<PAGE> 1
FOX TOWER, L.L.C.
LEASE AGREEMENT
BASIC LEASE INFORMATION
The following Basic Lease Information is hereby incorporated into and made
a part of the Lease between Landlord and Tenant to which it is attached. Each
reference in the Lease to any of the Basic Lease Information shall mean the
respective information set forth below and such information shall be deemed
incorporated as a part of the terms provided under the particular Lease Section
pertaining to such information. In the event of any conflict between any Basic
Lease Information and the Lease, the former shall control.
1. DATE OF LEASE:as of June 20, 2000
2. BUILDING: Fox Tower
3. LANDLORD: Fox Tower, L.L.C., an Oregon limited liability company
4. LANDLORD'S ADDRESS FOR GIVING OF NOTICES AND PAYMENT OF RENT:
TMT Development Co.
1000 SW Broadway, Suite 970
Portland, Oregon 97205
5. TENANT: WebTrends Corporation, an Oregon corporation
6. TENANT'S ADDRESS FOR GIVING OF NOTICES:
WebTrends Corporation
851 SW Sixth, Suite 1200
Portland, Oregon 97204
7. PREMISES: 57,855 rentable sq. ft. including the entire 5th (19,290
rentable sq. ft.), 6th (19,290 rentable sq. ft.) and
15th (19,275 rentable sq. ft.) floors. (Landlord has
advised Tenant that the Building does not contain a 13th
floor)
8. PARKING SPACE ALLOWANCE: See Addendum
9. USE OF PREMISES: (Section 2) General Office
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10. SECURITY DEPOSIT: None.
11. COMMENCEMENT DATE: 5th Floor - November 1, 2000
6th Floor - April 1, 2001
15th Floor - October 1, 2001
Subject to adjustment as provided in Section 30.
12. EXPIRATION DATE: (Section 1.3) December 31, 2006 (subject to
Tenant's options to renew set forth
in the Addendum)
13. BASE RENT:
<TABLE>
<CAPTION>
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MONTH PSF/ANNUAL MONTHLY
----- ----------- -------
<S> <C> <C>
1-36 $19.25 (See Section 1.4)
37-74 $21.25
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</TABLE>
14. TENANT'S PERCENTAGE OF OPERATING EXPENSES (Section 5.2)
15. BROKERS: Cushman & Wakefield represent the Landlord; Grubb & Ellis
represents the Tenant.
<TABLE>
<CAPTION>
--------------------------------------------------------------------------------
<S> <C>
LANDLORD: TENANT:
FOX TOWER, L.L.C., an Oregon limited WEBTRENDS CORPORATION, an Oregon
liability company Corporation
By:__________________________________ By:___________________________________
Title:_______________________________ Title:________________________________
Date:________________________________ Date:_________________________________
--------------------------------------------------------------------------------
</TABLE>
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<PAGE> 3
FOX TOWER, L.L.C.
LEASE AGREEMENT
TERMS AND CONDITIONS
SECTION 1. DEMISE AND RENT
1.1. DEMISE. Landlord hereby leases to Tenant and Tenant hereby leases
from Landlord, upon and subject to the terms, covenants, provisions and
conditions of this Lease Agreement (herein called the "LEASE"), the premises
described in Section 1.2 in the building (herein called "BUILDING") located on
the Land described on EXHIBIT A attached hereto and incorporated herein.
Landlord covenants that upon the Commencement Date, Landlord will have fee
simple title to the Building and/or Land and full right and authority to make
and execute this Lease.
1.2. PREMISES. The Premises (herein called "PREMISES") leased to Tenant
are described in the Basic Lease Information, and are outlined on the floor
plan(s) for the Building attached hereto as EXHIBIT B and incorporated herein by
this reference. The rentable area of the Premises shall be determined in
accordance with the Standard Method for Measuring Floor Area in Office Buildings
published by Building Owners and Managers Association International and approved
June 7, 1996 by American National Standards Institute, Inc. as ANSI/BOMA
Z65.1-1996 (the "BOMA STANDARDS"). Landlord represents that the load factor on
multi-tenant floors is 14.8% where the multi-tenant floor uses a standard Z
corridor and the load factor on a full floor tenancy is 5.349%. The load factor
on multi-tenant floors which do not use a standard Z corridor may vary.
1.3. COMMENCEMENT AND EXPIRATION DATES. The term of this Lease (herein
called "LEASE TERM") shall commence on the Commencement Dates specified in the
Basic Lease Information and end on the Expiration Date specified in the Basic
Lease Information (subject to adjustment as provided in Section 30) unless
sooner terminated as herein provided. After the Commencement Dates have
occurred, the parties shall execute a supplemental memorandum stating the actual
Commencement Dates and Expiration Date.
1.4. RENT. The rents shall be and consist of Base Rent (herein called
"BASE RENT") and Additional Rent (herein called "ADDITIONAL RENT"). For purposes
of this Lease Agreement, Base Rent and Additional Rent are referred to
collectively as "RENT." Base Rent shall be the amount indicated in the Basic
Lease Information. Base Rent shall be payable in equal monthly installments in
advance on the first day of each and every calendar month during the term of
this Lease (except to the extent otherwise specifically provided elsewhere in
this Lease. Payment of Base Rent and Additional Rent for the 5th Floor of the
Premises shall commence on the 5th
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Floor Commencement Date and shall be equal to the 5th Floor rentable square feet
multiplied by the (i) Base Rent per rentable square foot set forth in the Basic
Lease Information, plus (ii) Additional Rent per rentable square foot as set
forth in Section 4.1. Payment of Base Rent and Additional Rent for the 6th Floor
of the Premises shall commence on the 6th Floor Commencement Date and shall be
equal to the 6th Floor rentable square feet multiplied by the (i) Base Rent per
rentable square foot set forth in the Basic Lease Information, plus (ii)
Additional Rent per rentable square foot as set forth in Section 4.1 per
rentable square foot set forth in the Basic Lease Information. Payment of Base
Rent for the 15th Floor of the Premises shall commence on the 15th Floor
Commencement Date and shall be equal to the 15th Floor rentable square feet
multiplied by the Base Rent per rentable square foot set forth in the Basic
Lease Information. Payment of Additional Rent for the 15th Floor of the Premises
shall commence on the date Tenant occupies the 5th Floor for the operation of
business and shall be equal to Additional Rent as set forth in Section 4.1 per
rentable square foot set forth in the Basic Lease Information. Additional Rent
shall consist of all other sums of money as shall become due from and payable by
Tenant to Landlord hereunder. All Rent shall be paid in lawful money of the
United States of America to Landlord at its office or such other place, as
Landlord shall designate by notice to Tenant. Tenant shall pay the Base Rent and
Additional Rent promptly when due without notice or demand therefor and without
any abatement, deduction or setoff for any reason whatsoever, except as
expressly provided in this Lease. If the Commencement Date for any floor occurs
on a day other than the first day of a calendar month, or the Expiration Date
occurs on a day other than the last day of a calendar month, the Base Rent for
such floor for that partial calendar month shall be prorated on a daily basis.
1.5. LATE CHARGE. Tenant recognizes that late payment of any Rent from
Tenant to Landlord will result in administrative expense to Landlord, the extent
of which additional expense is extremely difficult and economically impractical
to ascertain. Tenant therefore agrees that if Rent from Tenant to Landlord
remains unpaid ten (10) days after said amount is due, the amount of such unpaid
Rent shall be increased by a late charge to be paid to Landlord by Tenant in an
amount equal to three percent (3%) of the amount of the delinquent Rent or other
payment. Tenant agrees that such amount is a reasonable estimate of the loss and
expense to be suffered by Landlord as a result of such late payment by Tenant
and may be charged by Landlord to defray such loss and expense. The provisions
of this Section in no way relieve Tenant of the obligation to pay Rent on or
before the date on which it is due, nor do the terms of this Section in any way
affect Landlord's remedies pursuant to Section 21 of this Lease in the event
Rent is past due. Any such late charge not billed to Tenant within three hundred
sixty (360) days of any late payment shall be deemed waived by Landlord. No late
charge shall be assessed unless the Rent due remains unpaid after three (3)
business days' written notice from Landlord that such late charge has accrued,
provided however, Tenant shall be entitled to only two (2) such notices every
twelve (12) months.
1.6. CONFIDENTIALITY. Tenant shall use commercially reasonable efforts to
keep the Rent and other terms of this Lease confidential from other current and
prospective occupants of the Building and any other buildings owned by Landlord
except to the extent disclosure is reasonably necessary in the conduct of
Tenant's business or as required by law.
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SECTION 2. USE
2.1 GENERALLY. Tenant shall use and occupy the Premises continuously
during the term of this Lease for the use specified in the Basic Lease
Information and for no other purpose. If any governmental license or permit,
other than a Certificate of Occupancy, shall be required for the proper and
lawful conduct of Tenant's business in the Premises or any part thereof, Tenant,
at its expense, shall duly procure and thereafter maintain such license or
permit and submit the same to Landlord for inspection. Tenant shall at all times
comply with the terms and conditions of each such license or permit. Landlord
shall obtain any and all licenses or permits associated with the Landlord's Work
or required for the continuous operation of the Building generally such as
elevator permits, boiler permits and building permits. Tenant shall not do or
permit anything to be done in or about the Premises which will in any way
obstruct or interfere with the rights of other tenants or occupants of the
Building or injure or unreasonably annoy them, nor use or allow the Premises to
be used for any improper, immoral, unlawful or unreasonably objectionable
purpose, nor shall Tenant cause or maintain or permit any nuisance in, on, or
about the Premises. Tenant shall not commit or allow the commission of any waste
in, on, or about the Premises. Tenant shall not use the Premises or permit
anything to be done in or about the Premises which will in any way conflict with
any Legal Requirements. Except for the customary activities of general office
tenants in the central business district, Tenant shall not do or permit anything
to be done on or about the Premises or bring or keep anything therein which will
in any way increase the rate of any insurance upon the Building in which the
Premises are situated or any of its contents or cause a cancellation of said
insurance. Except as otherwise provided in this Lease, Tenant shall, at its sole
cost and expense, promptly comply with all Legal Requirements and with the
requirements of any board of fire underwriters or other similar body now or
hereafter constituted relating to or affecting the condition, use, or occupancy
of the Premises, excluding structural changes not required as a result of: (i)
alterations or improvements made by or for Tenant; or (ii) Tenant's acts. The
judgment of any court of competent jurisdiction or the admission of Tenant in an
action against Tenant, whether Landlord be a party thereto or not, that Tenant
has so violated any such Legal Requirements, shall be conclusive of such
violation as between Landlord and Tenant. Tenant shall use its commercially
reasonable efforts to prevent any violation of applicable Legal Requirements by
its partners, directors, officers, agents and employees. Notwithstanding
anything herein to the contrary, Tenant shall have the right to cease operations
in its Premises for remodeling or repairs not to exceed thirty (30) days.
2.2 ADA LAW COMPLIANCE. Landlord and Tenant acknowledge that the
provisions of the Americans with Disabilities Act (the "ADA") allow allocation
of responsibility for compliance with the terms and conditions of the ADA in the
Lease. Landlord and Tenant agree that the responsibility for compliance with the
ADA shall be allocated as set forth in this Section. Tenant shall be responsible
for compliance with the applicable provisions of the ADA with respect to all
improvements within the Premises except that Landlord represents that any
improvements designed by Landlord's architect and installed by Landlord pursuant
to EXHIBIT C will conform to the requirements of the ADA Compliance Guidelines
in effect as of the date of
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issuance of the building permit for such work and Landlord shall be responsible,
at its expense, for compliance of such improvements with such requirements.
Landlord shall be responsible for compliance with the provisions of title III of
the ADA with respect to the exterior of the Building and the land including
parking areas, sidewalks and walkways, and the like, together with all common
areas of the Building. Neither Landlord nor Tenant shall be obligated to
supervise, monitor, or otherwise review the compliance activities of the other.
Tenant acknowledges that, except as herein otherwise expressly provided, the
expense of Landlord's fulfillment of its ADA obligations is an element of
Operating Expenses as such term is defined in the Lease. Any such ADA expense
for capital improvements shall be amortized over the useful life of the same for
purposes of Operating Expenses in the same manner as provided in the Lease for
capital improvements intended to reduce Operating Expenses. References in this
Lease to Legal Requirements shall be deemed to refer to the ADA among other
laws.
2.3 ENVIRONMENTAL LAW COMPLIANCE. For purposes of this Section the term
"HAZARDOUS SUBSTANCES" shall mean and include all hazardous and toxic
substances, waste or materials, any pollutant or contaminant, including, without
limitation, PCBs, asbestos, asbestos-containing material, and raw materials that
are included under or regulated by any Environmental Laws. For purposes of this
Lease the term "ENVIRONMENTAL LAWS" shall mean and include all federal, state
and local statutes, ordinances, regulations and rules presently in force or
hereafter enacted relating to environmental quality, contamination, and clean-up
of Hazardous Substances, including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C.
Section 6091 et seq., as amended by the Superfund Amendments and Reauthorization
Act of 1986, the Resource Conservation and Recovery Act of 1976, 42 U.S.C.
Section 6091 et seq., as amended by the Hazardous and Solid Waste Amendments of
1984, and state superlien and environmental clean-up statutes and all rules and
regulations presently or hereafter promulgated under said statutes as amended.
References in this Lease to Legal Requirements shall be deemed to refer to
Environmental Laws among other laws. Landlord represents that to the best of its
current actual knowledge, the Building and the Land are in compliance with all
Environmental Laws respecting Hazardous Substances, and that Landlord has
received no notice of any pending or threatened lien, action or proceeding
respecting any alleged violation of Environmental Laws respecting Hazardous
Substances that has occurred on or near the Land or in or about the Building.
Landlord shall be responsible for the handling, removal and treatment of any
Hazardous Substances in the Premises, the Building or Land which are not the
obligation of Tenant. Tenant acknowledges that the expense of compliance with
Environmental Laws is an element of Operating Expenses except to the extent that
any such expense resulted from the fault of the Landlord or breach of the
representation made by Landlord in this Section 2.3. Landlord shall use
reasonable efforts to recover any expense of compliance with Environmental Laws
from any third party who is liable for the same and credit any such recovery
against Operating Expenses. If any lender or governmental agency shall ever
require testing to ascertain whether or not there has been any release of
Hazardous Substances, then the reasonable costs thereof shall be reimbursed by
Tenant to Landlord upon demand as additional charges if such requirement applies
to the Premises and such release is caused by Tenant or person acting under
Tenant. In addition, Tenant shall execute affidavits, representations and the
like from time to time at Landlord's reasonable request concerning Tenant's best
knowledge and belief regarding
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the presence of Hazardous Substances on the Premises. Tenant shall be permitted
to use customary cleaning and office supplies in the Premises. In all events,
Tenant shall indemnify Landlord in the manner elsewhere provided in this Lease
from any release of Hazardous Substances on the Premises or elsewhere if caused
by Tenant or person acting under Tenant.
2.4 INDEMNITY REGARDING LEGAL VIOLATIONS. Tenant shall indemnify and
hold harmless Landlord and all Superior Lessors and/or Superior Mortgagees and
its and their respective partners, directors, officers, agents and employees
from and against any and all claims arising from or in connection with the
violation of Legal Requirements including but not limited to the ADA or
Environmental Laws, occurring in, at or about the Building and the Land due to
the acts or omissions of Tenant or its partners, directors, officers, agents and
employees; together with all costs, expenses and liabilities incurred or in
connection with each such claim, action, proceeding or appeal, including,
without limitation, all attorneys' fees and expenses. Landlord shall indemnify
and hold harmless Tenant and its partners, directors, officers, agents and
employees from and against any and all claims arising from or in connection with
the violation of Legal Requirements including but not limited to the ADA or
Environmental Laws occurring in, at or about the Building and the Land due to
the acts or omissions of Landlord or its partners, directors, officers, agents
and employees; together with all costs, expenses and liabilities incurred or in
connection with each such claim, action, proceeding, or appeal, including,
without limitation, all attorneys' fees and expenses. The foregoing indemnities
shall survive the expiration or earlier termination of the Lease term.
SECTION 3. TENANT'S ACCEPTANCE AND MAINTENANCE OF PREMISES
Landlord shall notify Tenant that each floor of the Premises is
substantially complete, as defined in Section 31.6, ten (10) business days prior
to Landlord's delivery of that portion of the Premises. Upon delivery of each
floor of the Premises to Tenant, Landlord and Tenant shall conduct a walk
through of Premises and create a punch list of items of any deficiencies then
apparent in Landlord's Work and the Tenant Improvement Work performed by
Landlord's contractor ("PUNCH LIST"). Landlord shall promptly commence and
diligently prosecute until completed the items set forth in the Punch List.
Landlord's obligation and/or liability to Tenant for deficiencies shall be
limited to the correction of the noted deficiencies set forth on the Punch List,
which correction of shall be made to the extent required for compliance with
Landlord's Work and the Tenant Improvement Work performed by Landlord's
contractor as set forth in EXHIBIT C. Tenant shall be deemed to have accepted
the Premises upon Landlord's delivery of possession, unless the failure to
complete the items set forth on the Punch List means that the Premises are not
substantially complete, in which case acceptance shall be upon completion of
such Punch List work. Landlord's obligations to maintain the Building are as set
forth in Section 14.1 hereof. Tenant shall, at all times during the term hereof
at Tenant's sole cost and expense, keep the following items in good order,
condition and repair, reasonable wear and tear excepted: (i) floor coverings,
(ii) wall coverings, (iii) paint, (iv) casework, (v) ceiling tiles, (vi) all of
Tenant's Property (as defined in Section 13.2 herein); and (vii) any and all
Tenant Improvements. Landlord shall have no obligation to alter, remove,
improve, repair, decorate, or paint the Premises or any part thereof except as
specified in EXHIBIT C attached hereto and made
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a part hereof. No representations respecting the condition of the Premises or
the Building have been made by Landlord to Tenant, except as herein set forth.
SECTION 4. OPERATING EXPENSES
4.1 OPERATING EXPENSES. For the purposes of this Lease, the term
"OPERATING EXPENSES" shall mean all reasonable expenses paid or incurred by
Landlord (or on Landlord's behalf) as reasonably determined by Landlord to be
necessary or appropriate for the efficient operation, maintenance and repair of
the Land and/or Building, including the common areas of the Building, including
without limitation: (i) salaries, wages, employer's social security taxes,
unemployment taxes or insurance and other taxes which are levied on wages and
salaries, medical, surgical, union and general welfare benefits (including,
without limitation, disability and group life insurance) and pension payments of
employees of Landlord to the extent such employees are engaged in the repair,
operation and maintenance of the Land and/or Building (but specifically
excluding any administrative position above the property manager for the
Building and/or Land); (ii) payroll taxes, workers' compensation insurance,
uniforms and related expenses for such employees; (iii) the cost of all charges
for gas, steam, electricity, heat, ventilation, air-conditioning, water and
other utilities furnished to the Building, together with any taxes on such
utilities; (iv) the cost of painting of public areas; (v) the cost of all
charges of insurance, including rent loss insurance not to exceed twelve (12)
months, casualty, liability, fire with extended coverage endorsement and
fidelity insurance, with regard to the Land and/or Building and the maintenance
and/or operation thereof; (vi) the cost or rental of all supplies for the Land
or the Building, including without limitation, cleaning supplies, light bulbs,
tubes and ballasts, materials and equipment, and sales and other taxes thereon;
(vii) the cost of hand tools and other movable equipment used in the repair,
maintenance or operation of the Building amortized over the useful life of such
hand tools and movable equipment (as reasonably estimated by Landlord under
generally accepted accounting principles consistently applied ("GAAP"); (viii)
the cost of all charges for window and other cleaning and janitorial and
security services; (ix) charges of independent contractors performing repairs or
services to the Land and/or Building including water treatment, vermin
extermination, facade maintenance, roof maintenance, life safety and fire alarm
equipment and other costs for necessary services; (x) non-capital repairs,
replacements and general maintenance to the Building; (xi) remodeling of the
public and common areas of the Building including, without limitation,
repainting, replacement and repair of furnishings, fixtures, accessories,
carpeting or other floor covering, wall and window coverings in the public and
common areas, the cost of which shall be amortized (with interest at the rate of
nine percent (9%) per annum on the unamortized balance) over the useful life of
the improvements as reasonably estimated by Landlord under GAAP; provided,
however Operating Expenses shall not include costs for remodeling any portion of
the Building during the first five (5) years of the Lease term; (xii)
alterations and improvements to the Building made by reason of the laws and
requirements of any public authorities or the requirements of insurance bodies;
(xiii) management fees paid to a third party, or, if no managing agent is
employed by Landlord, Landlord shall be entitled to charge a management fee
which is not in excess of three percent (3%) of base rent and such fee shall be
included in the Operating Expenses; (xiv) the cost of any capital improvements
or repairs to the Building and/or of any machinery or equipment installed
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in the Building amortized (with interest at the rate of nine percent (9%) per
annum on the unamortized balance) over the useful life of the improvement,
machinery and/or equipment as reasonably estimated by Landlord under GAAP, which
is made or becomes operational, as the case may be, after the completion of the
construction of the Building and which have a reasonable probability of reducing
the expenses which otherwise would be included in Operating Expenses; (xv)
legal, accounting and other professional fees incurred in connection with
operation, maintenance and management of the Land and/or Building; (xvi) the
cost of providing elevator service; (xvii) the cost of landscape and parking
area maintenance and repair; (xviii) Taxes as defined in Section 4.3; and (xix)
all other charges properly allocable to the operation, repair and maintenance of
the Building in accordance with generally accepted accounting principles.
Landlord shall use reasonable efforts to keep the Operating Expenses to a
minimum while operating the Building in a first class manner consistent with
other comparable Class A high-rise office buildings in the Portland, Oregon,
central business district. Landlord shall use reasonable efforts to recover any
portion of the Operating Expenses from any third party who is liable for the
same other than under a lease for space in the Building and credit any such
recovery against Operating Expenses.
4.2 EXCLUSIONS FROM OPERATING EXPENSES. Operating Expenses shall not
include: (i) depreciation or amortization (except as provided above in Section
4.1); (ii) interest on and amortization of debts (except as provided above in
Section 4.1); (iii) leasehold improvements made for new or existing tenants of
the Building; (iv) leasing commissions, attorneys' fees, costs and disbursements
and other expenses (including advertising) incurred in connection with leasing,
renovating, or improving space for tenants or other occupants or prospective
tenants or occupants of the Building; (v) refinancing costs; (vi) the cost of
any work or services performed for any tenant(s) of the Building (including
Tenant), whether at the expense of Landlord or such tenant(s), to the extent
that such work or services is in excess of the work or services which Landlord,
at its expense, is required to furnish to Tenant under this Lease with Tenant;
(vii) the cost of any electricity or other utilities furnished to the Premises
or any other space in the Building leased to tenants in excess of the
electricity or other utilities to be provided by Landlord under this Lease with
Tenant; (viii) damages recoverable by any tenant due to violation by Landlord of
any of the terms and conditions of this Lease or any other lease relating to the
Building; (ix) repairs occasioned by fire, windstorm or other casualty, to the
extent such repairs are paid for by insurance proceeds; (x) capital repairs and
replacements (except as provided above in Section 4.1); (xi) any ground lease
rental; (xii) Landlord's general corporate overhead and general and
administrative expenses (except for the management fee under Section 4.1);
(xiii) any compensation paid to clerks, attendants or other persons in
commercial concessions operated by Landlord or in the parking garage of the
Building and/or all fees paid to any parking facility operator; (xiv)
advertising and promotional expenditures, and costs of signs in or on the
Building identifying the owner of the Building or other tenants' signs (other
than the Building directory); (xv) costs incurred in connection with upgrading
the Building structure to comply with disability, life, fire and safety codes,
ordinances, statutes, or other laws in effect prior to the Commencement Date,
including, without limitation, the ADA; (xvi) tax penalties incurred as a result
of Landlord's negligence, inability, or unwillingness to make payments and/or to
file and tax or information returns when due; (xvii) costs arising from
Landlord's charitable or political
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contributions; (xviii) costs arising from latent defects in the base, shell or
core of the Building or improvements installed by Landlord or repair thereof;
(xix) costs for sculpture, paintings or other objects of art; (xx) costs arising
from claims or disputes in connection with potential or actual litigation or
arbitration pertaining to Landlord and/or the Building and/or Land; (xxi) costs
or expenses incurred by Landlord not directly related to the Land, the Building,
and/or its operations including, without limitation, compensation paid to
officers, executives, or partners of Landlord; (xxii) costs incurred for
entertainment, dining, travel or gifts for any purpose; (xxiii) taxes, except
for those set forth in Section 4.3; (xxiv) any cost or expenditure (or any
portion thereof) for which Landlord is reimbursed other than through operating
expense clauses in tenant leases, whether by insurance proceeds or otherwise;
(xxv) costs incurred by Landlord for Landlord's Work; and (xxvi) any other
expenses which in accordance with generally accepted accounting principles,
consistently applied, would not normally be treated as Operating Expenses by
comparable landlords of comparable buildings.
4.3 TAXES. The term "TAXES" shall include (i) all real property taxes
and assessments and personal property taxes, charges, rates, duties and
assessments rated, levied or imposed by any governmental authority with respect
to the Land, the Building and any improvements, fixtures and equipment located
therein or thereon, and with respect to all other property of Landlord, real or
personal, located in or on the Land or the Building and used in connection with
the operation of the Building; (ii) any tax in lieu of a real property tax;
(iii) any tax or excise levied or assessed by any governmental authority on the
rentals payable under this Lease or rentals accruing from the use of the Land or
the Building; provided that this shall not include federal or state, corporate
or personal income taxes; (iv) any tax or excise imposed or assessed against
Landlord which is measured or based in whole or in part on the capital employed
by Landlord to improve the Land and construct the Building; and (v) the City of
Portland, Oregon business property management license fee.
SECTION 5. PAYMENT OF OPERATING EXPENSES
5.1 OPERATING YEAR. As used in this Section 5, the term "OPERATING YEAR"
shall mean each calendar year of the Lease Term and in the event this Lease
begins or ends on any date other than the first day of the calendar year, the
calculations, costs and payments referred to herein shall be prorated as
provided in Section 31.11.
5.2 TENANT'S PRO RATA SHARE. Tenant shall pay, as Additional Rent, its
pro rata share of the Operating Expenses of the office portion of the Building,
as reasonably allocated by Landlord. Upon request, Landlord shall provide its
allocation figures to Tenant. Tenant's pro rata share of the Operating Expenses
of the office portion of the Building for each Operating Year shall be equal to
the actual Operating Expenses for each Operating Year multiplied by Tenant's
percentage (as specified in the Basic Lease Information, and as adjusted as
provided herein). The term "TENANT'S PERCENTAGE" shall mean a percentage, the
numerator of which is the number of rentable square feet in the Premises and the
denominator of which is the total number of rentable square feet of the office
portion of the Building, whether or not such space is actually rented. The
Tenant's percentage (as specified in the Basic Lease Information, and adjusted
as
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provided herein) shall be changed from time to time to reflect any change in the
total rentable square footage in the office portion of the Building. During the
periods when the Building is not fully occupied, Landlord shall reasonably
adjust Operating Expenses to reflect the costs that would normally have been
incurred had the Building been fully occupied for the entire period and the
Building had been fully assessed for property tax purposes ; provided, however,
Landlord shall not collect or be entitled to collect Operating Expenses from all
of its tenants in an amount which is in excess of one hundred percent (100%) of
the Operating Expenses actually paid by Landlord in connection with the
operation of the Building and Landlord shall make no profit from Landlord's
collection of Operating Expenses. The Building shall be considered fully
occupied when occupancy reaches ninety percent (90%). Controllable Operating
Expenses, as hereinafter defined, in cumulative total, shall not materially
exceed the average of such items of Operating Expenses, in cumulative total, as
reported in the Building Owners and Managers Association [BOMA] International
Experience Exchange Report for the year in question for office buildings located
in Portland, Oregon between 300,000 to 599,000 square feet. Controllable
Operating Expenses shall be those items of Operating Expenses that are within
Landlord's reasonable control. Controllable Operating Expenses shall exclude
items that are not within Landlord's reasonable control such as Taxes, utilities
and insurance.
5.3 WRITTEN STATEMENT OF ESTIMATE. Prior to the commencement of each
Operating Year during the Lease Term, Landlord shall furnish Tenant with a
written statement setting forth Tenant's pro rata share of the estimated
Operating Expenses for the next Operating Year. Tenant shall pay to Landlord as
Additional Rent commencing on January 1 of the Operating Year, and thereafter on
the first day of each calendar month, an amount equal to one-twelfth of the
amount of Tenant's pro rata share as shown in Landlord's written statement. In
the event Landlord delivers the written statement late, Tenant shall continue to
pay to Landlord an amount equal to one-twelfth of Tenant's pro rata share of the
estimated Operating Expenses for the immediately preceding Operating Year until
Landlord does furnish the written statement, at which time Tenant shall pay the
amount of any excess of the Tenant's pro rata share for the expired portion of
the current Operating Year over the Tenant's actual payments during such time
and any excess payments by Tenant shall be credited to the next due payment of
Rent from Tenant until fully credited. The late delivery of any written
statement by Landlord shall not constitute a waiver of Tenant's obligation to
pay its pro rata share of Operating Expenses nor subject the Landlord to any
liability, but Landlord shall use reasonable efforts to deliver such written
statements of estimated increase in Operating Expenses as soon as reasonably
possible after the commencement of each Operating Year.
5.4 FINAL WRITTEN STATEMENT. Within 120 days after the close of each
Operating Year during the Lease term, Landlord shall deliver to the Manager of
Corporate Facilities for Tenant a written statement (the "OPERATING STATEMENT")
setting forth Tenant's actual pro rata share of the Operating Expenses for the
preceding Operating Year. In the event Tenant's pro rata share of the actual
Operating Expenses is in excess of the Tenant's pro rata share of estimated
Operating Expenses, Tenant shall pay the amount of such excess to Landlord as
Additional Rent within thirty (30) days after receipt of such statement by
Tenant. In the event Tenant's pro rata share of the actual Operating Expenses is
less than the Tenant's pro rata share of the estimated Operating
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Expenses actually paid by Tenant, then the amount of the excess overpayment
shall be paid by Landlord to Tenant within thirty (30) days following the date
of such statement or Landlord may elect to apply the overpayment to Tenant's
next Rent payment, reimbursing only the excess over such next payment, if any.
The late delivery of any written statement by Landlord shall not constitute a
waiver of Tenant's obligation to pay its pro rata share of Operating Expenses,
but Landlord shall use reasonable efforts to deliver such written statements as
soon as reasonably possible after the commencement of each Operating Year.
5.5 TENANT EXAMINATION. The Operating Statement referred to herein need
not be audited but shall contain sufficient detail to enable Tenant to verify
each category of Operating Expenses and the calculation of its pro rata share.
In addition, Tenant, upon at least five (5) days' advance written notice to
Landlord and during business hours, may audit and/or examine any invoices,
receipts, canceled checks, vouchers or other instruments used to support the
figures shown on the Operating Statement, provided, however, that Tenant shall
only be entitled to such an audit once in each Operating Year. If the results of
the audit show an overage charged to Tenant of more than five percent (5%) of
the actual amount owed by Tenant, then Landlord shall pay the reasonable cost of
such audit. If the audit indicates an overpayment by Tenant, then Tenant shall
be entitled to the amount of the overpayment paid in the form of either (i) a
refund from Landlord within thirty (30) days after receipt of such audit or, in
the event Landlord fails to make such refund, (ii) a credit of such excess
against payments becoming due under this Lease or any other payment obligations
under this Lease until fully credited. If Landlord fails to refund such excess
in accordance with this Section 5.5 within thirty (30) days after receipt of
such audit or in the event such excess is not fully credited against payments
becoming due under this Lease within thirty (30) days after receipt of such
audit, the overpayment shall bear interest from the expiration of such thirty
(30) day period at the rate set forth in Section 21.4 below.
5.6 DISPUTES. Each such Operating Statement given by Landlord pursuant
to this Section shall be conclusive and binding upon Tenant unless within one
hundred twenty (120) days after the receipt of such Operating Statement Tenant
shall notify Landlord that it disputes the correctness of the Operating
Statement, specifying the particular respects in which the Operating Statement
is claimed to be incorrect. If such disputes shall not have been settled by
agreement, the parties agree to resolve such dispute by binding arbitration in
Portland, Oregon before a single arbitrator within sixty (60) days of such
notice. Unless otherwise agreed, the arbitration shall be conducted in
accordance with the rules of the Arbitration Service of Portland ("ASP"), or, if
ASP is not in existence, the Commercial Rules of the American Arbitration
Association. In the event the arbitration establishes that Tenant is due
reimbursement for an overpayment, Landlord shall pay such amount to Tenant
within thirty (30) days after receipt of the arbitrator's award or credit such
amount against payments becoming due under this Lease or any other payment
obligations under this Lease until fully credited. If Landlord fails to pay such
amount in accordance with this Section 5.6 within thirty (30) days after receipt
of the arbitrator's award or in the event such award is not fully credited
against payments becoming due under the Lease within thirty (30) days after
receipt of the arbitrator's award, the overpayment shall bear interest from the
expiration of such thirty (30) day period at the rate set forth in Section 21.4
below. In the event of an arbitration, the prevailing party shall be entitled to
recover the costs of
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the arbitration as determined by the arbitrator. Even if any legal proceeding
over the Operating Statement is resolved against Landlord this Lease shall
remain in full force and effect and Landlord shall not be liable for any
consequential damages, and pending the determination of such dispute, Tenant,
within ten (10) days of receipt of such Operating Statement, shall pay
Additional Rent in accordance with the Operating Statement, without prejudice to
Tenant's position.
5.7 PAYMENT. If an Operating Year ends after the expiration or
termination of this Lease, and there is any underpayment or overpayment of the
Additional Rent in respect thereof, the appropriate party shall pay the amount
due to the other party within thirty (30) days after receipt of the Operating
Statement.
SECTION 6. SECURITY DEPOSIT
INTENTIONALLY DELETED
SECTION 7. SUBORDINATION, NOTICE TO SUPERIOR LESSORS AND MORTGAGEES
7.1 SUBORDINATION. Any lease to which this Lease is, at the time
referred to, subject and subordinate is herein called "SUPERIOR LEASE" and the
lessor of a Superior Lease or its successor in interest, at the time referred
to, is herein called "SUPERIOR LESSOR," and any mortgage to which this Lease is,
at the time referred to, subject and subordinate is herein called "SUPERIOR
MORTGAGE" and the holder of a Superior Mortgage, or its successor in interest,
at the time referred to, is herein called "SUPERIOR MORTGAGEE." This Lease, and
all rights of Tenant hereunder, are and shall be subject and subordinate to any
ground leases covering the Land and/or the Building now or hereafter existing,
and to all mortgages which may now or hereafter affect the Land and/or the
Building and/or any of such leases, whether or not such mortgages shall also
cover other lands and/or buildings and/or leases, to each and every advance made
or hereafter to be made under such mortgages, and to all renewals,
modifications, replacements and extensions of such leases and such mortgages;
provided, however, the subordination of this Lease, as aforesaid, shall be
subject to a condition that the Superior Lessor or Superior Mortgagees provide
Tenant with a nondisturbance agreement in substantially the form attached hereto
as EXHIBIT F-1 (CONSTRUCTION LENDER) or EXHIBIT F-2 (PERMANENT LENDER) or any
other instrument that Landlord, any Superior Lessor or any Superior Mortgagee
may reasonably request to evidence such subordination subject to approval by
Tenant which approval shall not be unreasonably withheld. In confirmation of
such subordination, Tenant shall promptly execute, acknowledge or deliver any
instrument that Landlord, any Superior Lessor or any Superior Mortgagee may
reasonably request to evidence such subordination. Tenant shall execute,
acknowledge or deliver any such instruments within fifteen (15) business days
after request therefor.
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7.2 NOTICE. Tenant agrees to give any Superior Mortgagee or Superior
Lessor, by registered mail, a copy of any notice of default served upon the
Landlord, provided that prior to such notice Tenant has been notified in writing
(by way of notice of assignment of rents and leases, or otherwise) of the
address of such Superior Mortgagee or Superior Lessor. If Landlord shall have
failed to cure such default within thirty (30) days the Superior Mortgagee or
Superior Lessor shall have an additional thirty (30) days within which to cure
such default or if such default cannot be cured within that time, then such
additional time as may be necessary to cure such default (including the time
necessary to foreclose or otherwise terminate its Superior Mortgagee or Superior
Lessor, if necessary to effect such cure), and this Lease shall not be
terminated so long as such remedies are being diligently pursued.
7.3 ATTORNMENT. For the purposes of this Section, the term "SUCCESSOR
LANDLORD" shall mean the Superior Lessor or Superior Mortgagee if the same
succeeds to the rights of Landlord under this Lease, whether through possession
or foreclosure action or delivery of a new lease or deed, or any third party
that succeeds to the rights of Landlord under this Lease by virtue of having
purchased the Land and the Building at a foreclosure sale. At the request of a
Successor Landlord and upon such Successor Landlord's written agreement to
accept Tenant's attornment, and to not disturb Tenant's quiet possession of the
Premises, Tenant shall attorn to and recognize such Successor Landlord as
Tenant's Landlord under this Lease and shall promptly execute and deliver an
instrument in the form attached as EXHIBIT F-1 (Construction Lender) or EXHIBIT
F-2 (Permanent Lender) or any other instrument that such Successor Landlord may
reasonably request to evidence such attornment and approved by Tenant, which
approval shall not be unreasonably withheld. Upon such attornment this Lease
shall continue in full force and effect as a direct lease between the Successor
Landlord and Tenant upon all of the terms, conditions and covenants as are set
forth in this Lease except that the Successor Landlord shall not: (i) be liable
for any previous act or omission of Landlord under this Lease except that Tenant
shall retain all rights and remedies available to Tenant at law or pursuant to
the Lease against Landlord; (ii) be subject to any offset, deficiency or defense
which theretofore shall have accrued to Tenant against Landlord except to the
extent such offsets or defenses arise out of acts or omissions of Successor
Landlord, and provided further, that nothing herein shall limit Tenant's offsets
or defenses which shall accrue to Tenant against Successor Landlord during the
time Successor Landlord holds title to or has possession of the Premises for
breach of the maintenance and repair responsibilities or for breach of the
covenant of quiet enjoyment under the Lease, or for any offsets or defenses
which arise therefrom; (iii) be bound by any previous modification of this Lease
or by any previous prepayment of more than one (1) month's Base Rent, unless
such modification or prepayment shall have been expressly approved in writing by
the Superior Lessor or the Superior Mortgagee through or by reason of which the
Successor Landlord shall have succeeded to the right of Landlord under this
Lease; (iv) be liable for the commencement or completion of any construction or
any contribution toward construction or installation of any improvements upon
the Premises required under this Lease, or any expansion or rehabilitation of
existing improvements upon the Premises, or for restoration of improvements
following any casualty not required to be insured under this Lease or for the
costs of any restoration in excess of the proceeds recovered under any insurance
required to be carried under this Lease; (v) be liable for the right and claim
under this Lease in, to and upon any award or other compensation
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heretofore or hereafter to be made for any taking by eminent domain of any part
of the Premises, and as to the right of disposition thereof, the same shall be
in accordance with the provisions of any Superior Lease or Superior Mortgage;
(vi) be liable for any right and claim under this Lease in, to and upon any
proceeds payable under all policies of fire and rent insurance upon the Premises
and as to the right of disposition thereof, the same shall be in accordance with
the terms of any Superior Lease or Superior Mortgage; (vii) be liable for any
lien, right, power or interest, if any, which may have arisen or intervened in
the period between the recording of any Superior Mortgage and the execution of
this Lease or any lien or judgment which may arise at any time under the terms
of this Lease; or (viii) be liable for the return of any security deposit which
was not actually transferred to the Successor Landlord.
SECTION 8. QUIET ENJOYMENT
So long as Tenant pays all of the Base Rent and Additional Rent and
performs all of Tenant's other obligations hereunder, Tenant shall peaceably and
quietly have, hold and enjoy the Premises without hindrance, ejection or
molestation by Landlord or any person lawfully claiming through or under
Landlord, subject nevertheless, to the provisions of this Lease and to any
Superior Lease and/or Superior Mortgage (as qualified by the nondisturbance
agreement required under Section 7.1). This covenant shall be construed as a
covenant running with the Land, and is not, nor shall it be construed as, a
personal covenant of Landlord, except to the extent of Landlord's interest in
this Lease and only so long as such interest shall continue, and thereafter this
covenant shall be binding only upon subsequent successors in interest of
Landlord's interest in this Lease, to the extent of their respective interests,
as and when they shall acquire the same, and so long as they shall retain such
interest.
SECTION 9. ASSIGNMENT AND SUBLETTING
9.1 GENERALLY. Tenant shall not sell, assign, sublet, encumber or
otherwise transfer by operation of law or otherwise this Lease or any interest
herein, or the Premises or any portion thereof ("TRANSFER"), without the prior
written consent of Landlord which consent shall not be unreasonably withheld or
delayed nor shall Tenant permit any lien to be placed on the Tenant's interest
by operation of law. In determining whether to grant or withhold consent,
Landlord may consider any reasonable factor including, without limitation,
creditworthiness, general reputation, business experience and the willingness
and ability of the proposed transferee to perform Tenant's obligations under
this Lease. Except as provided below, any change in effective control of a
corporation, partnership or other artificial entity which is the Tenant shall be
deemed a Transfer of this Lease. Any Transfer hereunder by Tenant shall not
result in Tenant being released or discharged from any liability under this
Lease. Any sale, assignment, encumbrance, subletting, occupation, or other
Transfer of this Lease which does not comply with the provisions of this Section
9 shall be void. Any listing on Building directories or other signage using a
name other than Tenant's in conjunction with the Premises will not be deemed,
nor will it substitute for, Landlord's consent, as required by this Lease, to
any sublease, assignment or other occupancy of the Premises.
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9.2 Tenant shall, by written notice, advise Landlord of its desire from
and after a stated date (which shall not be less than thirty (30) days nor more
than ninety (90) days after the date of Tenant's notice), to Transfer its
interest in the Premises or any portion thereof for any part of the term hereof;
and such notice by Tenant shall state the name and address of the proposed
transferee, and Tenant shall deliver to Landlord a true and complete copy of the
proposed transfer instrument with said notice.
9.3 Upon any request by Tenant to Transfer all or any part of the
Premises, Landlord shall have the right to either: (a) permit the Transfer on
the conditions referred to in Section 9.4 and any other conditions Landlord may
impose, or (b) deny Tenant's request, in which event this Lease shall continue
in full force and effect and unmodified.
9.4 CONDITIONS OF LANDLORD'S CONSENT. As a condition to Landlord's prior
written consent as provided for in this Section, the transferee(s) shall agree
in writing to comply with and be bound by all of the terms, covenants,
conditions, provisions and agreements of this Lease, and Tenant shall deliver to
Landlord, promptly after execution, an executed copy of each Transfer instrument
and an agreement of said compliance by each transferee. Landlord may require as
a condition of granting consent to a Transfer that Tenant shall pay to Landlord
one half of all Excess Rent from the Transfer. "EXCESS RENT" means the monthly
rent received by Tenant from any sublessee or assignee in excess of the Base
Rent and Additional Rent payable under this Lease, less costs and expenses
directly incurred by Tenant in connection with the execution and performance of
such assignment or sublease including, but not limited to, real estate broker's
commissions and costs of renovation or construction of tenant improvements
required under such assignment or sublease. Tenant is entitled to recover such
costs and expenses before Tenant is obligated to pay any Excess Rent to
Landlord. The Excess Rent in the case of sublease of less than all the Premises
is the rent allocable to the subleased space as a percentage of the square
footage of the entire Premises. Notwithstanding anything herein to the contrary,
Tenant shall not be required to pay Landlord any consideration received by
Tenant for the sale or transfer of Tenant's business, assets, and/or stock. Sums
payable hereunder shall be paid to Landlord as and when paid by the transferee
to Tenant. The sale or exchange of Tenant's stock in a public offering and the
subsequent sale of Tenant's stock on a nationally recognized exchange or in
NASDAQ, a change in ownership of Tenant as a result of a merger, consolidation,
reorganization, joint venture, the exchange of stock between Tenant's parent
company and a subsidiary or between subsidiaries (provided that as a result of
such merger, consolidation, reorganization, joint venture or exchange of stock,
the net worth of Tenant under GAAP is not decreased as a result thereof) or the
sale of all or substantially all of Tenant's stock or the sale of all or
substantially all of Tenant's assets shall not be considered a Transfer under
this Section. Tenant shall not be required to obtain Landlord's consent to any
of the foregoing transactions or combinations thereof.
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SECTION 10. INSURANCE
10.1 WAIVER OF RIGHT OF RECOVERY. Neither party, nor its officers,
directors, employees, agents or invitees, nor, in case of Tenant, its
subtenants, shall be liable to the other party or 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 a
standard policy of insurance for fire, theft and extended coverage, or losses
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.
10.2 PUBLIC LIABILITY INSURANCE. Tenant, at its expense, shall maintain
at all times during the term of this Lease, public liability insurance in
respect of the Premises and the conduct or operation of business therein, with
Landlord and its managing agent, if any, and any Superior Lessor or Superior
Mortgagee whose name and address shall previously have been furnished to Tenant,
as additional insureds, with Two Million and No/100 Dollars ($2,000,000.00)
minimum combined single limit coverage, or its equivalent. All such insurance
shall insure the performance by Tenant of the indemnity agreement as to
liability for injury to, illness of, or death of persons and damage to property
set forth in Section 17 to the extent insurable. Tenant shall deliver to
Landlord and any additional insured such fully paid certificates of insurance,
in form satisfactory to Landlord issued by the insurance company or its
authorized agent, at least ten (10) days before the Commencement Date. Tenant
shall procure and pay for renewals of such insurance from time to time before
the expiration thereof, and Tenant shall deliver to Landlord and any additional
insured such renewal policy or certificate at least thirty (30) days before the
expiration of any existing policy. All such policies shall contain a provision
whereby the same cannot be canceled or modified unless Landlord and any
additional insured is given at least twenty (20) days' prior written notice of
such cancellation or modification; provided, however, Tenant's failure to make
any payment required under such policies shall only require ten (10) days'
written notice.
10.3 ACCEPTABLE INSURANCE COMPANIES. All insurance policies required to
be carried by Tenant hereunder shall be issued by insurance companies authorized
to issue insurance in the State of Oregon rated A+12 or higher by Best's
Insurance Rating Service.
10.4 INCREASE IN COVERAGE. Landlord may from time to time, but not more
frequently than once every three (3) years, require that the amount of public
liability insurance to be maintained by Tenant under Section 10.2 be increased
so that the amount thereof adequately protects the Landlord's interest based on
amounts of coverage required of comparable tenants in comparable buildings.
Landlord will carry and maintain general liability and property insurance as set
forth herein. Landlord agrees to carry during the term hereof commercial general
liability insurance ("Landlord's Liability Insurance") with a combined single
limit of not less than TWO MILLION DOLLARS ($2,000,000) per occurrence, insuring
against any and all liability of Landlord with respect to the ownership,
operation and/or use of the Building. Landlord also agrees to carry during the
term hereof insurance covering the building of which the Premises are a part for
the full replacement value thereof (exclusive of the cost of excavations,
foundations
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and footings) as may be determined from time to time during the lease term
providing protection against any peril generally included in the classification
"all risk" covering fire and extended coverage, vandalism and malicious
mischief, sprinkler leakage and all other perils of direct physical loss or
damage insuring the improvements and betterments located in the Building,
including the Premises and all appurtenances thereto (excluding Tenant's
personal property, trade fixtures and equipment) ("Landlord's Property
Insurance"). Landlord shall maintain Rent Loss coverage as a part of its special
form property damage insurance policy for the Building. Said insurance policies
shall be with an insurance company or companies with general policy holders'
rating of not less than "A-VIII" as rated in the most current available Best's
Key Rating Guide and which are qualified to do business in the state of Oregon.
Landlord shall, upon request, furnish Tenant a certificate of such insurance
policies.
SECTION 11. RULES AND REGULATIONS
Tenant shall faithfully observe and comply with the rules and regulations
printed on or annexed to this Lease as EXHIBIT E and all reasonable
modifications thereof and additions thereto from time to time established by
Landlord by written notice to Tenant ; provided, however, such rules and
regulations shall not materially increase or alter Tenant's obligations under
this Lease. Landlord shall not be responsible for the nonperformance by any
other Tenant or occupant of the Building of any said rules and regulations but
Landlord shall use reasonable efforts to require other occupants of the Building
to comply with the rules and regulations and to remedy any violation of the
rules and regulations applicable to any other Building occupant upon Tenant's
request.
SECTION 12. ALTERATIONS
12.1 REQUIREMENTS. Except for any nonstructural interior alteration which
costs Fifteen Thousand Dollars ($15,000) or less and which does not affect the
Building systems. Tenant shall not make or suffer to be made any alterations,
additions, or improvements in, on, or to the Premises or any part thereof
without the prior written consent of Landlord which consent shall not be
unreasonably withheld. Any such alterations, additions, or improvements in, on,
or to said Premises, except for Tenant's movable furniture and equipment, shall
immediately become Landlord's property and, at the end of the term hereof, shall
remain on the Premises without compensation to Tenant. In the event Landlord
consents to the making of any such alterations, additions, or improvements by
Tenant, the same shall be made by Tenant, at Tenant's sole cost and expense, in
accordance with plans and specifications reasonably approved by Landlord, and
any contractor or person selected by Tenant to make the same must first be
approved in writing by Landlord which approval shall not be unreasonably
withheld. If the alterations, additions or improvements shall be made by
Landlord for Tenant's account, Tenant shall reimburse Landlord for the cost
thereof within twenty (20) days after receipt of a statement, setting forth the
actual cost of such alterations, additions or improvements. In the event
Landlord is required to supervise such alterations, additions or improvements,
Tenant shall pay Landlord an administrative charge of ten percent (10%) of the
actual cost of such alterations, additions or improvements. After the expiration
or sooner termination of the Lease Term and
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upon demand by Landlord, Tenant shall remove any or all alterations, additions,
or improvements made by or for the account of Tenant, designated by Landlord to
be removed unless Landlord had previously consented to allow such to remain, and
Tenant shall repair and restore the Premises to their original condition,
subject to ordinary wear and tear. Such removal, repair and restoration work
shall be done promptly and with all due diligence at Tenant's sole cost and
expense. The provisions of this Section 12 shall not apply to the initial Tenant
Improvements described in EXHIBIT C to this Lease.
12.2 INDEMNIFICATION OF LANDLORD. Tenant, at its expense, and with
diligence and dispatch, shall procure the cancellation or discharge of all
notices of violation arising from or otherwise connected with alterations, or
any other work, labor, services or materials done for or supplied to Tenant, or
any other person claiming through or under Tenant, which shall be issued by any
public authority having or asserting jurisdiction. Tenant shall defend,
indemnify and save harmless Landlord and any Superior Lessor or Superior
Mortgagee from and against any and all mechanic's and other liens and
encumbrances filed in connection with alterations, or any other work, labor,
services or materials done for or supplied to Tenant, or any person claiming
through or under Tenant, including, without limitation, security interests in
any materials, fixtures or articles so installed in and constituting part of the
Premises and against all costs, expenses and liabilities incurred in connection
with any such lien or encumbrance or any action or proceeding brought thereon.
Tenant, at its expense, shall procure the satisfaction or discharge of record of
all such liens and encumbrances within fifteen (15) business days after notice
of the filing thereof. Nothing herein contained shall prevent Tenant from
contesting, in good faith and at its own expense, any notice of violation, or
lien provided Tenant bonds around such lien pursuant to statute.
SECTION 13. LANDLORD'S AND TENANT'S PROPERTY
13.1 LANDLORD'S PROPERTY. All fixtures, carpeting, equipment,
improvements and appurtenances attached to or built into the Premises at the
commencement of or during the term of this Lease, whether or not by or at the
expense of Tenant, shall be and remain a part of the Premises, shall be deemed
the property of Landlord and shall not be removed by Tenant, except as provided
in Section 13.2; provided, that at Landlord's written request, Tenant shall, at
its sole expense and upon termination of the Lease, remove those items specified
by Landlord, including any or all fixtures, equipment, improvements,
appurtenances and other personal property, which are deemed herein the property
of Landlord, but not including the initial Tenant Improvements provided by
Landlord pursuant to EXHIBIT C of this Lease or as set forth in Section 12.1.
Tenant's covenant to remove property specified by Landlord shall survive the
termination of this Lease.
13.2 TENANT'S PROPERTY. All unattached business and trade fixtures,
machinery and equipment, communications equipment and office equipment which are
installed in the Premises by or for the account of Tenant without expense to
Landlord and which can be removed without structural damage to the Building
including, without limitation, the items listed on attached EXHIBIT I and all
furniture, furnishings (excluding window coverings) and other articles of
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movable personal property owned by Tenant and located in the Premises (herein
collectively called "TENANT'S PROPERTY") shall be and remain the property of
Tenant and may be removed by Tenant at any time during the term of this Lease;
provided, that if any of Tenant's Property is removed, Tenant shall repair or
pay the cost of repairing any damage to the Premises or to the Building
resulting from the installation and/or removal thereof. Any equipment or other
property for which Landlord shall have granted any allowance or credit to Tenant
shall be deemed not to have been installed by or for the account of Tenant
without expense to Landlord, shall not be considered Tenant's Property, and
shall be deemed the property of Landlord.
13.3 ABANDONMENT. Any items of Tenant's Property which shall remain in
the Premises after the expiration date of this Lease, or after a period of
fifteen (15) business days following an earlier termination date and after seven
(7) days' written notice from Landlord to Tenant to remove Tenant's Property, at
the option of Landlord, may be deemed to have been abandoned, and in such case
such items may be retained by Landlord, without accountability, in such manner
as Landlord shall determine at Tenant's expense.
SECTION 14. SERVICES AND UTILITIES
14.1. BUILDING MAINTENANCE. Except for Tenant's maintenance
responsibilities set forth above in Section 3, Landlord shall maintain the
Building, including public and common areas of the Building, such as the
lobbies, stairs, elevators, corridors and rest rooms, the windows in the
Building, the mechanical, plumbing and electrical equipment serving the
Building, and the structure itself including the foundation, exterior walls and
roof, in first class condition as that term is understood to mean in the general
geographic area of the Building except for damage occasioned by the act of the
Tenant, which damage shall be repaired by Landlord at Tenant's expense, to the
extent not covered by Landlord's insurance, and such costs shall be reimbursable
as Operating Expenses. If Landlord fails to keep and preserve the Premises as
set forth in Section 14.1, and after which Tenant has given Landlord notice of
such failure (pursuant to Section 21.5 (Landlord Default) unless such failure
results in an emergency, in which case, no prior notice is required), Tenant
may, at its option, put or cause the same to be put in the condition and state
of repair agreed upon, and in such case, Landlord shall reimburse Tenant the
amounts incurred by Tenant in performing such repairs within thirty (30) days
after delivering to Landlord written statements and copies of invoices from
Tenant's contractor(s) and/or vendor(s).
14.2. UTILITIES. Provided the Tenant shall not be in default hereunder,
and subject to the provisions elsewhere herein contained and to the rules and
regulations of the Building, Landlord agrees to furnish to the Premises from
7:00 A.M. to 6:00 P.M. on weekdays, exclusive of legal holidays, water and
electricity suitable for the intended use of the Premises, heat and
air-conditioning for the comfortable use and occupation of the Premises,
janitorial services during the times and in the manner that such services are
customarily furnished in comparable office buildings in the immediate market
area, and elevator service which shall mean service by unattended automatic
elevators. Landlord shall provide additional or after-hours heating or
air-conditioning at Tenant's request, and Tenant shall pay to Landlord a
reasonable charge for such services as determined by Landlord. After hours HVAC
charges are estimated at $18.00
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per hour per floor. Tenant agrees to use reasonable efforts to keep and cause to
be kept closed all window coverings when necessary because of the sun's
position, and Tenant also agrees at all times to reasonably cooperate fully with
Landlord and to abide by all the regulations and requirements which Landlord may
reasonably prescribe for the proper functioning and protection of the heating,
ventilating, and air-conditioning system. Wherever heat-generating machines,
excess lighting or equipment are used in the Premises which materially affect
the temperature otherwise maintained by the air-conditioning system, Landlord
reserves the right to install supplementary air-conditioning units in the
Premises to the extent necessary to offset the effect of such machines, lighting
or equipment, and the cost thereof, including the cost of installation and the
cost of operation and maintenance thereof, shall be paid by Tenant to Landlord
upon thirty (30) days' notice of demand by Landlord. Any sums payable under
Section 14 shall be considered Additional Rent and may be added to any
installment of Base Rent thereafter becoming due, and Landlord shall have the
same remedies for a default in payment of such sum as for a default in the
payment of Base Rent.
14.3. EXCESS USAGE. If Tenant uses excessive amounts of non-metered
utilities or services of any kind because of operation outside of normal
Building hours, high demands from office machinery and equipment, nonstandard
lighting, or any other cause, Landlord may impose a reasonable charge for
supplying such extra utilities services, which charge shall be payable monthly
by Tenant in conjunction with Rent payments. Landlord may install in the
Premises a special meter to measure the amount of water, electric current or
other resource consumed for any such other use. In case of dispute over any
extra charge under this paragraph, Landlord shall designate a qualified
independent engineer whose decision shall be conclusive on both parties. The
party not prevailing in such dispute shall pay the cost of such engineer's
determination.
14.4. DISCLAIMER. Landlord shall not be in default hereunder or be liable
for any damages directly or indirectly resulting from, or by reason of (i) the
making of necessary repairs or improvements to the Premises or the Building so
long as Landlord takes reasonable steps to minimize interference with Tenant's
business from such repairs and improvements, (ii) 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 Landlord, or
(iii) 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 by government agencies or
utilities suppliers. Furthermore, Landlord 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. In the event that Tenant cannot conduct its business in
the Premises for one or more full business days due to any interruption of
service to the Premises, Tenant shall be entitled to an abatement of Rent for
the period of such interruption to the extent that Landlord has Rent loss
insurance proceeds available, which will fully compensate Landlord for the loss
of Rent.
14.5. USE OF COMMON AREAS AND FACILITIES All common facilities and areas
furnished by Landlord in or near the Building, including parking areas, lighting
facilities, pedestrian
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sidewalks and ramps, landscaped areas, exterior stairways, rest rooms and other
areas and improvements provided by Landlord for the general use, in common, of
tenants, their officers, agents, employees and customers shall at all times be
subject to the exclusive control and management of Landlord. Without limiting
the scope of such discretion, Landlord shall have the full right and authority
to employ all personnel and to establish, modify and enforce reasonable rules
and regulations necessary for the proper operation and maintenance of common
areas and facilities. Landlord shall have the right to close all or any portion
of the common areas or facilities to such extent as, in the opinion of
Landlord's legal counsel, may be legally sufficient to prevent a dedication
thereof or the accrual of any rights to any person (other than Tenant) or the
public therein; and to do and perform such other acts in and to said areas and
improvements as the Landlord shall reasonably determine to be advisable. All
common areas and facilities not within the Premises, which Tenant may be
permitted to use and occupy, are to be used and occupied under a revocable
license, and if the amount of such areas be diminished, Landlord shall not be
subject to any liability nor shall Tenant be entitled to any compensation or
diminution or abatement of Rent, nor shall such diminution of such areas be
deemed constructive or actual eviction.
14.6. SIGNAGE. Landlord shall provide Tenant, at no additional charge,
Building standard signage.
SECTION 15. ACCESS AND NAME
Landlord reserves and shall at all times have the right to re-enter the
Premises upon 24 hours' prior notice to Tenant (except in an emergency) to
inspect the same, to supply janitor service and any other service to be provided
by Landlord to Tenant hereunder, to show said Premises to prospective
purchasers, mortgagees or during the last nine (9) months of the Lease term,
tenants, to post notices of nonresponsibility, and to alter, improve or repair
the Premises and any portion of the Building of which the Premises are a part,
without abatement of Rent; provided, however, Landlord shall reasonably minimize
interference with Tenant's normal business activities and in the event any
repairs or construction by Landlord renders all or part of the Premises
untenantable for more than thirty (30) days, Base Rent and Additional Rent shall
thereafter be abated in the same proportion that the Premises are untenantable
until such time as Tenant is able to reoccupy such portions of the Premises for
business or Landlord completes such repairs or construction, whichever is
earlier. Landlord may for such purpose 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 Tenant shall not be interfered with unreasonably. Except as set
forth herein, Tenant hereby waives any claim for damages for any injury or
inconvenience to or interference with Tenant's business, any loss of occupancy
or quiet enjoyment of the Premises and any other loss occasioned by Landlord's
conduct pursuant to this Section. For each of the purposes stated in this
Section, Landlord shall at all times have and retain a key with which to unlock
all of the doors in, upon and about the Premises, excluding Tenant's vaults and
safes or special security areas (designated in advance). Landlord shall have the
right to use any and all lawful means which Landlord may
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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 Landlord 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
Tenant from all or part of the Premises. Landlord shall also have the right at
any time, without the same constituting an actual or constructive eviction and
without incurring any liability to Tenant, to change the arrangement and/or
location of common entrances or passageways, doors and doorways, corridors,
elevators, stairs, toilets or other public parts of the Building and to change
the name, number or designation by which the Building is commonly known ;
provided, however, Landlord shall provide Tenant with at least sixty (60) days
prior written notice of any such change in the name, number or designation of
the Building. Landlord shall notify Tenant within twenty-four (24) hours of an
emergency entry into the Premises by Landlord.
SECTION 16. NOTICE OF OCCURRENCES
Tenant shall give prompt notice to Landlord of: (i) any occurrence in or
about the Premises for which Landlord might be liable; (ii) 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 Landlord 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.
SECTION 17. NONLIABILITY AND INDEMNIFICATION
17.1. WAIVER. Landlord shall not be liable for any loss or damage to
person or property sustained by Tenant, or other persons, which may be caused by
theft, or by any act or neglect of any tenant of the Building or by any other
person in or about the Building. Neither Landlord nor any partner, director,
officer, agent, servant or employee of Landlord shall be liable to Tenant for
any loss, injury or damage to Tenant or to any other person, or to its or their
property, irrespective of the cause of such injury, damage or loss, except to
the extent caused by or resulting from the negligence or willful misconduct of
Landlord, its agents, servants or employees in the operation or maintenance of
the Premises or the Building. Further, neither Landlord nor any partner,
director, officer, agent, servant or employee of Landlord shall be liable: (i)
for any such damage caused by other tenants or persons in, upon or about the
Building, or caused by operations in construction of any private, public or
quasi-public work; or (ii) even if negligent, for consequential damages,
including lost profits, of Tenant or any person claiming through or under
Tenant. For purposes of this limitation, consequential damages does not include
direct actual damages.
17.2. INDEMNIFICATION. Tenant shall indemnify and hold harmless Landlord
and all Superior Lessors and/or Superior Mortgagees and its and their respective
partners, directors, officers, agents and employees from and against any and all
third party claims for bodily injury
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and/or property damage arising from or in connection with any accident, injury
or damage whatever occurring in, at or upon the Premises; together with all
costs, expenses and liabilities incurred or in connection with each such claim
or action or proceeding brought thereon, including, without limitation, all
attorneys' fees and expenses at trial and upon appeal. Landlord shall indemnify
and hold harmless Tenant and its directors, officers, agents and employees from
and against any and all third party claims for bodily injury and/or property
damage arising from or in connection with any accident, injury or damage
whatever occurring in, at or upon the common areas of the Land and the Building;
together with all costs, expenses and liabilities incurred or in connection with
each such claim or action or proceeding brought thereon, including, without
limitation, all attorneys' fees and expenses at trial and upon appeal.
17.3. DUTY TO DEFEND. In case any action or proceeding is brought against
Landlord and/or any Superior Lessor and/or Superior Mortgagee and/or its or
their partners, directors, officers, agents and/or employees and such claim is a
claim from which Tenant is obligated to indemnify Landlord pursuant to Section
17.2, Tenant, upon notice from Landlord or such Superior Lessor or Superior
Mortgagee, shall resist and defend such action or proceeding (by counsel
reasonably satisfactory to Landlord). The obligation of Tenant under this
Section 17 shall survive termination of this Lease. In case any action or
proceeding is brought against Tenant and/or its directors, officers, agents
and/or employees and such claim is a claim from which Landlord is obligated to
indemnify Tenant pursuant to Section 17.2, Landlord, upon notice from Tenant,
shall resist and defend such action or proceeding (by counsel reasonably
satisfactory to Tenant). The obligation of Landlord under this Section 17 shall
survive termination of this Lease.
SECTION 18. DAMAGE OR DESTRUCTION
18.1. CASUALTY. If the Premises or the Building are damaged by fire or
other casualty, Landlord shall forthwith repair the same unless this Lease is
terminated as permitted herein. Within thirty (30) days from the date of such
damage, Landlord shall notify Tenant if the Building is damaged in excess of
thirty-five percent (35%) of the Building's precasualty value, as reasonably
determined by Landlord (damage in excess of such amount being referred to as
"MAJOR DAMAGE" and damage equal to or less than such amount being referred to as
"MINOR DAMAGE"). If Major Damage occurs, Landlord may elect to terminate the
Lease so long as Landlord terminates the tenancies of all other similarly
affected tenants in the Building. If Minor Damage occurs, then Landlord shall
repair such damage and rebuild that portion of the Building or the Premises
damaged within a reasonable time not to exceed one hundred eighty (180) days
after such casualty. In the event of Major Damage, if Landlord gives its written
notice to Tenant electing to rebuild or in the event of Minor Damage, this Lease
shall remain in full force and effect except the Rent shall be reasonably abated
during the period of repair based on that portion of the Premises not reasonably
usable by Tenant. If in the event of Major Damage, Landlord elects by written
notice to Tenant not to rebuild, then this Lease shall automatically terminate
as of the effective date of such notice, the Rent shall be reduced by a
proportionate amount based upon the extent to which said damage interfered with
the business carried on by Tenant in the Premises, and the Tenant shall pay such
reduced Rent up to the date of termination. Landlord
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agrees to refund to Tenant any Rent previously paid for any period of time
subsequent to such date of termination. Landlord shall not be required to repair
any damage by fire or other cause to the property of Tenant or any alterations,
additions, fixtures or improvements installed on the Premises by or at the
expense of Tenant. In the event that such damage or destruction is not repaired
within one hundred eighty (180) days from the date of such event, then Tenant,
at its option, by written notice to Landlord, may terminate this Lease which
shall be effective upon Landlord's receipt of such notice.
18.2. CONDEMNATION. If more than thirty-five percent (35%) of the Land
and/or Building shall be taken or appropriated under the power of eminent domain
or conveyed in lieu thereof, Landlord shall have the right to terminate this
Lease so long as Landlord terminates the tenancies of all other similarly
affected tenants in the Building. If such taking renders the Premises unsuitable
for the conduct of Tenant's business then Tenant shall have the right to
terminate this Lease. If this Lease is terminated, Landlord shall receive (and
Tenant shall assign to Landlord upon demand from Landlord) any and all income,
rent, award or any interest thereon which may be paid or owed in connection with
the exercise of such power of eminent domain or conveyance in lieu thereof, and
Tenant shall have no claim against the agency exercising such power or receiving
such conveyance, for any part of such sum paid by virtue of such proceedings,
whether or not attributable to the value of the unexpired term of this Lease;
provided, however, Tenant shall have the right to claim from the condemning
authority all compensation that may be recoverable by Tenant for relocation
benefits or loss of Tenant's Property or for damage to Tenant's business or loss
of business; provided further that Tenant may claim such damages only if they
are awarded separately in the eminent domain proceeding and not as part of
Landlord's damages and do not reduce Landlord's award. If a part of the Land
and/or Building shall be so taken or appropriated or conveyed and Landlord
hereto shall elect not to terminate this Lease, Landlord shall nonetheless
receive (and Tenant shall assign to Landlord upon demand from Landlord) any and
all income, rent, award or any interest thereon paid or owed in connection with
such taking, appropriation or conveyance; and if the Premises have been damaged
as a consequence of such partial taking or appropriation or conveyance, Landlord
shall restore the Premises and this Lease shall remain in full force and effect
except that Tenant shall be entitled to an appropriate reduction in Rent while
such restoration is being made by Landlord. Such proportionate reduction shall
be based upon the extent to which the restoration being made by Landlord shall
interfere with the business carried on by Tenant in the demised Premises.
Landlord will not be required to repair or restore any injury or damage to the
property of Tenant or make any repairs or restoration to any alterations,
additions, fixtures or improvements installed in the Premises by or at the
expense of Tenant.
SECTION 19. SURRENDER AND HOLDING OVER
19.1. GENERAL. On the last day of the term of this Lease, or upon re-entry
by Landlord upon the Premises, Tenant shall quit and surrender the Premises to
Landlord "broom-clean" and in good order, condition and repair, except for
ordinary wear and tear in accordance with the provisions of Section 13 of this
Lease.
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19.2. SURRENDER. No agreement relating to the surrender of the Premises by
Tenant shall be valid unless in writing and signed by Landlord.
19.3. HOLDING OVER WITH CONSENT. Any holding over after the expiration of
the term of this Lease with the written consent of Landlord shall be a tenancy
from month to month. The terms, covenants and conditions of such tenancy shall
be the same as provided herein, and the monthly Rent shall be 125% of the amount
of the daily Rent for the last period prior to the date of such expiration or
termination. Acceptance by Landlord of Rent after such expiration shall not
result in any other tenancy or any renewal of the term of this Lease, and the
provisions of this Section are in addition to and do not affect Landlord's right
of re-entry or other rights provided under this Lease or by applicable law.
19.4. HOLDING OVER WITHOUT CONSENT. If Tenant shall retain possession of
the Premises or any part thereof without Landlord's consent following the
expiration or sooner termination of this Lease for any reason, then Tenant shall
pay to Landlord for each day of such retention 150% of the amount of the daily
Rent for the last period prior to the date of such expiration or termination,
subject to adjustment as provided in Section 4. Tenant shall also indemnify and
hold Landlord harmless from any loss or liability resulting from delay by Tenant
in surrendering the Premises, including, without limitation, any claims made by
any succeeding tenant founded on such delay. Alternatively, if Landlord gives
notice to Tenant of Landlord's election thereof, such holding over shall
constitute renewal of this Lease for a period from month to month. Acceptance of
Rent by Landlord following expiration or termination shall not constitute a
renewal of this Lease, and nothing contained in this Section shall waive
Landlord's right of re-entry or any other right. Unless Landlord exercises the
option hereby given to it, Tenant shall be only a Tenant at sufferance, whether
or not Landlord accepts any Rent from Tenant while Tenant is holding over
without Landlord's written consent.
SECTION 20. EVENTS OF DEFAULT
20.1. EVENTS OF DEFAULT. The occurrence of any one or more of the
following events of default shall constitute a breach of this Lease by Tenant:
20.1.1. If Tenant shall default in the payment of any Base Rent or
Additional Rent, and such default shall continue for ten (10) days after
Landlord shall have given Tenant a notice specifying the same; or
20.1.2. If Tenant shall, whether by action or inaction, be in
default of any of its obligations under this Lease (other than a default in the
payment of Base Rent or Additional Rent) and such default shall continue and not
be remedied within thirty (30) days after Landlord shall have given to Tenant a
notice specifying the same, or, in the case of a default which cannot with due
diligence be cured within a period of thirty (30) days and the continuance of
which for the period required for cure will not subject Landlord or any Superior
Lessor to prosecution for a crime or termination of any Superior Lease or
foreclosure of any Superior Mortgage, if Tenant shall not, (i) within said
thirty (30) day period advise Landlord of Tenant's intention to take all
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steps necessary to remedy such default; (ii) duly commence within said thirty
(30) day period, and thereafter diligently prosecute to completion all steps
necessary to remedy the default; and (iii) complete such remedy within a
reasonable time after the date of said notice of Landlord; or
20.1.3. If any event shall occur or any contingency shall arise
whereby this Lease or the estate hereby granted or the unexpired balance of the
term hereof would, by operation of law or otherwise, devolve upon or pass to any
person, firm or corporation other than Tenant, except as expressly permitted by
Section 9; or
20.1.4. If Tenant shall vacate or abandon the Premises except as set
forth in Section 2.1; or
20.1.5. If Tenant or any guarantor of Tenant's obligations shall
make a general assignment for the benefit of creditors, or shall be unable to
pay its debts as they become due, or shall file a petition in bankruptcy, or
shall be adjudicated as bankrupt or insolvent, or shall file a petition seeking
any reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any present or future statute, law or
regulation, or shall file an answer admitting or shall fail timely to contest
the material allegations of a petition filed against it in any such proceeding,
or shall seek or consent to or acquiesce in the appointment of any trustee,
receiver or liquidator of Tenant or any material part of its properties; or
20.1.6. If within ninety (90) days after the commencement of any
proceeding against Tenant seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any present or
future statute, law or regulation, such proceeding shall not have been dismissed
or if, within ninety (90) days after the appointment without the consent or
acquiescence of Tenant of any trustee, receiver or liquidator of Tenant or of
any material part of its properties, such appointment shall not have been
vacated; or
20.1.7. If this Lease or any estate of Tenant hereunder shall be
levied upon under any attachment or execution and such attachment or execution
is not vacated within ten (10) days.
20.2. LIMITATION OF TENANT RIGHT TO NOTICE. During any twelve (12) month
period, Tenant shall be entitled to only two (2) notices pursuant to Section
20.1.1 and one (1) notice each for the same type of default pursuant to Section
20.1.2.
SECTION 21. REMEDIES UPON DEFAULT
21.1. REMEDIES. Upon the occurrence of an event of default constituting a
breach of this Lease under Section 20, Landlord may exercise any one or more of
the remedies set forth in this Section 21 or in Section 24, or any other remedy
available under applicable law or contained in this Lease.
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21.1.1. Landlord or Landlord's agents and employees may immediately
or at any time thereafter re-enter the Premises, or any part thereof, either by
summary eviction proceedings or by any suitable action or proceeding at law, or
by lawful force or otherwise, and so long as permitted by law, Landlord may take
such action without being liable to indictment, prosecution or damages therefor,
and may repossess the same, and may remove any person therefrom, to the end that
Landlord may have, hold and enjoy the Premises.
21.1.2. Landlord at its option may relet the whole or any part of
the Premises from time to time, either in the name of the Landlord or otherwise,
to such tenants, for such terms ending before, on or after the expiration date
of the Lease Term, at such rentals and upon such other conditions (including
concessions, tenant improvements, and free rent periods) as Landlord may
reasonably determine to be reasonably appropriate. Landlord at its option may
make such physical changes to the Premises as Landlord considers advisable or
necessary in connection with any such reletting or proposed reletting, without
relieving Tenant of any liability under this Lease or otherwise affecting
Tenant's liability. If there is other unleased space in the Building, Landlord
may lease such other space without prejudice to its remedies against Tenant.
21.1.3. Whether or not Landlord retakes possession or relets the
Premises, Landlord shall have the right to recover unpaid rent and all damages
excluding consequential damages caused by the default, including attorneys'
fees. Damages shall include, without limitation: (i) all rentals lost; (ii) all
reasonable legal expenses and other related costs incurred by Landlord following
Tenant's default; (iii) all reasonable costs incurred by Landlord in restoring
the Premises to the good order and condition, or in remodeling, renovating or
otherwise preparing the Premises for reletting; and (iv) all reasonable costs
incurred by Landlord in reletting the Premises, including, without limitation,
any brokerage commissions and the reasonable value of Landlord's time.
21.1.4. To the extent permitted under Oregon law, Landlord may sue
periodically for damages as they accrue without barring a later action for
further damages. Landlord may in one action recover accrued damages plus damages
attributable to the remaining Lease Term equal to the difference between the
rent reserved in this Lease (including an estimated amount of Additional Rent as
reasonably determined by Landlord) for the balance of the Lease Term after the
time of award, and the fair rental value of the Premises for the same period,
discounted to the time of award at the rate of nine percent (9%) per annum. If
Landlord has relet the Premises for the period which otherwise would have
constituted the unexpired portion of the Lease Term or any part, the amount of
rent reserved upon such reletting shall be deemed, prima facie, to be the fair
and reasonable rental value for the part or the whole of the Premises so relet
during the term of the reletting.
21.2. CUMULATIVE REMEDIES. The remedies provided for in this Lease are
cumulative and are not intended to be exclusive of any other remedies to which
Landlord may lawfully be entitled at any time, and Landlord may invoke any
remedy allowed at law or in equity, including an action for specific
performance, as if specific remedies were not provided for herein. In the event
of a breach or threatened breach by Tenant of any of its obligations under this
Lease,
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Landlord shall also have the right to obtain an injunction and any other
appropriate equitable relief. Notwithstanding anything herein to the contrary,
Landlord agrees to use commercially reasonable efforts to mitigate its damages
resulting from a default by Tenant.
21.3. TERMINATION. Even though Tenant has breached this Lease, the Lease
shall continue in effect for so long as Landlord does not agree in writing to
terminate Tenant's continuing contractual liability, and Landlord may enforce
all its rights and remedies under this Lease, including the right to recover the
rent as it becomes due under this Lease. Acts of maintenance or preservation or
efforts to relet the Premises or the appointment of a receiver upon initiative
of Landlord to protect Landlord's interest under this Lease shall not constitute
a termination of Tenant's right to possession except to the extent required
otherwise under Oregon law or unless written notice of termination is given by
Landlord to Tenant.
21.4. INTEREST ON DAMAGES. In addition to any other remedies Landlord may
have under this Lease, and without reducing or adversely affecting any of
Landlord's rights and remedies under this Section 21, if any Base Rent,
Additional Rent or damages payable hereunder by Tenant to Landlord are not paid
within five (5) days after demand therefor, the same shall bear interest at the
annual rate of fifteen percent (15%) or the maximum rate permitted by law,
whichever is less, calculated monthly from the due date thereof until paid, and
the amount of such interest shall be included as Additional Rent hereunder.
21.5. DEFAULT BY LANDLORD. Unless otherwise provided in this Lease,
Landlord shall not be in default unless Landlord fails to perform obligations
required of Landlord within thirty (30) days after written notice by Tenant to
Landlord and to the holder of any mortgage or deed of trust covering the
Premises and/or Building and/or Land whose name and address shall have
theretofore been furnished to Tenant in writing in accordance with this Lease.
Said notice shall specify wherein Landlord has failed to perform such
obligation; provided, however, that if the nature of Landlord's obligation is
such that more than thirty (30) days are required for performance, then Landlord
shall not be in default if Landlord commences performance within such thirty
(30) day period and thereafter diligently prosecutes the same to completion.
Tenant further agrees not to invoke any of its remedies under this Lease until
any such mortgagees and/or deed of trust holders have been provided an
opportunity to cure as set forth in this Lease. If default cannot be cured
within the time periods provided for within this paragraph, Tenant shall be
entitled to pursue any and all remedies available to Tenant under this Lease, at
law, or in equity.
SECTION 22. SERVICES IN THE EVENT OF DEFAULT
In addition to any rights and remedies which Landlord may have under this
Lease, if there shall be a default hereunder by Tenant which shall not have been
remedied within the applicable grace period, Landlord shall not be obligated to
furnish Tenant or the Premises any heat, ventilation or air-conditioning
services outside of business hours on business days, or any extra or additional
cleaning services; and the discontinuance of any one or more such services
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shall be without liability by Landlord to Tenant and shall not reduce, diminish
or otherwise affect any of Tenant's covenants and obligations under this Lease.
SECTION 23. NO WAIVERS OF PERFORMANCE
The failure of either party to insist in any one or more instances upon
the strict performance of any one or more of the obligations of this Lease, or
to exercise any election herein contained, shall not be construed as a waiver or
relinquishment for the future of the performance of such one or more obligations
or any other obligations of this Lease or of the right to exercise such
election, but the same shall continue and remain in full force and effect with
respect to any subsequent breach, act or omission. The receipt by Landlord of
Rent with knowledge of a breach by Tenant of any obligation of this Lease shall
not be deemed a waiver of such breach.
SECTION 24. CURING TENANT'S DEFAULTS
All covenants and agreements to be performed by the Tenant under any of
the terms of this Lease shall be performed by Tenant at Tenant's sole cost and
expense and without any abatement of Rent except as expressly provided otherwise
herein. If the Tenant shall fail to pay any sum of money, other than Rent,
required to be paid by it hereunder or shall fail to perform any other act on
its part to be performed hereunder, and such failure shall continue for the
periods referred to in Section 20 hereof after notice thereof by the Landlord,
the Landlord may make any such payment or perform any such act on the Tenant's
part to be made or performed as in this Lease provided but shall not be
obligated so to do. Any such payment or performance shall not be a waiver or
release of Tenant's obligations. All sums so paid by the Landlord and all
necessary incidental costs together with interest thereon at the rate specified
in Section 21.4 from the date of such payment by the Landlord shall be payable
as Additional Rent to the Landlord on demand, and the Tenant covenants to pay
any such sums, and the Landlord shall have, in addition to any other right or
remedy of the Landlord, the same rights and remedies in the event of the
nonpayment thereof by the Tenant as in the case of default by the Tenant in the
payment of the Rent.
SECTION 25. BROKER
Tenant covenants, warrants and represents that no broker except as
provided in the Basic Lease Information (the "BROKER") was instrumental in
bringing about or consummating this Lease and that Tenant had no conversations
or negotiations with any broker except the Broker concerning the leasing of the
Premises. Each party agrees to indemnify and hold harmless the other party
against and from any claims for any brokerage commissions and all costs,
expenses and liabilities in connection therewith, including, without limitation,
attorneys' fees and expenses, arising out of any conversations or negotiations
had by the indemnifying party with any broker other than the Broker. Landlord
shall pay any brokerage commissions due the Broker as per a separate agreement
between Landlord and the Broker.
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SECTION 26. NOTICES
Any notice, statement, demand, consent, approval or other communication
required or permitted to be given, rendered or made by either party to the
other, pursuant to this Lease or pursuant to any applicable law or requirement
of public authority, shall be in writing (whether or not so stated elsewhere in
this Lease). Notices shall be deemed to have been properly given, rendered or
made: if delivered in person to the Landlord or Tenant and receipt is
acknowledged; or, if sent postage prepaid by registered or certified mail,
return receipt requested, effective two (2) business days after posted in a
United States post office station or letter box in the continental United
States, [or, if sent by commercial overnight courier, prepaid for next day
delivery, effective one (1) business day after delivered to the courier in the
continental United States] addressed to the other party at the address
designated by the party (except that after the Commencement Date, Tenant's
address, unless Tenant shall give notice to the contrary, shall be the
Building). Either party may, by notice as aforesaid, designate a different
address or addresses for notices, statements, demands, consents, approvals or
other communications intended for it. Notice to Tenant shall be addressed to
Tenant's General Counsel with a copy to: Jonathan A. Bennett, Dunn Carney Allen
Higgins & Tongue LLP , 851 SW Sixth Avenue, Suite 1500, Portland, Oregon 97204.
SECTION 27. ESTOPPEL CERTIFICATES
Each party agrees, at any time and from time to time, as requested by the
other party with not less than ten (10) business days' prior notice, to execute
and deliver to the other a statement certifying that this Lease is unmodified
and in full force and effect (or if there have been modifications, that the same
is in full force and effect as modified and stating the modifications),
certifying the dates to which the Base Rent and Additional Rent have been paid,
stating whether or not, to the best knowledge of the signer, the other party is
in default in performance of any of its obligations under this Lease, and, if
so, specifying each such default of which the signer shall have knowledge, and
stating whether or not, to the best knowledge of the signer, any event has
occurred which with the giving of notice or passage of time, or both, would
constitute such a default, and, if so, specifying each such event, it being
intended that any such statement delivered pursuant hereto shall be deemed a
representation and warranty to be relied upon by the party requesting the
certificate and by others with whom such party may be dealing, regardless of
independent investigation. Tenant also shall include in any such statement such
other information concerning this Lease as Landlord may reasonably request which
is customarily included in such statements. Without limiting the foregoing,
Tenant shall upon request execute a Statement of Tenant in the form attached as
EXHIBIT G.
SECTION 28. MEMORANDUM OF LEASE
Tenant shall not record this Lease. Upon ten (10) days' prior written
notice from Landlord, Tenant shall execute, acknowledge and deliver to Landlord
a memorandum of lease in respect of this Lease sufficient for recording. Such
memorandum shall not be deemed to change or otherwise affect any of the
obligations or provisions of this Lease.
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SECTION 29. RELOCATION OF PREMISES
Intentionally Deleted.
SECTION 30. ADJUSTMENT OF COMMENCEMENT AND EXPIRATION DATES
30.1. COMMENCEMENT DATE. The term of this Lease shall commence for each
floor on a date (herein the "COMMENCEMENT DATE") which shall be the date
specified in the Basic Lease Information unless Tenant actually occupies the
Premises for the operation of business earlier than the date specified in the
Basic Lease Information, in which event such occupancy date shall be the
Commencement Date. If Landlord is unable for any reason other than Tenant Caused
Delay, as hereinafter defined, to deliver possession of a floor with all
Landlord's Work as described on attached EXHIBIT C annexed hereto and the Tenant
Improvement Work to be performed by Landlord's Contractor ("LANDLORD'S WORK")
substantially complete by the Commencement Date specified in the Basic Lease
Information, the Commencement Date for such floor shall be the date Landlord
delivers possession of such floor with Landlord's Work and the Tenant
Improvement Work to be performed by Landlord's contractor substantially
complete.
30.2. TENANT OBLIGATIONS. If Landlord is unable to deliver possession of a
floor with Landlord's Work and the Tenant Improvement Work to be performed by
Landlord's contractor substantially complete by the Commencement Date for such
floor (as specified in the Basic Lease Information) for any reason other than
Tenant Caused Delay, then the Delivery Date and the Commencement Date for such
floor shall be deferred and the Base Rent and Additional Rent payable hereunder
for such floor shall be abated for the time period of such delay. If Landlord is
unable to deliver possession of a floor with the Landlord's Work and the Tenant
Improvement Work to be performed by Landlord's contractor substantially
completed on the Commencement Date for such floor due to (i) the failure of
Tenant to fulfill any obligation pursuant to the terms of this Lease or any
exhibit hereto (including without limitation Tenant's failure to furnish
information so that working drawings can be completed by the dates specified in
paragraph 2 of EXHIBIT C) or (ii) Tenant's request for any materials,
installations or finishes with unusually long lead times or (iii) any changes in
the Tenant Improvements requested by Tenant or (iv) Tenant's failure to approve
the total cost for the Tenant Improvement Work within the period specified in
paragraph 2 of EXHIBIT C ("TENANT CAUSED DELAY"), then the Commencement Date for
such floor shall not be deferred and Tenant shall not be entitled to any
abatement of rent due to such delay. In the event Landlord fails to deliver a
floor or any portion thereof with all Landlord's Work and the Tenant Improvement
Work to be performed by Landlord's Contractor substantially complete within six
(6) months after the applicable Commencement Date for such floor, Tenant may
elect to terminate this Lease with respect to such floor but the Lease shall
remain in full force and effect as to the balance of the Premises.
30.3. EXPIRATION DATE. In the event the Commencement Date for any floor is
adjusted to a date other than as specified in the Basic Lease Information, then
there shall be no comparable adjustment to the Expiration Date.
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30.4. EARLY OCCUPANCY. If Landlord has given Tenant permission to enter
into the possession of the Premises prior to the Commencement Date for the
conduct of Tenant's business, such possession or occupancy shall be deemed to be
upon all the terms, covenants, conditions and provisions of this Lease,
including, without limitation, the payment of Base Rent and the Additional Rent.
SECTION 31. MISCELLANEOUS
31.1. MERGER. All understandings and agreements heretofore had between the
parties are merged in this Lease and any other written agreement(s) made
concurrently herewith, which alone fully and completely express the agreement of
the parties and which are entered into after full investigation, neither party
relying upon any statement or representation not embodied in this Lease or any
other written agreement(s) made concurrently herewith.
31.2. MODIFICATIONS. No agreement shall be effective to change, modify,
waive, release, discharge, terminate or effect an abandonment of this Lease, in
whole or in part, unless such agreement is in writing, refers expressly to this
Lease and is signed by the party against whom enforcement is sought.
31.3. SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided in
this Lease, the obligations of this Lease shall bind and benefit the successors
and assigns of the parties hereto with the same effect as if mentioned in each
instance where a party is named or referred to; provided, however, that: (i) no
violation of the provisions of Section 9 shall operate to vest any rights in any
successor or assignee of Tenant; and (ii) the provisions of this Section shall
not be construed as modifying the provisions of Sections 9 or 20.
31.4. NONRECOURSE LEASE. Tenant shall look only to Landlord's estate and
property in the Land and the Building for the satisfaction of Tenant's remedies
for the collection of a judgment (or other judicial process) requiring the
payment of money by Landlord in the event of any default by Landlord hereunder,
and no other property or assets of Landlord or its partners or principals,
disclosed or undisclosed, shall be subject to levy, execution or other
enforcement procedure for the satisfaction of Tenant's remedies under or with
respect to this Lease, the relationship of Landlord and Tenant hereunder or
Tenant's use or occupancy of the Premises.
31.5. FORCE MAJEURE. The obligations of the parties hereunder shall be in
no way affected, impaired or excused, nor shall the parties have any liability
whatsoever to each other, because:
31.5.1. The parties are unable to fulfill, or are delayed in
fulfilling, any of their obligations under this Lease by reason of strike, other
labor trouble, governmental pre-emption 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 the parties' reasonable control (other than lack of funds);
or
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31.5.2. 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 the parties' reasonable
control (other than failure to make payment).
31.6. DEFINITIONS. For the purpose of this Lease, the following terms have
the meanings indicated:
31.6.1. The term "MORTGAGE" shall include a mortgage and/or deed of
trust, and the term "HOLDER OF A MORTGAGE" or "MORTGAGEE" or words of similar
import shall include a mortgagee of a mortgage or a beneficiary of a deed of
trust.
31.6.2. The term "LEGAL REQUIREMENTS" shall mean laws and ordinances
of any or all of the federal, state, city, town, county, borough and village
governments and rules, regulations, orders and directives of any and all
departments, subdivisions, bureaus, agencies or offices thereof, and of any
other governmental, public or quasi-public authorities having jurisdiction over
the Building and/or the Premises, and the direction of any public officer
pursuant to law, whether now or hereafter in force.
31.6.3. The term "REQUIREMENTS OF INSURANCE BODIES" and words of
similar import shall mean rules, regulations, orders and other requirements of
the Oregon Surveying and Rating Bureau and/or any other similar body performing
the same or similar functions and having jurisdiction or cognizance over the
Building and/or the Premises, whether now or hereafter in force.
31.6.4. The term "TENANT" shall mean the Tenant herein named or any
assignee or other successor in interest (immediate or remote) of the Tenant
herein named, which at the time in question is the owner of the Tenant's estate
and interest granted by this Lease; but the foregoing provisions of this
subsection shall not be construed to permit any assignment of this Lease or to
relieve the Tenant herein named or any assignee or other successor in interest
(whether immediate or remote) of the Tenant herein named from the full and
prompt payment, performance and observance of the covenants, obligations and
conditions to be paid, performed and observed by Tenant under this Lease.
31.6.5. The term "LAND" shall mean the real property lot or parcel
upon which the Building is located including without limitation parking areas,
landscaped areas, walkways, driveways, sidewalks and curbs.
31.6.6. The term "LANDLORD" shall mean only the owner at the time in
question of the Building or of a lease of the Building, so that in the event of
any transfer or transfers of title to the Building or of Landlord's interest in
a lease of the Building, the transferor shall be and hereby is relieved and
freed of all obligations of Landlord under this Lease accruing after such
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transfer, provided it shall be deemed without further agreement that such
transferee has assumed and agreed to perform and observe all obligations of
Landlord herein during the period it is the holder of Landlord's interest under
this Lease.
31.6.7. The term "HEREIN," "HEREOF" and "HEREUNDER," and words of
similar import, shall be construed to refer to this Lease as a whole, and not to
any particular Section, unless expressly so stated.
31.6.8. The term "AND/OR" when applied to two or more matters or
things shall be construed to apply to any one or more or all thereof as the
circumstances warrant at the time in question.
31.6.9. The term "PERSON" shall mean natural person or persons, a
partnership, a corporation and any other form of business or legal association
or entity.
31.6.10. For purposes of this Lease, "SUBSTANTIALLY COMPLETE" in
connection with the Premises shall mean the Landlord's Work and the Tenant
Improvement Work to be constructed by Landlord or Landlord's contractor in
accordance with EXHIBIT C, any plans and specifications therefor (including the
final plans) and the requirements of all governmental authorities and fire
underwriters are sufficiently complete so that Tenant can occupy or utilize such
work for its intended purpose except for Punch List items. Punch List items for
purposes of this definition means items which are qualitatively minor and which
do not prevent Tenant from occupying or utilizing such work for its intended
purposes.
31.7. EFFECT OF EXPIRATION. Upon the expiration or other termination of
this Lease, neither party shall have any further obligation or liability to the
other except as otherwise expressly provided in this Lease and except for such
obligations as by their nature or under the circumstances can only be, or by the
provisions of this Lease, may be, performed after such expiration or other
termination; and, in any event, unless otherwise expressly provided in this
Lease, any liability for a payment (including, without limitation, Additional
Rent, herein) which shall have accrued to or with respect to any period ending
at the time of expiration or other termination of this Lease shall survive the
expiration or other termination of this Lease.
31.8. MODIFICATIONS FOR SUPERIOR MORTGAGEE. If any Superior Mortgagee
shall require any modification(s) of this Lease, Tenant upon ten (10) days'
prior written notice of Landlord's request, shall execute and deliver to
Landlord such instruments effecting such modification(s) as Landlord shall
require, provided that such modification(s) do not adversely affect in any
material respect any of Tenant's rights under this Lease.
31.9. EXCAVATION. Intentionally Deleted.
31.10. UNION CONTRACTS. Tenant agrees that the exercise of its rights
pursuant to the provision of Section 12 or of any other provisions of this Lease
or the Exhibits hereto shall not be done in a manner which would violate
Landlord's union contracts affecting the Land and/or
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Building, nor create any lawful work stoppage, picketing, labor disruption or
dispute or any interference with the business of Landlord or any tenant or
occupant of the Building.
31.11. PRORATIONS. Any apportionments or prorations of Base Rent or
Additional Rent to be made under this Lease shall be computed on the basis of a
three hundred sixty (360) day year, with twelve (12) months of thirty (30) days
each.
31.12. GOVERNING LAW. Regardless of the place of execution or performance,
this Lease shall be governed by and construed in accordance with the laws of the
State of Oregon. If any provision of this Lease or the application thereof to
any person or circumstances shall, for any reason and to any extent, be invalid
or unenforceable, the remainder of this Lease and the application of that
provision to other persons or circumstances shall not be affected but rather
shall be enforced to the extent permitted by law. The table of contents,
captions, heading and titles in this Lease are solely for convenience or
reference and shall not affect its interpretation. All terms and words used in
this Lease, regardless of the number or gender in which they are used, shall be
deemed to include any other number and any other gender as the context may
require. Time is of the essence of this Lease and all of its provisions.
31.13. LIGHT AIR AND VIEW. Any diminution or shutting off of light, air or
view by any structure which may be erected on lands adjacent to or near the
Building shall in no way affect this Lease or impose any liability on Landlord.
31.14. TENANT REPRESENTATIONS. If Tenant is a corporation, each person
executing this Lease on behalf of Tenant does hereby covenant and warrant that:
31.14.1. Tenant is duly incorporated and validly existing under the
laws of its state of incorporation, and, if such corporation is existing under
the laws of a jurisdiction other than Oregon, qualified to transact business in
Oregon;
31.14.2. Tenant has full corporate right and authority to enter
into this Lease and to perform all Tenant's obligations hereunder; and
31.14.3. Each person (and both of the persons if more than one
signs) signing this Lease on behalf of the corporation is duly and validly
authorized to do so.
31.15. DEFINED TERMS. Words capitalized other than as the first word of a
sentence are defined terms and have the meaning, throughout this Lease, given to
them when they are first used with an initial capital or when used in quotation
marks.
31.16. COUNTERPARTS. This Lease may be executed in one or more
counterparts by separate signature, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument, binding
on all parties hereto, even though all parties are not signatories to the
original or to the same counterpart. Any counterpart of this Lease that has
attached to it separate signature pages, which together contain the signatures
of all parties, shall
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for all purposes be deemed a fully executed instrument, and in making proof of
this Lease, it shall not be necessary to produce or account for more than one
such counterpart.
31.17. COSTS AND ATTORNEY FEES.
31.17.1. NO SUIT OR ACTION FILED. If this Lease is placed in the
hands of an attorney due to a default in the payment or performance of any of
its terms, the defaulting party shall pay, immediately upon demand, the other
party's reasonable attorney fees, collection costs even though no suit or action
is filed thereon, and any other reasonable fees or expenses incurred by the
nondefaulting party.
31.17.2. ARBITRATION OR MEDIATION; TRIAL AND APPEAL. If any
arbitration, mediation, or other proceeding is brought in lieu of litigation, or
if legal action is instituted to enforce or interpret any of the terms of this
Lease or if legal action is instituted in a Bankruptcy Court for a United States
District Court to enforce or interpret any of the terms of this Lease, to seek
relief from an automatic stay, to obtain adequate protection, or to otherwise
assert the interest of Landlord in a bankruptcy proceeding, the party not
prevailing shall pay the prevailing party's costs and disbursements, the fees
and expenses of expert witnesses in determining reasonable attorney fees
pursuant to ORCP 68, and such sums as the court may determine to be reasonable
for the prevailing party's attorney fees connected with the trial and any appeal
and by petition for review thereof.
31.17.3. DEFINITIONS. For purposes of this Lease, the term attorney
fees includes all charges of the prevailing party's attorneys and their staff
(including without limitation legal assistants, paralegals, word processing, and
other support personnel) and any postpetition fees in a bankruptcy court. For
purposes of this Lease, the term fees and expenses includes but is not limited
to long-distance telephone charges; expenses of facsimile transmission; expenses
for postage (including costs of registered or certified mail and return
receipts), express mail, or parcel delivery; mileage and all deposition charges,
including but not limited to court reporters' charges, appearance fees, and all
costs of transcription; costs incurred in searching records.
31.18. CONSENT. Except where otherwise expressly provided for in this
Lease, any consent or approval required under this Lease, pursuant to the terms
of this Lease, may not be unreasonably withheld, conditioned or delayed.
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IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease
Agreement as of the date and year first above written.
<TABLE>
<CAPTION>
--------------------------------------------------------------------------------
<S> <C>
LANDLORD: TENANT:
FOX TOWER, L.L.C., an Oregon limited WEBTRENDS CORPORATION, an Oregon
liability company Corporation
By:__________________________________ By:___________________________________
Title:_______________________________ Title:________________________________
Date:________________________________ Date:_________________________________
--------------------------------------------------------------------------------
</TABLE>
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EXHIBIT A
LEGAL DESCRIPTION FOR LAND
Lots 1, 2, 3, 4, 5, 6, 7 and 8, Block 210, CITY OF PORTLAND, in the City of
Portland, County of Multnomah, and State of Oregon.
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EXHIBIT C
WORK AGREEMENT
FOR
FOX TOWER LEASE AGREEMENT
DATE: as of June 20, 2000
BETWEEN: FOX TOWER, LLC,
an Oregon limited liability company ("Landlord")
AND: WebTrends Corporation, an Oregon Corporation ("Tenant")
RECITALS
Landlord and Tenant have entered into a Lease for space in the Fox Tower
Building dated on the same date as this Work Agreement. The purpose of this
agreement is to set forth a separate contract between Landlord and Tenant
respecting the construction of improvements within the space to be occupied by
the Tenant. The terms of the Lease are incorporated herein by reference. To the
extent of any conflict between the terms of this Work Agreement and the terms of
the Lease, the terms of this Work Agreement control.
1. TENANT IMPROVEMENT ALLOWANCE.
Landlord shall pay up to a maximum of Thirty Dollars ($30) per useable
square foot of area in the Premises (the "Tenant Improvement Allowance") towards
the cost of Tenant Improvement Work to be constructed in the Premises. The
Premises contains 54,918 useable square feet of area. To the extent the Tenant
Improvement Allowance is not fully utilized for Tenant Improvement Work, then
the remainder of such allowance may be used for Tenant's moving expenses, wiring
and cable or such other costs related to Tenant's use and occupancy of the
Premises (other than furniture, fixtures and equipment) as Tenant may determine
in its sole discretion. For purposes of this Work Agreement the term "Tenant
Improvement Work" shall mean all improvements in the Premises other than
Landlord's Work including architectural, engineering and other design costs,
permits and specialty electrical, mechanical equipment and construction
management fees. Landlord's architect shall provide all architectural plans and
specifications for the Tenant Improvement Work. Landlord shall contract with a
general contractor approved by Tenant to cause the Tenant Improvement Work to be
completed. Hoffman Construction Company is hereby approved as general contractor
for the 5th floor. Landlord shall cause Hoffman Construction Company to prepare
its budget on an open book basis and to obtain bids from at least three (3)
subcontractors for all work except (a) pre-purchase of fan-powered boxes and (b)
items that do not reasonably lend themselves to competitive bidding (such as
general conditions which shall be industry standard) or de minimis items. To
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the extent the Tenant Improvement Allowance is not fully utilized for Tenant
Improvement Work, Landlord shall disburse the remainder of such allowance for
charges authorized under this paragraph to Tenant within thirty (30) days after
receipt of paid invoices for such charges and Tenant's occupancy of the entire
Premises. In the event Landlord does not reimburse to Tenant the amount of the
Tenant Improvement Allowance within the time period set forth above, Tenant may
charge interest at the lesser of fifteen percent (15%) per annum, or the highest
interest allowed by law. If the cost of the Tenant Improvement Work provided in
Landlord's notice to Tenant and as approved by Tenant exceeds the Tenant
Improvement Allowance (the "TENANT'S EXPENSE"), Tenant shall pay the excess cost
as such progress payments are made based on the ratio that the Tenant's Expense
bears to the total cost of the Tenant Improvement Work.
2. DESIGN OF TENANT IMPROVEMENTS.
Tenant shall furnish complete information respecting Tenant's requirements
to Landlord on or before execution hereof for the 5th Floor, September 15, 2000
for the 6th Floor and April 1, 2001 for the 15th Floor. The information to be
provided by Tenant shall include: (i) a schematic design plan; (ii) detailed
programming information on power loads, equipment loads, special furniture
combinations, special lighting and lighting controls and similar detailed
programming information; (iii) any plans or specifications for improvements that
deviate from base building improvements. The final plans prepared by Landlord's
architect are herein collectively referred to as the "final plans." The final
plans shall be subject to the review and approval of Tenant, which approval
shall not be unreasonably withheld. Tenant shall have ten (10) days in which to
approve or disapprove of the final plans. If Tenant disapproves of the final
plans, such disapproval shall be in writing with sufficient specificity to allow
Landlord to discern and address the reasons for the disapproval. Tenant shall
approve or disapprove re-submitted final plans three (3) days after receipt.
After receipt of the final plans from Landlord's architect, Landlord shall
notify Tenant of the actual cost of the Tenant Improvement Work. The cost of the
Tenant Improvement Work shall be determined by using competitive bidding or on a
negotiated basis at competitive rates. Within seven (7) business days of the
receipt of the total cost for Tenant Improvement Work, Tenant shall give
Landlord written authorization to complete the Tenant Improvements in accordance
with the final plans. The Tenant may, in such authorization, delete or modify
items to reduce the cost of the Tenant Improvement Work.
3. CONSTRUCTION OF TENANT IMPROVEMENTS.
3.1 Construction. Landlord shall cause Landlord's contractor to complete
the Tenant Improvement Work in accordance with the approved final plans.
3.2 Construction Management Fee. Landlord shall be entitled to charge a
construction management fee for Tenant Improvement Work equal to two and
one-half percent (2 1/2%) of the cost of such work for the fifth, sixth and
fifteenth floors. Landlord shall not be entitled to recover any further charges
or costs for the involvement of Landlord or its employees in the Tenant
Improvement Work. Tenant may elect to serve as its own construction manager for
the Tenant Improvement Work on the sixth and fifteenth floors, in which case,
Landlord shall not be entitled to a construction management fee.
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3.3 Permits. All work shall be done in conformity with a valid building
permit (obtained at Tenant's expense) when required, and in any case, all such
work shall be performed in accordance with all applicable governmental
regulations at Tenant's sole expense.
3.4 Coordination. All work shall be scheduled through Landlord.
3.5 Manner of Entry. Tenant's entry to the Premises for any purpose,
including without limitation, inspection or performance of Tenant construction
by Tenant's agents, prior to the Lease Commencement Date as specified in the
Basic Lease Information shall be at such times as are approved by Landlord and
subject to all the terms and conditions of the lease except for the payment of
Rent. Tenant's entry shall mean entry by Tenant, its officers, contractors,
licensees, agents, servants, employees, guests, invitees, or visitors.
4. LANDLORD'S WORK.
Landlord shall provide the following Base Building Improvements for each
floor at Landlord's expense ("LANDLORD'S WORK")
4.1 HVAC
- Complete HVAC system up to and including up to 12 VAV Boxes and
thermostats per floor
- Diffusers stockpiled on the floor
- Capable of maintaining 74 degrees in cooling assuming an
occupancy load (people, equipment and lighting) of 5 watts per
sq. ft. and 68 degrees in heating mode assuming the lowest
typical winter temperatures in the area.
4.2 Plumbing
- Plumbing stub-outs at north and south ends of the core for each
floor (future tenant distribution, if any, at tenant's expense)
4.3 Electrical & Lighting
- Electrical panels with circuit breakers provided in each floor
electrical room (lighting & power)
- Life Safety System installed above the ceiling (expansion as
required by code to meet non standard tenant plans, at tenant's
expense)
- 2'x4' parabolic troffer fixtures with lamps
4.4 Fire Sprinklers
- Fire sprinkler system installed above the ceiling on standard
layout
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4.5 Ceiling
- Building standard 2x2 ceiling grid stockpiled on each office
floor (wires hung from ceiling)
- Building standard acoustical ceiling tile stockpiled on each
office floor
4.6 Core
- Restrooms 100% complete
- Lobby walls and ceiling sheetrocked/taped/ready for paint with
light fixtures installed
- Core walls sheetrocked/taped/ready for paint
4.7 Exterior Window Wall/Columns
- Metal stud framing at walls and columns with sheetrock closure at
sill/ready for sheetrock
- Metal framed soffits at exterior wall ready for sheetrock
4.8 Interior Columns
- Metal Stud framing/ready for sheetrock
4.9 Window Coverings
- Building Standard window coverings identified as Draper SW 3500.
4.10 All permits, fees, licenses, architectural drawings, engineering,
consulting services, testing services, and the like necessary for
Landlord's Work, including, but not limited to, water connection or
capacity fees, sewer connection or capacity fees,
development/license taxes, school related fees, traffic impact fees,
public facilities fees, or any other development fees, or offsite
development requirements shall be provided by Landlord at its sole
cost and expense.
4.11 Landlord's Work and the Tenant Improvement Work performed by
Landlord's contractor shall be completed in accordance with all
applicable governing codes and the final plans and specifications.
If Landlord fails to correct or complete Punch List items in
accordance with Section 3 of the Lease, Tenant shall have the option
to complete Landlord's Work and Landlord shall reimburse Tenant for
the cost thereof within thirty (30) days after demand. If Landlord
fails to reimburse Tenant within such time period, the amount due
shall bear interest from the date of such failure at the rate set
forth in Section 21.4 of the Lease. Landlord warrants all Landlord's
Work and the Tenant Improvement Work performed by Landlord's
contractor, including, but not limited to mechanical, electrical and
plumbing systems, for a period of at least one (1) year. Nothing
herein shall reduce Landlord's repair and maintenance obligations
under the Lease.
4.12 Upon completion of Landlord's Work and the Tenant Improvement Work
performed by Landlord's contractor, Landlord will provide Tenant
with the names
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and addresses of the general contractor and the other contractors,
subcontractors, suppliers and vendors involved in Landlord's Work
and the Tenant Improvement Work performed by Landlord's contractor.
4.13 Disputes: Disputes regarding design, approval, construction,
completion, correction of work, payment for Tenant Improvement Work
or any other rights and obligations of the parties under this Work
Agreement shall be resolved pursuant to binding arbitration in
Portland, Oregon before a single arbitrator within sixty (60) days
of submission. Unless otherwise agreed, the arbitration shall be
conducted in accordance with the rules of the Arbitration Service of
Portland ("ASP") or if ASP is not in existence, the Commercial Rules
of the American Arbitration Association.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Work
Agreement as of the day and year first above written.
LANDLORD: FOX TOWER, LLC,
an Oregon limited liability company
By:___________________________________
Title:________________________________
TENANT: WEBTRENDS CORPORATION,
an Oregon corporation
By:___________________________________
Title:________________________________
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EXHIBIT E
FOX TOWER, L.L.C.
RULES AND REGULATIONS
1. The rights of each tenant in the entrances, corridors and elevators
servicing the Building are limited to ingress to and egress from such tenant's
Premises for the tenant and its employees, licensees and invitees, and no tenant
shall use, or permit the use of, the entrances, corridors or elevators for any
other purpose. No tenant shall invite to the tenant's Premises, or permit the
visit of, persons in such numbers or under such conditions as to interfere with
the use and enjoyment of any of the plazas, entrances, corridors, elevators and
other facilities of the Building by any other tenants. No tenant shall encumber
or obstruct, or permit the encumbrance or obstruction of any of the sidewalks,
plazas, entrances, corridors, elevators, fire exits or stairways of the
Building. Landlord reserves the right to control and operate the public portions
of the Building and the public facilities as well as facilities furnished for
the common use of the tenants, in such manner as it in its reasonable judgment
deems best for the benefit of the tenants generally.
2. Admission to the Building in certain areas and during certain hours
may be restricted by Landlord by means of access devices such as keys, entry
cards, combination codes and the like. Landlord may require all person admitted
to or leaving the Building outside of business hours on business days to provide
appropriate identification, use a designated access device and to comply with
all other Building security requirements. Tenant shall be responsible for all
persons to whom it issues an access device or discloses an access code and shall
be liable to Landlord for all acts or omissions of such persons. Any person
whose presence in the Building at any time shall, in the judgment of Landlord,
be prejudicial to the safety, character or reputation of the Building or of its
tenants may be denied access to the Building or may be ejected therefrom. During
any invasion, riot, public excitement or other commotion, Landlord may prevent
all access to the Building by closing the doors or otherwise for the safety of
the tenants and protection of property in the Building. Each tenant shall pay
Landlord a refundable deposit in an amount determined by Landlord from time to
time for each access device issued to a tenant.
3. Smoking is prohibited at all times in all common areas of the
Building, including, but not limited to, restrooms, corridors, stairwell,
lobbies and elevators.
4. No tenant shall obtain or accept for use in its Premises cleaning or
other similar services from any persons reasonably prohibited in writing from
furnishing such services. Such services shall be furnished only at such hours,
and under such reasonable regulations, as may be fixed by Landlord from time to
time.
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5. The cost of repairing any damage to the public portions of the
Building, the common areas or the public facilities or to any facilities used in
common with other tenants, caused by a tenant or its employees, agents,
contractors, licensees or invitees, shall be paid by such tenant.
6. Tenant shall attach no awnings or other projections to the outside
walls of the Building. No curtains, blinds, shades or screens, if any, which are
different from the standards adopted by Landlord for the Building shall be
attached to or hung in or used in connection with any exterior window or door of
the Premises of any tenant without the prior written consent of Landlord. All
tenants with Premises visible from one of the lobbies, or any other public
portion of the Building, shall furnish and maintain the Premises in a first
class manner, utilizing furnishings and other decorations commensurate in
quality and style with the furnishings and decor in the public portions of the
Building.
7. No lettering, sign advertisement, notice or object shall be
displayed in or on the exterior windows or doors, on the outside of any tenant's
Premises, or at any point inside any tenant's Premises where the same might be
visible outside of such Premises, without the prior written consent of Landlord.
In the event of the violation of the foregoing by any tenant, Landlord may
remove the same without any liability, and may charge the expense incurred in
such removal to the tenant violating this rule. Interior signs, elevator cab
designations, and lettering on doors shall, if and when approved by Landlord, be
inscribed, painted or affixed for each tenant by Landlord at the expense of such
tenant and shall be of a size, color and style acceptable to Landlord.
8. The windows that reflect or admit light and air into the halls,
passageways or other public places in the Building shall not be covered or
obstructed by any tenant, nor shall any bottles, parcels or other articles be
placed on the windowsills.
9. No showcases or other articles shall be put in front of or affixed
to any part of the exterior of the Building nor placed in the halls, corridors
or vestibules.
10. No bicycles, vehicles, animals, fish or birds of any kind shall be
brought into or kept in or about the Premises of any tenant or the Building
except in areas designated by Landlord.
11. No noise, including, but not limited to, music or the playing of
musical instruments, recordings, radio or television, which in the judgment of
Landlord, might disturb other tenants in the Building, shall be made or
permitted by any tenant. Nothing shall be done or permitted in the Premises of
any tenant which would impair or interfere with the use or enjoyment by any
other tenant of any other space in the Building.
12. No tenant, nor any tenant's contractors, employees, agents, visitors
or licensees, shall at any time bring into or keep upon the Premises or the
Building any inflammable, combustible, explosive or otherwise dangerous fluid,
chemical or substance.
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13. Additional locks or bolts of any kind which shall not be operable by
the Grand Master Key for the Building shall not be placed upon any of the doors
or windows by any tenant, nor shall any changes be made in locks or mechanisms
thereof which shall make such locks inoperable by said Grand Master Key.
Additional keys for a tenant's Premises and restrooms shall be procured only
from the Landlord who may make a reasonable charge therefor. Each tenant shall,
upon the termination of its tenancy, turn over to Landlord all keys of stores,
offices and toilet rooms, either furnished to, or otherwise procured by, such
tenant, and in the event of the loss of any keys furnished by Landlord, such
tenant shall pay to Landlord the cost thereof.
14. All removals, or the carrying in or out of any safes, freight,
furniture, packages, boxes, crates, trash and rubbish, or any other object or
matter of any description must take place during such hours and in such
elevators, and in such manner as Landlord or its agent may reasonably determine
from time to time. The person employed to move safes and other heavy objects
shall be reasonably acceptable to Landlord and, if so required by law, shall
hold a Master. Rigger's or comparable license. Arrangements will be made by
Landlord with any tenant for moving large quantities of furniture and equipment
into or out of the Building. All labor and engineering costs incurred by
Landlord in connection with any moving specified in this rule, including a
reasonable charge for overhead and profit, shall be paid by Tenant to Landlord,
on demand.
15. Landlord reserves the right to inspect all objects and matter to be
brought into the Building and to exclude from the Building all objects and
matter which violate any of these Rules and Regulations or the Lease of which
this Exhibit is a part. Landlord may require any person leaving the Building
with any package or other object or matter to submit a pass listing such package
or object or matter from the tenant from whose Premises the package or object or
matter is being removed, but the establishment and enlargement of such
requirement shall not impose any responsibility on Landlord for the protection
of any tenant against the removal of property from the Premises of such tenant.
Landlord shall in no way be liable to any tenant for damages or loss arising
from the admission, exclusion or ejection of any person to or from the Premises
or the Building under the provisions of this Rule or of Rule 2 hereof.
16. No tenant shall occupy or permit any portion of its Premises to be
occupied as an office for secretarial or word processing services without the
prior written consent of Landlord. No tenant shall use its Premises or any part
thereof to be used, for manufacturing or the sale at retail or auction of
merchandise, goods or property of any kind or for the possession, storage,
manufacture, or sale of liquor, narcotics, dope, tobacco in any form, or as a
barber, beauty or manicure shop, or as a school (excluding employee training).
17. Landlord shall have the right to prohibit any advertising which
mentions the Building or identifying sign by any tenant which, in Landlord's
reasonable judgment, impairs the reputation of the Building or its desirability
as a building for others, and upon written notice from Landlord, such tenant
shall refrain from and discontinue such advertising or identifying sign.
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18. Landlord shall have the right to reasonably prescribe the weight and
position of safes and other objects of excessive weight, and no safe or other
object whose weight exceeds the lawful load for the area upon which it would
stand shall be brought into or kept upon any tenant's Premises. If, in the
reasonable judgment of Landlord, it is necessary to distribute the concentrated
weight of any heavy object, the work involved in such distribution shall be done
at the expense of the tenant and in such manner as Landlord shall determine.
19. No machinery or mechanical equipment other than ordinary portable
business machines may be installed or operated in any tenant's Premises without
Landlord's prior written consent which consent shall not be unreasonably
withheld or delayed, and in no case (even where the same are of a type so
excepted or as so consented to by Landlord) shall any machines or mechanical
equipment be so placed or operated as to disturb other tenants, but machines and
mechanical equipment which may be permitted to be installed and used in a
tenant's Premises shall be so equipped, installed and maintained by such tenant
as to prevent any disturbing noise, vibration or electrical or other
interference from being transmitted from such Premises to any other area of the
Building.
20. Landlord, its contractors, and their respective employees, shall
have the right to use, without charge therefor, all light, power and water in
the Premises of any tenant while cleaning or making repairs or alterations in
the Premises of such tenant.
21. No Premises of any tenant shall be used for lodging or sleeping or
for any immoral or illegal purpose.
22. The requirements of tenants will be attended to only upon
application at the office of the Building. Employees of Landlord shall not
perform any work or do anything outside of the regular duties, unless under
special instructions from Landlord.
23. Canvassing, soliciting and peddling in the Building are prohibited
and each tenant shall cooperate to prevent the same.
24. No tenant shall cause or permit any unusual or objectionable odors
to emanate from its Premises which would annoy other tenants or create a public
nuisance. No cooking shall be done in the Premises of any tenant except as is
expressly permitted in such tenant's Lease.
25. Nothing shall be done or permitted in any tenant's Premises, and
nothing shall be brought into or kept in any tenant's Premises, which would
impair or interfere with any of the Building's services or the proper and
economic heating, cleaning or other servicing of the Building or the Premises,
of the use or enjoyment by any other tenant of any other Premises, nor shall
there be installed by any tenant any ventilating, air-conditioning, electrical
or other equipment of any kind which, in the reasonable judgment of Landlord,
would cause any such impairment or interference.
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26. No acids, vapors or other materials shall be discharged or permitted
to be discharged into the waste lines, vents or flues of the Building which may
damage them. The water and wash closets and other plumbing fixtures in or
serving any tenant's Premises shall not be used for any purpose other than the
purposes for which they were designed or constructed, and no sweepings, rubbish,
rags, acids or other foreign substances shall be deposited therein. All damages
resulting from any misuse of the fixtures shall be borne by the tenants who, or
whose servants, employees, agents, visitors or licensees shall have caused the
same. Any cuspidors or containers or receptacles used as such in the Premises of
any tenant or for garbage or similar refuse, shall be emptied, cared for and
cleaned by and at the expense of such tenant. Cooking oils and grease shall not
be disposed of in Building trash compactors or receptacles.
27. All entrance doors in each tenant's Premises shall be left locked
and all windows shall be left closed by the tenant when the tenant's Premises
are not in use. Entrance doors shall not be propped open at any time. Each
tenant, before closing and leaving its Premises at any time, shall turn out all
lights.
28. Hand trucks not equipped with rubber tires and side guards shall not
be used within the Building.
29. The coverings for all windows in each tenant's Premises above the
ground floor shall be lowered and closed as reasonably required because of the
position of the sun, during the operation of the Building air-conditioning
system to cool or ventilate the tenant's Premises.
30. Landlord reserves the right to rescind, alter or waive any rule or
regulation at any time prescribed for the Building when, in its reasonable
judgment, it deems it necessary, desirable or proper for its best interest and
for the best interests of the tenants generally, and no alteration or waiver of
any rule or regulation in favor of one tenant shall operate as an alteration or
waiver in favor of any other tenant. Landlord shall not be responsible to any
tenant for the nonobservance or violation by any other tenant of any of the
rules and regulations at any time prescribed for the Building.
31. Any grease or oil waste from food service operations shall be placed
in a separate container provided and maintained by the Tenant on the loading
dock.
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EXHIBIT F-1
SUBORDINATION, NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
(Construction Lender)
AFTER RECORDING RETURN TO:
BANK OF AMERICA, N.A.,
a national banking association, as Agent
OR1-129-07-41
Attention: Ms. Kathleen Spittal
P.O. Box 6400
Portland, Oregon 97228 Loan No. 4503453089
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
This Subordination, Non-Disturbance and Attornment Agreement (this
"Agreement") dated November 1, 1999, is made among _____________________________
("Tenant"), FOX TOWER, L.L.C., AN OREGON LIMITED LIABILITY COMPANY ("Landlord"),
and BANK OF AMERICA, N.A., A NATIONAL BANKING ASSOCIATION, AS AGENT FOR ITSELF
AND BANK ONE, ARIZONA, NA, A NATIONAL BANKING ASSOCIATION, and KEYBANK NATIONAL
ASSOCIATION, A NATIONAL BANKING ASSOCIATION (collectively, "Lender").
WHEREAS, Lender is the owner of three (3) line of credit promissory notes
(herein, as they may have been or may be from time to time renewed, extended,
amended, supplemented, or restated, called, collectively, the "Note") dated
October 15, 1999, executed by Landlord payable to the order of parties
comprising Lender, respectively, in the aggregate principal amount of
$80,000,000.00, bearing interest and payable as therein provided, secured by,
among other things, a Line of Credit Commercial Deed of Trust, Security
Agreement and Fixture Filing with Assignment of Leases and Rents (herein, as it
may have been or may be from time to time renewed, extended, amended or
supplemented, called the "Deed of Trust"), recorded or to be recorded in the
land records of Multnomah County, Oregon, covering, among other property, the
land (the "Land") described in Exhibit "A" which is attached hereto and
incorporated herein by reference, and the improvements ("Improvements") thereon
(such Land and Improvements being herein together called the "Property");
WHEREAS, Tenant is the tenant under a lease from Landlord dated
_______________________, (herein, as it may from time to time be renewed,
extended, amended or supplemented, called the "Lease"), covering a portion of
the Property (said portion being herein referred to as the "Premises"); and
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WHEREAS, the term "Landlord" as used herein means the present landlord
under the Lease or, if the landlord's interest is transferred in any manner, the
successor(s) or assign(s) occupying the position of landlord under the Lease at
the time in question.
NOW, THEREFORE, in consideration of the mutual agreements herein, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. Subordination. Subject to the provisions of this Agreement, Tenant
agrees and covenants that the Lease and the rights of Tenant thereunder, all of
Tenant's right, title and interest in and to the Premises are and shall be
subject, subordinate and inferior to (a) the Deed of Trust and the rights of
Lender thereunder, and all right, title and interest of Lender in the Property,
and (b) all other security documents now or hereafter securing payment of any
indebtedness of the Landlord (or any prior landlord) to Lender which cover or
affect the Property (the "Security Documents"). This Agreement is not intended
and shall not be construed to subordinate the Lease to any deed of trust or
other security document other than those referred to in the preceding sentence,
securing the indebtedness to Lender.
2. Non-Disturbance. Lender agrees that so long as the Lease is in full
force and effect and Tenant is not in default in the payment of rent, additional
rent or other payments or in the performance of any of the other terms,
covenants or conditions of the Lease on Tenant's part to be performed (beyond
the period, if any, specified in the Lease within which Tenant may cure such
default),
a. Tenant's possession of the Premises under the Lease shall not
be disturbed or interfered with by Lender in the exercise of any of its rights
under the Deed of Trust, including any foreclosure or conveyance in lieu of
foreclosure, and
b. Lender will not join Tenant as a party defendant for the
purpose of terminating Tenant's interest and estate under the Lease in any
proceeding for foreclosure of the Deed of Trust.
3. Attornment.
a. Tenant covenants and agrees that in the event of foreclosure
of the Deed of Trust, whether by power of sale or by court action, or upon a
transfer of the Property by conveyance in lieu of foreclosure (the purchaser at
foreclosure or the transferee in lieu of foreclosure, including any of the
parties comprising Lender if it is such purchaser or transferee, being herein
called "New Owner"), Tenant shall attorn to the New Owner as Tenant's new
landlord, and agrees that the Lease shall continue in full force and effect as a
direct lease between Tenant and New Owner upon all of the terms, covenants,
conditions and agreements set forth in the Lease and this Agreement; provided,
however, that in no event shall the New Owner be:
i. liable for any act, omission, default,
misrepresentation, or breach of warranty, of any previous landlord (including
Landlord) or obligations accruing prior to New
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Owner's actual ownership of the Property except for repair and maintenance
obligations of a continuing nature imposed on Landlord under the Lease;
ii. subject to any offset, defense, claim or counterclaim
which Tenant might be entitled to assert against any previous landlord
(including Landlord) except for repair and maintenance obligations of a
continuing nature imposed on Landlord under the Lease;
iii. bound by any payment of rent, additional rent or other
payments, made by Tenant to any previous landlord (including Landlord) for more
than one (1) month in advance;
iv. bound by any material amendment, or modification of the
Lease hereafter made, or consent, or acquiescence by Landlord under the Lease to
any assignment or sublease hereafter granted with respect to the Premises,
without the written consent of Lender; for purposes of this agreement, the term
"material" shall include but not be limited to changes that would increase
Landlord's obligations or decrease Tenant's obligations (financial or otherwise)
under the Lease;
v. liable for any deposit that Tenant may have given to
any previous landlord (including Landlord) which has not, as such, been
transferred to New Owner;
vi. bound to commence or complete any construction or to
make any contribution toward construction or installation of any improvements
upon the Property required under the Lease or any expansion or rehabilitation of
existing improvements thereon, or for restoration of improvements following any
casualty not required to be insured under the Lease or for the costs of any
restoration in excess of any proceeds recovered under any insurance required to
be carried under the Lease; provided however, that if New Owner elects not to
commence, construct, contribute or restore and such action is required of
Landlord under the Lease, Tenant may exercise its applicable rights and
remedies, if any, under the Lease;
(vii) bound by any restriction on competition beyond the
Property; or
(viii) personally liable under the Lease (New Owner's
liability under the Lease shall be limited to the interest of Lender in the
Property).
b. The provisions of this Agreement regarding attornment by
Tenant shall be self-operative and effective without the necessity of execution
of any new lease or other document on the part of any party hereto or the
respective heirs, legal representatives, successors or assigns of any such
party. Tenant agrees, however, to execute and deliver upon the request of New
Owner, any instrument or certificate which in the reasonable judgment of New
Owner may be necessary or appropriate to evidence such attornment, including a
new lease of the Premises on the same terms and conditions as the Lease for the
unexpired term of the Lease. In addition, the New Owner shall not have any
liability or responsibility under or pursuant to the terms of the Lease or this
Agreement after it ceases to own an interest in or to the Property, provided the
successor to New Owner assumes responsibility for performance of the Landlord's
obligations under the Lease (subject to the limitation of this provision).
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4. Estoppel Certificate. Tenant agrees to execute and deliver from time
to time, upon ten (10) days prior written request, request of Landlord or of any
holder(s) of any of the indebtedness or obligations secured by the Deed of
Trust, a certificate regarding the status of the Lease, consisting of
statements, if true (or if not, specifying why not), (a) that the Lease is in
full force and effect, (b) the date through which rentals have been paid, (c)
the date of the commencement of the term of the Lease, (d) the nature of any
amendments or modifications of the Lease, (e) to the best of Tenant's knowledge
no default, or state of facts which with the passage of time or notice (or both)
would constitute a default, exists under the Lease, (f) to the best of Tenant's
knowledge, no setoffs, recoupments, estoppels, claims or counterclaims exist
against Landlord, and (g) such other matters as may be reasonably and
customarily requested.
5. Acknowledgment and Agreement by Tenant. Tenant acknowledges and
agrees as follows:
a. Tenant acknowledges that Landlord will execute and deliver to
Lender in connection with the financing of the Property an Assignment of Leases
and Rents. Tenant hereby expressly consents to such assignment. Tenant will not
materially amend any provision of, or consent to the material amendment of any
provision of the Lease without the prior written consent of Lender. Tenant shall
not prepay any rents or other sums due under the Lease for more than one (1)
month in advance of the due date therefor. Tenant acknowledges that Lender will
rely upon this instrument in connection with such financing.
b. Lender, in making any disbursements to Landlord, is under no
obligation or duty to oversee or direct the application of the proceeds of such
disbursements, and such proceeds may be used by Landlord for purposes other than
improvement of the Property.
c. From and after the date hereof, in the event of any act or
omission by Landlord which would give Tenant the right, either immediately or
after the lapse of time, to terminate the Lease or to claim a partial or total
eviction, Tenant will not exercise any such right (i) until it has given written
notice of such act or omission to the Lender; and (ii) until the same period of
time as is given to Landlord under the Lease to cure such act or omission shall
have elapsed following such giving of notice to Lender and following the time
when Lender shall have become entitled under the Deed of Trust to remedy the
same, but in any event 30 days after receipt of such notice or such longer
period of time as may be necessary to cure or remedy such default, act, or
omission including such period of time necessary to obtain possession of the
Property and thereafter cure such default, act, or omission, during which period
of time Lender shall be permitted to cure or remedy such default, act or
omission; provided, however, that Lender shall have no duty or obligation to
cure or remedy any breach or default. It is specifically agreed that Tenant
shall not, as to Lender, require cure of any such default which is personal to
Landlord, and therefore not susceptible to cure by Lender.
d. In the event that Lender notifies Tenant of a default under
the Deed of Trust, Note, or Security Documents and demands that Tenant pay its
rent and all other sums due under the Lease directly to Lender, Tenant shall
honor such demand and pay the full amount of its rent and all other sums due
under the Lease directly to Lender, without offset (except as permitted by the
Lease), or as otherwise required pursuant to such notice beginning with the
payment next due
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<PAGE> 54
after such notice of default, without inquiry as to whether a default actually
exists under the Deed of Trust, Security Documents or otherwise in connection
with the Note, and notwithstanding any contrary instructions of or demands from
Landlord.
e. Tenant shall send a copy of any notice or statement under the
Lease to Lender at the same time such notice or statement is sent to Landlord if
such notice or statement has a material impact on the economic terms, operating
covenants or duration of the Lease.
f. Tenant has no right or option of any nature whatsoever,
whether pursuant to the Lease or otherwise, to purchase the Premises or the
Property, or any portion thereof or any interest therein, and to the extent that
Tenant has had, or hereafter acquires, any such right or option, same is hereby
acknowledged to be subject and subordinate to the Deed of Trust and is hereby
waived and released as against Lender and New Owner, in the event such parties
become the Landlord under the Lease.
g. This Agreement satisfies any condition or requirement in the
Lease relating to the granting of a non-disturbance agreement and Tenant waives
any requirement to the contrary in the Lease.
h. Lender and any New Owner shall have no liability to Tenant or
any other party for any conflict between the provisions of the Lease and the
provisions of any other lease affecting the Property, including, but not limited
to, any provisions relating to exclusive or non-conforming uses or rights,
renewal options and options to expand, and in the event of such a conflict,
Tenant shall have no right to cancel the Lease or take any other remedial action
against Lender or New Owner, or against any other party for which Lender or any
New Owner would be liable.
i. Lender and any New Owner shall have no obligation nor incur
any liability with respect to the erection or completion of the improvements in
which the Premises are located or for completion of the Premises or any
improvements for Tenant's use and occupancy, either at the commencement of the
term of the Lease or upon any renewal or extension thereof or upon the addition
of additional space, pursuant to any expansion rights contained in the Lease;
provided however, that if New Owner elects not to erect or complete and such
action is required of Landlord under the Lease, Tenant may exercise its
applicable rights and remedies, if any, under the Lease.
j. Lender and any New Owner shall have no obligation nor incur
any liability with respect to any warranties of any nature whatsoever, whether
pursuant to the Lease or otherwise, including, without limitation, any
warranties respecting use, compliance with zoning, Landlord's title, Landlord's
authority, habitability, fitness for purpose or possession.
k. In the event that Lender or any New Owner shall acquire title
to the Premises or the Property, Lender or such New Owner shall have no
obligation, nor incur any liability, beyond Lender's or New Owner's then equity
interest, if any, in the Property or the Premises, and Tenant shall look
exclusively to such equity interest of Lender or New Owner, if any, for the
payment and discharge of any obligations imposed upon Lender or New Owner
hereunder or
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under the Lease or for recovery of any judgment from Lender, or New Owner, and
in no event shall Lender, New Owner, nor any of their respective officers,
directors, shareholders, agents, representatives, servants, employees or
partners ever be personally liable for such judgment.
l. Tenant has never permitted, and will not permit, the
generation, treatment, storage or disposal of any hazardous substance as defined
under federal, state, or local law, on the Premises or Property except for such
substances of a type and only in a quantity normally used in connection with the
occupancy or operation of buildings (such as non-flammable cleaning fluids and
supplies normally used in the day to day operation of first class establishments
similar to the Improvements), which substances are being held, stored, and used
in strict compliance with federal, state, and local laws. Tenant shall be solely
responsible for and shall reimburse and indemnify Landlord, New Owner or Lender,
as applicable, for any loss, liability, claim or expense, including without
limitation, cleanup and all other expenses, including, without limitation, legal
fees that Landlord, New Owner or Lender, as applicable, may incur by reason of
Tenant's violation of the requirements of this Paragraph 5(l), including fees
and costs, whether at trial, on appeal or otherwise.
6. Acknowledgment and Agreement by Landlord. Landlord, as landlord
under the Lease and grantor under the Deed of Trust, acknowledges and agrees for
itself and its heirs, representatives, successors and assigns, that: (a) this
Agreement does not constitute a waiver by Lender of any of its rights under the
Deed of Trust, Note, or Security Documents, or in any way release Landlord from
its obligations to comply with the terms, provisions, conditions, covenants,
agreements and clauses of the Deed of Trust, Note, or Security Documents; (b)
the provisions of the Deed of Trust, Note, or Security Documents remain in full
force and effect and must be complied with by Landlord; and (c) Tenant is hereby
authorized to pay its rent and all other sums due under the Lease directly to
Lender upon receipt of a notice as set forth in paragraph 5(d) above from Lender
and that Tenant is not obligated to inquire as to whether a default actually
exists under the Deed of Trust, Security Documents or otherwise in connection
with the Note. Landlord hereby releases and discharges Tenant of and from any
liability to Landlord resulting from Tenant's payment to Lender in accordance
with this Agreement. Landlord represents and warrants to Lender that a true and
complete copy of the Lease has been delivered by Landlord to Lender.
7. Lease Status. Landlord and Tenant certify to Lender that neither
Landlord nor Tenant has knowledge of any default on the part of the other under
the Lease, that the Lease is bona fide and contains all of the agreements of the
parties thereto with respect to the letting of the Premises and that all of the
agreements and provisions therein contained are in full force and effect.
8. Notices. All notices, requests, consents, demands and other
communications required or which any party desires to give hereunder shall be in
writing and shall be deemed sufficiently given or furnished if delivered by
personal delivery, by telegram, telex, or facsimile, by expedited delivery
service with proof of delivery, or by registered or certified United States
mail, postage prepaid, at the addresses specified at the end of this Agreement
(unless changed by similar notice in writing given by the particular party whose
address is to be changed). Any such notice or communication shall be deemed to
have been given either at the time of personal
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delivery or, in the case of delivery service or mail, as of the date of first
attempted delivery at the address and in the manner provided herein, or, in the
case of telegram, telex or facsimile, upon receipt. Notwithstanding the
foregoing, no notice of change of address shall be effective except upon
receipt. This Paragraph 8 shall not be construed in any way to affect or impair
any waiver of notice or demand provided in this Agreement or in the Lease or in
any document evidencing, securing or pertaining to the loan evidenced by the
Note or to require giving of notice or demand to or upon any person in any
situation or for any reason.
9. Miscellaneous.
a. This Agreement supersedes any inconsistent provision of the
Lease.
b. Nothing contained in this Agreement shall be construed to
derogate from or in any way impair, or affect the lien, security interest or
provisions of the Deed of Trust, Note, or Security Documents.
c. This Agreement shall inure to the benefit of the parties
hereto, their respective successors and permitted assigns, and any New Owner,
and its heirs, personal representatives, successors and assigns; provided,
however, that in the event of the assignment or transfer of the interest of
Lender, all obligations and liabilities of the assigning Lender under this
Agreement shall terminate, and thereupon all such obligations and liabilities
shall be the responsibility of the party to whom Lender's interest is assigned
or transferred; and provided further that the interest of Tenant under this
Agreement may not be assigned or transferred without the prior written consent
of Lender.
d. THIS AGREEMENT AND ITS VALIDITY, ENFORCEMENT AND
INTERPRETATION SHALL BE GOVERNED BY THE LAWS OF THE STATE OF OREGON AND
APPLICABLE UNITED STATES FEDERAL LAW.
e. The words "herein", "hereof", "hereunder" and other similar
compounds of the word "here" as used in this Agreement refer to this entire
Agreement and not to any particular section or provision.
f. This Agreement may not be modified orally or in any manner
other than by an agreement in writing signed by the parties hereto or their
respective successors in interest.
g. If any provision of the Agreement shall be held to be invalid,
illegal, or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not apply to or affect any other provision hereof, but
this Agreement shall be construed as if such invalidity, illegibility, or
unenforceability did not exist.
10. Any consent required to be obtained from a party hereunder shall not
be unreasonably withheld or delayed by such party.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and sealed as of the date first above written.
<TABLE>
<S> <C>
LENDER: TENANT:
______________________________________
BANK OF AMERICA, N.A., A NATIONAL ______________________________________
BANKING ASSOCIATION, FOR ITSELF AND
AS AGENT
By:__________________________________ By:___________________________________
ALLISON BACIALLI, Name:_________________________________
Assistant Vice President Title:________________________________
By:__________________________________ Address of Tenant:
ALAN D. BLACK, ______________________________________
Vice President ______________________________________
______________________________________
BANK ONE, ARIZONA, NA, A NATIONAL
BANKING ASSOCIATION
LANDLORD:
By:__________________________________
HOWARD W. WEINMAN, FOX TOWER, L.L.C.,
Vice President AN OREGON LIMITED LIABILITY COMPANY
KEYBANK NATIONAL ASSOCIATION,
A NATIONAL BANKING ASSOCIATION By:___________________________________
THOMAS P. MOYER, SR.,
By:__________________________________ Managing Member
JOHN G. MONTGOMERY,
Vice President Address of Landlord:
c/o TMT Development Co., Inc.
Address of Bank: 1000 S.W. Broadway, Suite 900
Bank of America, N.A., as Agent Portland, Oregon 97204
OR1-129-07-41
P.O. Box 6400
Portland, Oregon 97228-6400
</TABLE>
[ACKNOWLEDGMENTS TO BE ATTACHED FOR ALL PARTIES EXECUTING DOCUMENT - SEE
ATTACHED.]
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<PAGE> 58
STATE OF OREGON )
) ss.
COUNTY OF_____________)
This instrument was acknowledged before me on , 2000, by ALLISON BACIALLI
as an Assistant Vice President of BANK OF AMERICA, N.A., A NATIONAL BANKING
ASSOCIATION.
______________________________________
Notary Public for Oregon
My Commission Expires:
STATE OF OREGON )
) ss.
COUNTY OF_____________)
This instrument was acknowledged before me on _____________________, 2000,
by ALAN D. BLACK as a Vice President of BANK OF AMERICA, N.A., A NATIONAL
BANKING ASSOCIATION.
______________________________________
Notary Public for Oregon
My Commission Expires:
STATE OF OREGON )
) ss.
COUNTY OF_____________)
This instrument was acknowledged before me on _____________________, 2000,
by HOWARD W. WEINMAN as Vice President of BANK ONE, ARIZONA, NA, A NATIONAL
BANKING ASSOCIATION.
______________________________________
Notary Public for Oregon
My Commission Expires:
Page 9
<PAGE> 59
STATE OF OREGON )
) ss.
COUNTY OF_____________)
This instrument was acknowledged before me on _____________________, 2000,
by JOHN G. MONTGOMERY as Vice President of KEYBANK NATIONAL ASSOCIATION, A
NATIONAL BANKING ASSOCIATION.
______________________________________
Notary Public for Oregon
My Commission Expires:
STATE OF OREGON )
) ss.
COUNTY OF_____________)
This instrument was acknowledged before me on ___________________, 2000,
by __________________________ as _______________________________________________
of _________________________________.
______________________________________
Notary Public for Oregon
My Commission Expires:
STATE OF OREGON )
) ss.
COUNTY OF_____________)
This instrument was acknowledged before me on _____________________, 2000,
by __________________________ as _______________________________________________
of _________________________________.
______________________________________
Notary Public for Oregon
My Commission Expires:
Page 10
<PAGE> 60
STATE OF OREGON )
) ss.
COUNTY OF_____________)
This instrument was acknowledged before me on _____________________, 2000,
by THOMAS P. MOYER, SR. as Managing Member of FOX TOWER, L.L.C., AN OREGON
LIMITED LIABILITY COMPANY.
______________________________________
Notary Public for Oregon
My Commission Expires:
STATE OF OREGON )
) ss.
COUNTY OF_____________)
This instrument was acknowledged before me on _____________________, 2000,
by _________________________ as ______________________ of _____________________.
______________________________________
Notary Public for Oregon
My Commission Expires:
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EXHIBIT "A"
LEGAL DESCRIPTION OF THE LAND:
Lots 1, 2, 3, 4, 5, 6, 7 and 8, Block 210, CITY OF PORTLAND, in the City of
Portland, County of Multnomah and State of Oregon.
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EXHIBIT F-2
SUBORDINATION, NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
(Permanent Lender)
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT (this
"AGREEMENT") is made by and between TEACHERS INSURANCE AND ANNUITY ASSOCIATION
OF AMERICA, a New York corporation with offices at 730 Third Avenue, New York,
New York 10017 ("LENDER") and _______________________, a [an] [individual]
__________________ [corporation] [limited liability company] [general
partnership] [limited partnership] [d/b/a/] with its principal place of business
at ("TENANT").
RECITALS:
A. Lender has made or is about to make a loan (together with all
advances and increases, the "LOAN") to _________________________, a [an]
[individual] [corporation] [limited company] [general partnership] [limited
partnership] ("BORROWER").
B. Borrower, as landlord, and Tenant have entered into a lease dated as
amended by amendments dated ________________ (the "LEASE") which leased to
Tenant [Suite No.] [Floor] [Store No.] (the "LEASED SPACE") located in the
Property (defined below).
C. The Loan is or will be secured by the [Open-End] Mortgage, Assignment
of Leases and Rents, Fixture Filing Statement and Security Agreement recorded or
to be recorded in the official records of the County of ____________, State or
Commonwealth of __________ (together with all advances, increases, amendments of
consolidations, the "MORTGAGE") and the Assignment of Leases and Rents recorded
or to be recorded in such official records (together with all amendments or
consolidations, the "ASSIGNMENT"), assigning to Lender the Lease and all rent,
additional rent and other sums payable by Tenant under the Lease (the "RENT").
D. The Mortgage encumbers the real property, improvements and fixtures
located at ________________ in the City of ____________, County of ____________,
State or Commonwealth of ___________________, commonly known as
__________________, and described on EXHIBIT "A" (the "PROPERTY").
IN CONSIDERATION of the mutual agreements contained in this Agreement,
Lender and Tenant agree as follows:
1. The Lease and all of Tenant's rights under the Lease are and will
remain subject and subordinate to the lien of the Mortgage and all of Lender's
rights under the Mortgage and Tenant will not subordinate the Lease to any other
lien against the Property without Lender's prior consent.
2. This Agreement constitutes notice to Tenant of the Mortgage and the
Assignment and, upon receipt of notice from Lender, Tenant will pay the Rent as
and when due
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under the Lease to Lender and the payments will be credited against the Rent due
under the Lease.
3. Tenant does not have and will not acquire any right or option to
purchase any portion of or interest in the Property.
4. Tenant and Lender agree that if Lender exercises its remedies under
the Mortgage or the Assignment and if Tenant is not then in default under this
Agreement and if Tenant is not then in default beyond any applicable grace and
cure periods under the Lease:
(a) Lender will not name Tenant as a party to any judicial or
non-judicial foreclosure or other proceeding to enforce the Mortgage unless
joinder is required under applicable law but in such case Lender will not seek
affirmative relief against Tenant, the Lease will not be terminated and Tenant's
possession of the Leased Space will not be disturbed;
(b) If Lender or any other entity (a "SUCCESSOR LANDLORD")
acquires the Property through foreclosure, by other proceeding to enforce the
Mortgage or by deed-in-lieu of foreclosure (a "FORECLOSURE"), Tenant's
possession of the Leased Space will not be disturbed and the Lease will continue
in full force and effect between Successor Landlord and Tenant; and
(c) If, notwithstanding the foregoing, the Lease is terminated as
a result of a Foreclosure, a lease between Successor Landlord and Tenant will be
deemed created, with no further instrument required, on the same terms as the
Lease except that the term of the replacement lease will be the then unexpired
term of the Lease. Successor Landlord and Tenant will execute a replacement
lease at the request of either.
5. Upon Foreclosure, Tenant will recognize and attorn to Successor
Landlord as the landlord under the Lease for the balance of the term. Tenant's
attornment will be self-operative with no further instrument required to
effectuate the attornment except that at Successor Landlord's request, Tenant
will execute instruments reasonably satisfactory to Successor Landlord
confirming the attornment.
6. Successor Landlord will not be:
(a) liable for any act or omission of any prior landlord under
the Lease occurring before the date of the Foreclosure except for repair and
maintenance obligations of a continuing nature imposed on the landlord under the
Lease;
(b) required to credit Tenant with any Rent paid more than one
month in advance or for any security deposit unless such Rent or security
deposit has been received by Successor Landlord;
(c) bound by any amendment, renewal or extension of the Lease
that is inconsistent with the terms of this Agreement or is not in writing and
signed both by Tenant and landlord;
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(d) bound by any reduction of the Rent unless the reduction is in
connection with an extension or renewal of the Lease at prevailing market terms
or was made with Lender's prior consent;
(e) bound by any reduction of the term(1) of the Lease or any
termination, cancellation or surrender of the Lease unless the reduction,
termination, cancellation or surrender occurred during the last 6 months of the
term or was made with Lender's prior consent;
(f) bound by any amendment, renewal or extension of the Lease
entered into without Lender's prior consent if the Leased Space represents 50%
or more of the net rentable area of the building in which the Leased Space is
located;
(g) [INCLUDE ONLY FOR SHOPPING CENTER LEASES] bound by any
amendment, renewal or extension of the Lease entered into without Lender's prior
consent, if Tenant is a major department store or anchor tenant;
(h) subject to any credits, offsets, claims, counterclaims or
defenses that Tenant may have that arose prior to the date of the Foreclosure or
liable for any damages Tenant may suffer as a result of any misrepresentation,
breach of warranty or any act of or failure to act by any party other than
Successor Landlord;
(i) bound by any obligation to make improvements to the Property,
including the Leased Space, to make any payment or give any credit or allowance
to Tenant provided for in the Lease or to pay any leasing commissions arising
out of the Lease, except that Successor Landlord will be:
(i) bound by any such obligations provided for in the
Lender-approved form lease;
(ii) bound by any such obligations if the overall economic
terms of the Lease (including the economic terms of any
renewal options) represented market terms for similar
space in properties comparable to the Property when the
Lease was executed; and
(iii) bound to comply with the casualty and condemnation
restoration provisions included in the Lease provided
that Successor Landlord receives the insurance or
condemnation proceeds;
or
--------
(1) For purposes of this subparagraph "the term of the Lease" includes any
renewal term after the right to renew has been exercised.
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(j) liable for obligations under the Lease with respect to any
off-site property or facilities for the use of Tenant (such as off-site leased
space or parking) unless Successor Landlord acquires in the Foreclosure the
right, title or interest to the off-site property.
7. Lender will have the right, but not the obligation, to cure any
default by Borrower, as landlord, under the Lease. Tenant will notify Lender of
any default that would entitle Tenant to terminate the Lease or abate the Rent
and any notice of termination or abatement will not be effective unless Tenant
has so notified Lender of the default and Lender has had a 30-day cure period
(or such longer period as may be necessary if the default is not susceptible to
cure within 30 days) commencing on the latest to occur of the date on which (i)
the cure period under the Lease expires; (ii) Lender receives the notice
required by this paragraph; and (iii) Successor Landlord obtains possession of
the Property if the default is not susceptible to cure without possession.
8. All notices, requests or consents required or permitted to be given
under this Agreement must be in writing and sent by certified mail, return
receipt requested or by nationally recognized overnight delivery service
providing evidence of the date of delivery, with all charges prepaid, addressed
to the appropriate party at the address set forth above.
9. Any claim by Tenant against Successor Landlord under the Lease or
this Agreement will be satisfied solely out of Successor Landlord's interest in
the Property and Tenant will not seek recovery against or out of any other
assets of Successor Landlord. Successor Landlord will have no liability or
responsibility for any obligations under the Lease that arise subsequent to any
transfer of the Property by Successor Landlord.
10. This Agreement is governed by and will be construed in accordance
with the laws of the state or commonwealth in which the Property is located.
11. Lender and Tenant waive trial by jury in any proceeding brought by,
or counterclaim asserted by, Lender or Tenant relating to this Agreement.
12. If there is a conflict between the terms of the Lease and this
Agreement, the terms of this Agreement will prevail as between Successor
Landlord and Tenant.
13. This Agreement binds and inures to the benefit of Lender and Tenant
and their respective successors, assigns, heirs, administrators, executors,
agents and representatives.
14. This Agreement contains the entire agreement between Lender and
Tenant with respect to the subject matter of this Agreement, may be executed in
counterparts that together constitute a single document and may be amended only
by a writing signed by Lender and Tenant.
15. [INCLUDE ONLY IN SNDA'S SIGNED POST-CLOSING] Tenant certifies that:
the Lease represents the entire agreement between the landlord under the Lease
and Tenant regarding the Leased Space; the Lease is in full force and effect;
neither party is in default under the Lease beyond any applicable grace and cure
periods and no event has occurred
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which with the giving of notice or passage of time would constitute a default
under the Lease; Tenant has entered into occupancy and is open and conducting
business in the Leased Space; and all conditions to be performed to date by the
Landlord under the Lease have been satisfied.
IN WITNESS WHEREOF, Lender and Tenant have executed and delivered this
Agreement as of ____________________, 199__.
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA, a New
York corporation
By: ____________________________
Name: ____________________________
Title: ____________________________
Insert Name of Tenant
------------------------------------,
a [an] [individual] ___________ [corporation]
[limited company] [general partnership]
[limited partnership [d/b/a/_________]
By: ____________________________
Name: ____________________________
Title: ____________________________
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ACKNOWLEDGMENT
State of _______________ )
) ss.
County of _____________ )
On this ______ day of ______________, 199__, before me, _______________,
the undersigned officer, personally appeared, who acknowledged himself to be the
_____________________ of _______________________, a corporation, and that he, as
such _____________________ being authorized so to do, executed the foregoing
instrument for the purposes therein contained, by signing the name of the
corporation by himself as _____________.
In witness whereof, I hereunto set my hand and official seal.
----------------------------------
----------------------------------
Title of Officer
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EXHIBIT A
PROPERTY DESCRIPTION
Page 7
<PAGE> 69
EXHIBIT G
STATEMENT OF TENANT IN RE: LEASE
[Tenant's Letterhead]
Date _________________
Teacher's Insurance and Annuity
Association of America
730 Third Avenue
New York, New York 10017
Attn: _________________
RE: TIAA Appl. #
TIAA Mtge. #
Name of Project
Address (Including zip code)
Tenant's Floor and Suite #
Ladies and Gentlemen:
It is our understanding that you have committed to place a mortgage upon
the subject premises and as a condition precedent thereof have required this
certification of the undersigned.
The undersigned, as lessee, under that certain lease dated
_________________, made with ____________________, as lessor, hereby ratifies
said lease and certifies that:
1. the "Commencement Date" of said lease is ________________; and
2. the undersigned is presently solvent and free from
reorganization and/or bankruptcy and is in occupancy, open, and
conducting business with the public in the premises; and
3. the operation and use of the premises do not involve the
generation, treatment, storage, disposal or release of a
hazardous substance or a solid waste into the environment other
than to the extent necessary to conduct its ordinary course of
business in the premises and in accordance with all applicable
environmental laws, and that the premises are being operated in
accordance with all applicable environmental laws, zoning
ordinances and building codes; and
4. the current base rental payable pursuant to the terms of said
lease is $____________ per annum; and further, additional rental
pursuant to said lease is payable as follows:
__________________________; and
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5. said lease is in full force and effect and has not been
assigned, modified, supplemented or amended in any way (except
by agreement(s) dated _________________), and neither party
thereto is in default thereunder; and
6. the lease described above represents the entire agreement
between the parties as to the leasing of the premises; and
7. the term of said lease expires on _____________________; and
8. all conditions under said lease to be performed by the lessor
have been satisfied, including, without limitation, all
co-tenancy requirements thereunder, if any; and
9. all required contributions by lessor to lessee on account of
lessee's improvements have been received; and
10. on this date there are no existing defenses or offsets, claims
or counterclaims which the undersigned has against the
enforcement of said lease by the lessor; and
11. no rental has been paid in advance and no security (except the
security deposit in the amount of $_____________) has been
deposited with lessor; and
12. lessee's floor area is __________ square feet; and
13. the most recent payment of current basic rental was for the
payment due on _________________, 199___, and all basic rental
and additional rental payable pursuant to the terms of the lease
have been paid up to said date; and
14. the undersigned acknowledges notice that lessor's interest under
the lease and the rent and all other sums due thereunder will be
assigned to you as part of the security for a mortgage loan by
you to lessor. In the event that Teachers Insurance and Annuity
Association of America, as lender, notifies the undersigned of a
default under the mortgage and demands that the undersigned pay
its rent and all other sums due under the lease to lender,
lessee agrees that it shall pay its rent and all such other sums
to lender.
Very truly yours,
--------------------------------
(Lessee)
By:
-----------------------
Its:
-------------------
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EXHIBIT H
ADDENDUM
This Addendum is an integral part of the attached Lease Agreement
between Fox Tower L.L.C., an Oregon limited liability company ("LANDLORD") and
WebTrends Corporation, an Oregon Corporation ("TENANT"). In the event of any
conflict between the terms of this Addendum and the terms of the foregoing Lease
Agreement, the terms of the Addendum shall control.
1. Parking. Tenant shall have the right to monthly parking in the
Building parking garage on a ratio of one (1) stall per 1,250 rentable square
feet of area within its Premises. All parking rights shall be unreserved except
Tenant shall be provided five (5) reserved parking stalls in the Building
parking garage on the "reserved parking" floor. Tenant shall receive such rights
in accordance with the following schedule:
(a) upon opening of the Building parking garage and not later
than the 5th Floor Commencement Date, right to unreserved monthly parking for
twenty-five (25) automobiles and five (5) reserved parking stalls on the
"reserved parking" floor;
(b) right to unreserved monthly parking for the balance of
Tenant's allotment on the 6th Floor Commencement Date; provided, however that
Landlord may, upon thirty (30) days' prior written notice to Tenant, terminate
Tenant's right to unreserved monthly parking for fifteen of such automobiles in
which event Tenant shall receive such rights on the 15th Floor Commencement
Date.
Tenant shall be required to pay for such parking rights utilized by Tenant at
the scheduled rates fixed by Landlord from time to time. Tenant shall faithfully
observe and comply with such rules and regulations regarding the Building
parking garage as Landlord may from time to time adopt.
2. Conference Facility. Tenant shall have the right to use in common
with others the Building conference facility with seating for approximately 30
people at no charge (other than Landlord's charge for cleaning). Tenant shall
faithfully observe and comply with such rules and regulations regarding the
conference facility as Landlord may from time to time adopt.
3. Exercise Facility. Tenant shall have the right to use in common with
others the Building exercise facility at no additional charge. Tenant shall
faithfully observe and comply with such rules and regulations regarding the
exercise facility as Landlord may from time to time adopt.
4. Access/Security. Tenant shall have access to the Premises and
Building parking garage 24 hours per day, 7 days per week, 52 weeks per year
(subject to the Landlord's reasonable security requirements). Access to the
building after hours and on weekends is controlled by a computer access system.
Subject to causes beyond Landlord's reasonable control, Tenant shall have
continual access between the 5th and 6th floors of the Building through the
stairway(s) in the Building core which shall be secured and controlled by a card
key access system at Tenant's expense and in compliance with Building security
system. Access to Tenant's premises is limited to Tenant's own employees and
bonded and insured janitorial and maintenance personnel. Additional electronic
locking systems maybe installed at Tenants sole cost and expense.
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5. Bike Storage Area. Tenant shall have the right to use in common with
others the Building bike storage area.
6. After Hours HVAC Charges. After hours HVAC charges are estimated to
be $18.00 per floor per hours. Actual charges may vary. Tenant shall pay to
Landlord a reasonable charge for such service as determined by Landlord not to
materially exceed the average charge for such service in Class A high rise
office buildings in the Portland, Oregon central business district.
7. Options to Renew. Subject to Louisiana Pacific Corporation's
expansion rights pursuant to a written agreement executed before the date of
this Lease, Tenant shall have the options to renew this Lease, as provided
below, so long as this Lease is not in default at the time the option is
exercised and at the time the renewal term is to commence. As to the 5th and 6th
floor, the renewal term will be one (1) two (2) year term commencing on the day
following expiration of the original term. As to the 15th floor, the renewal
terms will be one (1) five (5) year term commencing on the day following
expiration of the original term or any renewal term and one (1) one (1) year
term following expiration of the original term or any renewal term. The other
terms and conditions of this Lease will remain the same during the renewal term,
except that the Base Rent shall be as provided below and Tenant will no longer
have the option to renew this Lease that has been exercised. Exercise of the
renewal options shall be by notice given at least 270 days prior to the
expiration of the original term as to the 5th and 6th floors and at least 270
days prior to the expiration of the preceding original or renewal term as to the
15th floor. Tenant's notice of exercise with respect to the 15th floor shall
state whether Tenant is exercising its option to renew for one (1) year or five
(5) years. During the renewal terms, the Base Rent for the 5th and 6th floors
shall be the fair market rental rate for the 5th and 6th floors and the Base
Rent for the 15th floor shall be ninety-five percent (95%) of the fair market
rental value for the 15th floor, provided that the Base Rent during the renewal
term will not in any event be less than the Base Rent during the last month of
the preceding original or renewal term. After exercise of Tenant's option to
renew, the parties shall discuss and attempt to determine the Base Rent to be
paid during the renewal term by mutual agreement. If the parties are unable to
reach agreement on Base Rent at least 210 days prior to the commencement of the
renewal term, the Base Rent shall be determined by arbitration. If arbitration
is required, the parties shall select an independent real estate broker having
at least ten (10) years experience with respect to the leasing of commercial
office space in the Portland, Oregon central business district. If they cannot
agree, the presiding or senior judge of the Multnomah County, Oregon Circuit
Court shall select the arbitrator. The arbitrator shall be instructed to
determine the fair market rental value of the Premises for the period in
question. If the arbitrator does not reach a decision prior to commencement of
the renewal term, Base Rent shall continue to be payable in the amount
previously in effect, and retroactive adjustment shall be made when the
arbitrator reaches a decision. The arbitration shall be conducted according to
the procedures of ORS 32.210, and the award shall have the effect provided
therein.
8. Right of First Refusal. So long as Tenant is not in default under
this Lease, Tenant shall have a subordinate right of first refusal to lease any
vacant space on the low-rise portion of the Building (floor 4-14). Tenant's
right shall be subordinate to the right of Louisiana Pacific Corporation
pursuant to a written agreement executed before the date of this Lease. Tenant
acknowledges that Landlord is currently in lease negotiations with a third party
telecommunications company for the 4th floor. This lease shall be exempt from
Tenant's right of first refusal. If Landlord receives an offer which is
acceptable to Landlord from a third party to lease space in the low-rise portion
of the building and Louisiana Pacific Corporation's fails to exercise its prior
right to lease
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such space, Landlord shall notify Tenant of the rent and other terms and
conditions of such offer. Tenant shall have five (5) business days following
such notice in which to agree to lease all of such space at the rent and on the
other terms and conditions set forth in such notice. If Tenant does not elect to
lease all of such space at the rent and on the other terms and conditions
contained in said notice, Landlord may lease such space to such third party at
the rent and other terms and conditions contained in such notice. However, if
the lease to the third party on such terms is not executed, Tenant's right of
first refusal (subordinate to Louisiana Pacific Corporation's right) shall
remain in effect.
9. Right of First Offer. So long as Tenant is not in default under this
lease, Tenant shall have a right of first offer on the sixteenth (16th) floor of
the Building. If such space becomes available, Landlord shall notify Tenant of
the rent and other terms and conditions as Landlord will later offer such space
on the open market. Tenant shall have ten (10) business days after such notice
to elect to accept such offer by written notice to Landlord. If Tenant does not
elect to lease such space at the rent and other terms and conditions contained
in the notice, Landlord shall be free to place the space on the open market and
lease said space to a third party tenant.
10. Back Up Generator. Landlord shall cause a backup generator(s) to be
installed in the Building. Tenant shall be permitted to connect to said backup
generator subject to Landlord's and the operator of such generators' prior
written approval of Tenant's electrical capacity requirements and Tenant's plans
for connection. Tenant shall advise Landlord of Tenant's electrical capacity
requirements not later than July 15, 2000. In the event Tenant connects to said
backup generator, Tenant shall pay to the operator of such generator a
reasonable charge for such service as determined by such operator. If Tenant is
not permitted to connect to said backup generator or the generator is inadequate
for Tenant 's requirements, Tenant shall be permitted to install, at Tenant's
expense, in the Building parking garage, a backup generator for Tenant's use
only. In the event of any change in Tenant's requirements, Landlord and the
operator of said backup generator shall be given a reasonable opportunity to
meet such requirements. Tenant shall obtain, at its expense, all governmental
permits and approvals required for such installation. Landlord shall execute
applications for such permits or approvals. The plans and specifications for
such backup generator, its location and manner of installation shall be subject
to Landlord's prior written approval, which shall not be unreasonably withheld.
In the event of such installation, Tenant's right to unreserved monthly parking
shall be reduced by the number of spaces occupied by such backup generator.
Tenant shall, at its expense, operate, repair and maintain such backup
generator.
11. Tenant's Fiber Link. Landlord shall reasonably cooperate with Tenant
to enable Tenant to efficiently install, at Tenant's expense, a wireless and/or
cable fiber link between the Premise in the Building and Tenant's other office
premises. Such cooperation shall include execution of any applications to
governmental entities for permits and approvals. The plans and specifications
for any such installations, its location and its manner of installation shall be
subject to Landlord's prior written approval, which shall not be unreasonably
withheld. Tenant shall, at its expense, operate, repair and maintain all such
installation. All such installations shall be subject to Landlord's reasonable
rules and regulations for such installations.
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EXHIBIT I
TENANT'S PROPERTY
1. All owned WebTrends communication equipment; to include personal
computers, printers, servers, telephone switches, and other peripherals.
2. All modular and free standing office furnishings.
3. All other equipment purchased and installed by WebTrends, used to
conduct day-to-day business activities.
4. All office accessories; paintings, artwork, and similar property.
5. All video projection units, VCRs, and similar audio and video
equipment.
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FOX TOWER, L.L.C.
LEASE AGREEMENT
INDEX
<TABLE>
<S> <C> <C> <C>
SECTION 1. DEMISE AND RENT............................................................... 1
1.1 Demise ....................................................................... 1
1.2 Premises...................................................................... 1
1.3 Commencement and Expiration Dates............................................. 1
1.4 Rent ......................................................................... 1
1.5 Late Charge................................................................... 2
1.6 Confidentiality............................................................... 3
SECTION 2. USE........................................................................... 3
2.1 Generally..................................................................... 3
2.2 ADA Law Compliance............................................................ 3
2.3 Environmental Law Compliance.................................................. 4
2.4 Indemnity Regarding Legal Violations.......................................... 5
SECTION 3. TENANT'S ACCEPTANCE AND MAINTENANCE OF PREMISES............................... 5
SECTION 4. OPERATING EXPENSES............................................................ 6
4.1 Operating Expenses............................................................ 6
4.3 Taxes ........................................................................ 8
SECTION 5. PAYMENT OF OPERATING EXPENSES................................................. 8
5.1 Operating Year................................................................ 8
5.2 Tenant's Pro Rata Share....................................................... 9
5.3 Written Statement of Estimate................................................. 9
5.4 Final Written Statement....................................................... 10
5.5 Tenant Examination............................................................ 10
5.6 Disputes...................................................................... 10
5.7 Payment....................................................................... 11
SECTION 6. SECURITY DEPOSIT.............................................................. 11
SECTION 7. SUBORDINATION, NOTICE TO SUPERIOR LESSORS AND MORTGAGEES...................... 11
7.1 Subordination................................................................. 11
7.2 Notice ....................................................................... 12
7.3 Attornment.................................................................... 12
</TABLE>
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<TABLE>
<S> <C> <C> <C>
SECTION 8. QUIET ENJOYMENT............................................................... 13
SECTION 9. ASSIGNMENT AND SUBLETTING..................................................... 13
9.1 Generally..................................................................... 14
9.2 ....................................................................... 14
9.3 ....................................................................... 14
9.4 Conditions of Landlord's Consent.............................................. 14
SECTION 10. INSURANCE..................................................................... 15
10.1 Waiver of Right of Recovery................................................... 15
10.2 Public Liability Insurance.................................................... 15
10.3 Acceptable Insurance Companies................................................ 16
10.4 Increase in Coverage.......................................................... 16
SECTION 11. RULES AND REGULATIONS......................................................... 16
SECTION 12. ALTERATIONS................................................................... 16
12.1 Requirements.................................................................. 17
12.2 Indemnification of Landlord................................................... 17
SECTION 13. LANDLORD'S AND TENANT'S PROPERTY.............................................. 18
13.1 Landlord's Property........................................................... 18
13.2 Tenant's Property............................................................. 18
13.3 Abandonment................................................................... 18
SECTION 14. SERVICES AND UTILITIES........................................................ 18
14.1 Building Maintenance.......................................................... 18
14.2 Utilities..................................................................... 19
14.3 Excess Usage.................................................................. 19
14.4 Disclaimer.................................................................... 20
14.5 Use of Common Area and Facilities............................................. 20
14.6 Signage....................................................................... 20
SECTION 15. ACCESS AND NAME............................................................... 21
SECTION 16. NOTICE OF OCCURRENCES......................................................... 22
SECTION 17. NONLIABILITY AND INDEMNIFICATION.............................................. 22
17.1 Waiver ....................................................................... 22
17.2 Indemnification............................................................... 22
17.3 Duty to Defend................................................................ 23
SECTION 18. DAMAGE OR DESTRUCTION......................................................... 23
</TABLE>
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<PAGE> 77
<TABLE>
<S> <C> <C> <C>
18.1 Casualty...................................................................... 23
18.2 Condemnation.................................................................. 23
SECTION 19 SURRENDER AND HOLDING OVER.................................................... 24
19.1 General ...................................................................... 24
19.2 Surrender..................................................................... 24
19.3 Holding Over with Consent..................................................... 24
19.4 Holding Over Without Consent.................................................. 25
SECTION 20. EVENTS OF DEFAULT............................................................. 25
20.1 Events of Default............................................................. 25
20.2 Limitation of Tenant Right to Notice.......................................... 26
SECTION 21. REMEDIES UPON DEFAULT......................................................... 26
21.1 Remedies...................................................................... 26
21.2 Cumulative Remedies........................................................... 27
21.3 Termination................................................................... 28
21.4 Interest on Damages........................................................... 28
21.5 Default by Landlord........................................................... 28
SECTION 22. SERVICES IN THE EVENT OF DEFAULT.............................................. 28
SECTION 25. BROKER........................................................................ 29
SECTION 26. NOTICES....................................................................... 29
SECTION 27. ESTOPPEL CERTIFICATES......................................................... 30
SECTION 28. MEMORANDUM OF LEASE........................................................... 31
SECTION 29. RELOCATION OF PREMISES........................................................ 31
SECTION 30. ADJUSTMENT OF COMMENCEMENT AND EXPIRATION DATES............................... 31
30.1 Commencement Date............................................................. 31
30.2 Tenant Obligations............................................................ 31
30.3 Expiration Date............................................................... 32
30.4 Early Occupancy............................................................... 32
SECTION 31. MISCELLANEOUS................................................................. 32
31.1 Merger ....................................................................... 32
31.2 Modifications................................................................. 32
31.3 Successors and Assigns........................................................ 32
31.4 Nonrecourse Lease............................................................. 32
</TABLE>
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<TABLE>
<S> <C> <C> <C>
31.5 Force Majeure................................................................. 33
31.6 Definitions................................................................... 33
31.7 Effect of Expiration.......................................................... 34
31.8 Modifications for Superior Mortgagee.......................................... 35
31.9 Excavation.................................................................... 35
31.10 Union Contracts............................................................... 35
31.11 Prorations.................................................................... 35
31.12 Governing Law................................................................. 35
31.13 Light Air and View............................................................ 35
31.14 Tenant Representations........................................................ 35
31.15 Defined Terms................................................................. 36
31.16 Counterparts.................................................................. 36
31.17 Costs and Attorney Fees....................................................... 36
31.17.1 No Suit or Action Filed.............................................. 36
31.17.2 Arbitration or Mediation; Trial and Appeal........................... 36
31.17.3 Definitions.......................................................... 37
31.18 Consent ...................................................................... 37
</TABLE>
EXHIBIT A: Legal Description for Land
EXHIBIT B: Floor Plan for the Building
EXHIBIT C: Work Agreement
EXHIBIT D: Schematic Space Plan for the Premises
EXHIBIT E: Rules and Regulations
EXHIBIT F-1: Subordination, Non-Disturbance and Attornment Agreement
(Construction Lender)
EXHIBIT F-2 Subordination, Non-Disturbance and Attornment Agreement (Permanent
Lender)
EXHIBIT G: Statement of Tenant in Re: Lease
EXHIBIT H: Addendum
EXHIBIT I: Tenant's Property
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