Tenant fails to make such payment within the 10 day grace period and no
written notice by Landlord shall be required to constitute Tenant's default.
(b) Failure by Tenant to comply with any other term or condition
within 30 days following written notice from Landlord specifying the
noncompliance; provided, however, if such noncompliance cannot be cured within
the 30 day period, this provision shall be satisfied if Tenant commences
correction within such period and thereafter proceeds in good faith and with
reasonable diligence to effect compliance as soon as possible.
(c) Tenant's insolvency; assignment for the benefit of its
creditors; Tenant's voluntary petition in bankruptcy or adjudication as
bankrupt, or the appointment of a receiver for Tenant's properties.
18 - LEASE
14. REMEDIES FOR DEFAULT
In case of default as described in Paragraph 13, above, Landlord
shall have the right to the following remedies which are intended to be
cumulative and in addition to any other remedies provided under applicable
law:
(a) Retake possession of the Premises by summary proceedings and relet
the Premises upon any reasonable terms. No such reletting shall be
construed as an acceptance of a surrender of Tenant's leasehold interest.
(b) Recover damages caused by Tenant's default which shall include
reasonable attorney fees at trial and on any appeal therefrom.
Landlord may xxx periodically to recover damages as they occur
throughout the Lease term, and no action for accrued damages shall bar a later
action for damages subsequently accruing.
(c) Make any payment or perform any obligation required of Tenant so as
to cure Tenant's default, in which case Landlord shall be entitled to
recover all amounts so expended from Tenant, plus interest from the date of
the expenditure at the rate of 12 percent per annum from the date of the
expenditure.
15. SURRENDER ON TERMINATION.
(a) On expiration or early termination of this Lease, Tenant shall
deliver all keys to Landlord, have final utility readings made
19-LEASE
on the date of move out, and surrender the Premises clean and free of debris
inside and out, with all mechanical, electrical, and plumbing systems in good
operating condition, all signing removed and defacement corrected, and all
repairs called for under this Lease completed. The Premises shall be
delivered in the same condition as at the commencement of the term, subject
only to depreciation and wear from ordinary use. Tenant shall remove all of
its furnishings and trade fixtures that remain its property and restore all
damage resulting from such removal. Failure to remove shall be an abandonment
of the property, and Landlord may dispose of it in any manner without
liability.
(b) If Tenant fails to vacate the Premises when required, Landlord may
elect either to treat Tenant as a tenant from month to month, subject to all
provisions of this Lease except the provision for term, or to eject Tenant
from the Premises and recover damages caused by wrongful holdover.
16. LANDLORD'S LIABILITY.
(a) Landlord warrants that so long as Tenant complies with all terms of
this Lease it shall be entitled to peaceable and undisturbed possession of
the Premises free from any eviction or disturbance by Landlord or persons
claiming through Landlord, except as described in Paragraph 18.
20-LEASE
(b) The Term "Landlord" as used herein shall mean only the owner of the
fee title to the premises and the land on which it is situated. In the event
of any transfer of such title to interest, Landlord herein named (and in case
of any subsequent transfers, the then Landlord) shall be relieved from and
after the date of such transfer of all liability as respects Landlord's
obligations thereafter to be performed, provided that any funds in the hands
of Landlord or the then Landlord at the time of such transfer, in which
Tenant has an interest, shall be delivered to the succeeding Landlord.
17. GENERAL PROVISIONS.
(a) Waiver by either party of strict performance of any provision of
this Lease shall not be a waiver of nor prejudice the party's right otherwise
to require performance of the same provision or any other provision.
(b) Subject to the limitations on transfer of Tenant's interest, this
Lease shall bind and inure to the benefit of the parties, their respective
heirs, successors, and assigns.
(c) Landlord shall have the right to enter upon the Premises at any
time to determine Tenant's compliance with this Lease, to make necessary
repairs to the Building or the Premises, or to show the Premises to any
prospective tenant or purchasers. During the last two months of the
21-LEASE
term, Landlord may place and maintain upon the Premises notices for leasing
or sale of the Premises.
(d) If this Lease commences or terminates at a time other than the
beginning of the month, then the rent (including Tenant's share of real
property taxes, if any) shall be prorated as of such date and, in the event
of termination for reasons other than default, all prepaid rent shall be
refunded to Tenant or paid on its account.
(e) 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, certified mail, return receipt requested,
to the address for the party stated in this Lease or to such other address as
either party may specify by notice to the other. Rent shall be payable to
Landlord at the same address.
(f) Time is of the essence with respect to the performance of each and
every provision of this Lease. This Lease shall be governed by the laws of
the state of Oregon.
18. SUBORDINATION.
This Lease may, at Landlord's sole option, be made subordinate to
any mortgage or deed of trust, which may hereafter affect the real property
of which the Building and Premises form a part, subject to Tenant's right to
peaceable and undisturbed possession. Within 10 days of
22-LEASE
receipt of written request from Landlord, Tenant shall execute and deliver
any necessary documents required to effectuate such subordination to any
mortgage or deed of trust.
19. ESTOPPEL CERTIFICATE.
(a) Within 10 days of receipt of written request from Landlord, Tenant
shall execute, acknowledge, and deliver to Landlord a statement in writing
certifying that this Lease is unmodified and in full force and effect (or, if
modified, stating the nature of such modification and certifying that this
Lease, as so modified, is in full force and effect) and the date to which the
rent and other charges are paid in advance if any, and acknowledging that
there are not, to Tenant's knowledge, any uncured defaults on the part of the
Landlord hereunder, or specifying such defaults if any are claimed. Any such
statement may be conclusively relied upon by any prospective purchaser or
encumbrancer of the Premises or of the entire Premises.
(b) Tenant's failure to deliver such statement within such time shall
be conclusive upon Tenant that this Lease is in full force and effect, without
modification except as may be represented by Landlord that there are no
uncured defaults in Landlord's performance, and that not more than one
month's base rent has been paid in advance.
23-LEASE
20. INDEMNITY.
Tenant shall indemnify, defend, and hold Landlord harmless from any and
all claims arising from Tenant's use of the Premises, or from the conduct of
its business or from any activity, work, or things which may be permitted or
suffered by Tenant in or about the Premises and shall further indemnify,
defend, and hold Landlord harmless from and against any and all claims
arising from any breach or default in the performance of any obligation on
Tenant's part to be performed under the provisions of this Lease or arising
from any negligence of Tenant or any of its agents, contractors, employees or
invitees and from any and all costs, attorney fees, expenses, and liabilities
incurred in the defense of any such claim or any action of proceeding
thereon. Tenant shall have no obligation to indemnify Landlord for negligent
or intentional acts or omissions by Landlord or Landlord's agents,
contractors, employees, or invitees.
21. ADJACENT PROPERTY. In acquiring the land upon which the Building
will be constructed, Landlord will also acquire the adjacent parcel outlined
in red on Exhibit A attached hereto (the "Adjacent Property"). If, at any
time during the term of this Lease, Landlord elects to sell, lease or develop
the Adjacent Property, Landlord shall first give Tenant a notice (the
"Offering Notice") specifying the terms and conditions of which Landlord is
willing to sell or lease the Adjacent Property. For a
24-LEASE
period of 30 days following receipt by Tenant of the Offering Notice, Tenant
shall have the exclusive right to purchase or lease the Adjacent Property on
the same terms and conditions as set forth in the Offering Notice. If Tenant
should fail, within said 30-day period, to deliver written notice to Landlord
exercising such right to purchase or Lease, Landlord shall have the right to
sell or lease the Adjacent Property for a period of 180 days after the
expiration of the 30-day period to any other party; provided, however, that
Landlord shall not sell or lease the Adjacent Property for a price which is
less than the price stated in the Offering Notice, unless Landlord first
reoffers the Adjacent Property to Tenant at such reduced price (in which
event Tenant shall have a period of 30 days following receipt of notice of
the reduced price to elect, by written notice delivered to Landlord, to
purchase or lease the Adjacent Property at the reduced price and otherwise on
the terms and conditions specified by Landlord).
IN WITNESS WHEREOF, the duly authorized representatives of the
parties have executed this lease as of the day and year first written above.
LANDLORD:
NORTHWEST DEVELOPMENT CO.
Date: March 8, 1988 By /s/
--------- --------------------------------
Title Partner
-----------------------------
25-LEASE
TENANT:
FIRST TECHNOLOGY FEDERAL CREDIT UNION
Date: March 8, 1988 By /s/
--------- --------------------------------
Title President
-----------------------------
Unless a different address is indicated
above, notices to Tenant will be
addressed to the Premises.
X.X. Xxx 0000
Xxxxxxxxx, Xxxxxx 00000
26-LEASE
SECOND AMENDMENT TO LEASE
THIS SECOND AMENDMENT TO LEASE dated for reference purposes only May 1,
1988, is by and between NORTHWEST DEVELOPMENT CO. ("Landlord") and FIRST
TECHNOLOGY FEDERAL CREDIT UNION ("Tenant").
R E C I T A L S:
A. Pursuant to a lease dated March 8, 1988 (the "Lease"), Landlord
leased to Tenant certain real property located at the northeast corner of the
intersection of S.W. Tualatin Valley Highway and S.W. 000xx Xxxxxx,
Xxxxxxxxx, Xxxxxx. The Lease was amended by a First Amendment to Lease dated
March 15, 1988 (the "First Amendment").
B. The parties desire to further amend the Lease upon the terms and
conditions set forth below.
NOW, THEREFORE, for valuable consideration, the parties agree as
follows:
1. The first sentence of Paragraph 4(d) shall be amended to read
as follows:
"All alterations, additions, or improvements to the Premises,
including the change of the color of the exterior of the Building
by Tenant, shall be at Tenant's sole cost and expense, and shall
require Landlord's prior written consent which shall not be
withheld unreasonably."
1 - SECOND AMENDMENT TO LEASE
2. Paragraph 10(c) shall be amended to read as follows:
"Neither party shall be liable to the other for any loss or damage
to the Premises or Tenant's personal property thereon caused by any
occurrence and there shall be no subrogated claim by one party's
insurance carrier against the other party arising out of any such
loss, PROVIDED, HOWEVER, that this waiver of liability and
subrogation shall only be effective if the parties can obtain, at
no additional expense, a waiver of subrogation from their
respective insurance carriers."
3. The following language shall be added after the first sentence
of Paragraph 11:
"Provided, however, that so long as SeattleFirst National Bank, its
successors or assigns ("Seafirst"), is the holder of a mortgage or
deed of trust on the Premises, a taking by condemnation shall not
be grounds for terminating this Lease unless 25 percent or more of
(i) the premises, or (ii) the parking area for the Building, is
condemned."
4. The following language shall be added after the first sentence
of Paragraph 17(e):
"Copies of all notices required to be given or actually given under
this Lease shall be sent simultaneously to the holder of any
mortgage or deed of trust on the Premises, to such address as the
holder of the mortgage or deed of trust may designate to Landlord
and Tenant in writing. So long as Seafirst is the holder of a
mortgage or deed of trust on the Premises, such notice shall be
sent to Seafirst at Post Xxxxxx Xxx X00000, Xxxxxxx, Xxxxxxxxxx
00000-0000, or to such other address as Seafirst may specify."
2 - SECOND AMENDMENT TO LEASE
5. The following language shall be added as a new Paragraph 22 to
the Lease, as follows:
"22. TENANT'S OPTION TO PURCHASE. Tenant shall have the right to
purchase the Premises at the end of each five-year rental period
herein by providing Landlord with not less that 180 days' advance
written notice of an intent to exercise this purchase option. The
purchase price for the Premises shall be determined by appraisal in
the following manner: Not later than 10 days after the 180-day
notice is delivered to Landlord, both parties shall select an MAI
appraiser to appraise the Premises. Each appraiser shall be
instructed to assume that the minimum value of the Premises shall
be not less than an amount based upon the rental rate then
specified by Paragraph 3 of this Lease and assuming further that
the Lease term shall expire five years after the closing of the
option to Purchase. If the two appraisals vary by 10 percent or
less, the purchase price shall be the average of the two
appraisals. If the two appraisals vary by more than 10 percent,
then the two MAI appraisers shall select a third MAI appraiser who
shall then select between the two appraisals as to which appraisal
better establishes the fair market value and the appraisal so
selected shall constitute the purchase price for the Premises. The
appraisal costs shall be borne equally by the parties."
6. Except as amended by the First Amendment and this Second
Amendment, the Lease shall remain in full force and effect.
3 - SECOND AMENDMENT TO LEASE
IN WITNESS WHEREOF, the parties have executed this Second Amendment
to Lease as of the date first written above.
NORTHWEST DEVELOPMENT CO.
By: /s/
------------------------------------
Title: Partner
------------------------------
By: /s/
------------------------------------
Title: Partner
------------------------------
FIRST TECHNOLOGY FEDERAL CREDIT UNION
By:
------------------------------------
Title: President
------------------------------
4 - SECOND AMENDMENT TO LEASE
THIRD AMENDMENT TO LEASE
THIS THIRD AMENDMENT TO LEASE dated for reference purposes only March 1, 1989
is by and between NORTHWEST DEVELOPMENT CO. ("Landlord") and FIRST TECHNOLOGY
FEDERAL CREDIT UNION, ("Tenant").
R E C I T A L S:
A. Pursuant to a lease dated March 8, 1988 (the "Lease"), Landlord leased
to Tenant certain real property located at the northeast corner of the
intersection of S.W. Tualatin Valley Highway and S.W. 000xx Xxxxx,
Xxxxxxxxx, Xxxxxx. This lease was amended by the first amendment to the
Lease dated March 15, 1988 ("First Amendment"), and subsequently amended
by the second amendment to the lease dated May 1, 1988 (the "Second
Amendment").
B. The parties desire to further amend the lease upon the terms and
conditions set forth below.
NOW THEREFORE for valuable consideration, the parties agree as follows:
1. Item 5 of the Second Amendment to Lease which refers to a new paragraph
22 to the Lease ("Tenant's Option to Purchase"), is hereby waived by the
Tenant in its entirety. Tenant shall no longer have the right to
purchase the premises at the end of each five-year rental period.
2. LEASE TERM: Page 1 of the original Lease document dated March 8, 1988,
refers to the original lease being for a term of twenty-five years and
is now herein modified to reflect the following lease terms: The
initial lease period will be for a term of twelve years, retroactive to
the date of possession, December 5, 1988. The rental rate will be
calculated as provided for in the original lease document as if the
original twenty-five year lease was in effect.
3. Tenant's Option to Renew: Paragraph 3(g) ("Option and Option Period
Rent"), of the original lease document is herein modified as follows:
Tenant shall have an option to extend the lease for one additional
period of thirteen years. The rental rate for the additional option
period will be calculated as provided for in the original lease document
as if the original twenty-five year lease was in effect.
1 - THIRD AMENDMENT TO LEASE
Tenant shall be required to give Landlord written notice of Tenant's
intent to exercise the renewal option within six months prior to the end
of the tenth year of the original term. In the event that Tenant elects
not to extend the original lease for an additional thirteen years,
Tenant agrees to pay a two-year rental premium in an amount equal to the
prevailing rental rate as if the original lease term would extend
through years thirteen and fourteen. Said rental prepayment premium
will be due and payable upon Tenant's written notice not to extend.
Tenant, in addition to the original option to renew for thirteen
years, shall have an option to extend this lease beyond the original
thirteen year option period and the existing terms and conditions of
Paragraph 3(g). ("Option and Option Period Rent") shall prevail.
4. Rent Schedule: As a matter of clarification, the rent schedule for the
initial term of twelve years and the option period of thirteen years
will be the same as if the original term of the lease was twenty-five
years and will be calculated as provided for in Paragraph 3 ("Rent") of
the original lease document.
5. Except as expressly modified herein, the "Lease" as amended by "First
Amendment" and "Second Amendment" shall remain in full force and effect.
NORTHWEST DEVELOPMENT CO. FIRST TECHNOLOGY FEDERAL CREDIT UNION
By: /s/ By: /s/
------------------------------- ----------------------------------
Title: Partner Title: President
------------------------- ----------------------------
By: /s/
-------------------------------
Title: Partner
-------------------------
2 - THIRD AMENDMENT TO LEASE
AGREED TO by United of Omaha Life Insurance Company, as assignee pursuant to
an Assignment of Loan Documents and Assignment of Assignment of Leases and
Rents executed on December 27, 1988, of the interest and rights of Xxxxxxx
Xxxxxxxx Company, as "Lender," pursuant to Attornment, Nondisturbance and
Estoppel Agreement dated as of December 27, 1988.
UNITED OF OMAHA LIFE INSURANCE COMPANY
By: /s/
-----------------------------------
Title: Asst. V.P.
-----------------------------
3 - THIRD AMENDMENT TO LEASE
