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Exhibit 10.11
Stafford Distribution Center
Industrial Net Lease
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LANDLORD: Stafford Limited Partnership
TENANT: HomeGrocer.com, Inc.,
a Washington corporation
PREMISES ADDRESS: Suite 310
9445 S.W. Ridder Road
Wilsonville, OR 97070
PREMISES AREA: 83,462 Square Feet
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City of Wilsonville
Washington County
Oregon
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TABLE OF CONTENTS
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Section Page
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1. BASIC LEASE TERMS..................................................................... 1
2. PREMISES.............................................................................. 3
3. TERM.................................................................................. 3
4. RENT.................................................................................. 4
4.1 Base Rent........................................................................ 4
4.2 Rent Adjustment.................................................................. 4
4.3 Expenses......................................................................... 5
(1) Expenses Defined............................................................ 6
(2) Exclusions.................................................................. 7
(3) Tenant's Protest of Tax Assessments......................................... 8
(4) Annual Estimate of Expenses; Tenant's Share................................. 8
(5) Monthly Payment of Expenses; Annual Recap................................... 8
4.4 Rent Without Offset.............................................................. 9
4.5 Late Charge...................................................................... 9
5. SECURITY DEPOSITS..................................................................... 10
5.1 Prepaid Rent..................................................................... 10
5.2 Letters of Credit................................................................ 10
6. CONDITION AND USE OF PREMISES AND PROJECT FACILITIES.................................. 11
7. SIGNS; ALARMS......................................................................... 12
8. PERSONAL PROPERTY TAXES............................................................... 13
9. PARKING............................................................................... 13
10. UTILITIES............................................................................. 13
11. MAINTENANCE........................................................................... 13
12. ALTERATIONS........................................................................... 14
13. RELEASE AND INDEMNITY................................................................. 15
14. TENANT'S RIGHT TO AUDIT............................................................... 16
14.1 Audit Threshold.................................................................. 16
14.2 Copy of Audit.................................................................... 16
14.3 Tenant Not in Default............................................................ 16
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14.4 Limits for Subtenants and Assignees........................................... 16
15. INSURANCE AND WAIVER OF SUBROGATION................................................. 16
15.1 Liability Insurance........................................................... 16
15.2 Property Insurance............................................................ 17
15.3 Business Interruption Insurance............................................... 17
15.4 Insurance Policies............................................................ 17
15.5 Waiver of Subrogation......................................................... 18
16. DESTRUCTION......................................................................... 18
17. CONDEMNATION........................................................................ 18
17.1 Definitions................................................................... 18
17.2 Obligations to be Governed by Lease........................................... 19
17.3 Total or Partial Taking....................................................... 19
17.4 Award......................................................................... 19
18. ASSIGNMENT OR SUBLEASE.............................................................. 19
19. DEFAULT............................................................................. 21
20. LANDLORD'S REMEDIES................................................................. 22
20.1 Remedies...................................................................... 22
20.2 Performance by Landlord of Tenant's Obligations............................... 22
21. LANDLORD'S DEFAULT.................................................................. 23
22. ENTRY ON PREMISES................................................................... 23
23. SUBORDINATION; ESTOPPEL CERTIFICATES................................................ 24
23.1 Subordination/Nondisturbance.................................................. 24
23.2 Estoppel Certificates......................................................... 24
23.3 Remedy........................................................................ 25
24. NOTICE.............................................................................. 25
25. WAIVER.............................................................................. 25
26. SURRENDER OF PREMISES; HOLDING OVER................................................. 26
26.1 Surrender..................................................................... 26
26.2 Holding Over.................................................................. 26
26.3 Failure to Surrender.......................................................... 27
27. MORTGAGEE PROTECTION................................................................ 27
28. LIMITATION OF LIABILITY............................................................. 27
29. HAZARDOUS SUBSTANCES................................................................ 27
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29.1 Landlord's Warranty............................................................... 27
29.2 Landlord's Indemnity............................................................. 28
29.3 Tenant's Use of Hazardous Substances............................................. 28
29.4 Tenant's Indemnity............................................................... 28
29.5 Landlord's Compliance............................................................ 29
30. MISCELLANEOUS PROVISIONS................................................................ 29
30.1 Time of Essence.................................................................. 29
30.2 Successor........................................................................ 29
30.3 Landlord's Consent............................................................... 29
30.4 Commissions...................................................................... 29
30.5 Reciprocal Covenant on Notification of ADA Violations............................ 29
30.6 Attorney Fees.................................................................... 30
30.7 Landlord's Successors............................................................ 30
30.8 Interpretation................................................................... 30
30.9 Execution and Liability.......................................................... 30
30.10 Construction of Lease Provisions................................................. 30
30.11 Force Majeure; Building Components............................................... 30
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EXHIBIT A THE PREMISES
EXHIBIT B THE PROJECT
EXHIBIT C SIGN REGULATIONS
EXHIBIT D-1 INITIAL TENANT PARKING PLAN
EXHIBIT D-2 MODIFIED TENANT PARKING PLAN
EXHIBIT E EMISSIONS; STORAGE, USE AND DISPOSAL OF WASTE
EXHIBIT F FORM OF LETTER OF CREDIT
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NET LEASE
1. BASIC LEASE TERMS.
1.1 Date of Lease: April 18, 2000
1.2 Tenant: HomeGrocer.com, Inc., a Washington
corporation
Address (Leased Premises): 9445 S.W. Ridder Road, Suite 310
Wilsonville, OR 97070
Telephone: (425) 201-7500
Facsimile: (425) 201-7875
Addresses (For Notices): 10230 N.E. Points Drive Kirkland,
WA 98033
Attention: Vice President
Operations
10230 N.E. Points Drive Kirkland,
WA 98033
Attention: Legal Department
1.3 Landlord: Stafford Limited Partnership, an
Oregon limited partnership
in care of its managing agent,
Specht Properties, Inc.
15400 SW Millikan Way
Beaverton, OR 97006
1.4 Tenant's Use of Premises: Warehouse, distribution, office and
other legal uses
1.5 Premises Area: 83,462 Rentable Square Feet
1.6 Project Area: 247,984 Rentable Square Feet
1.7 Premises Percent of Project: 33.66%
1.8 Initial Term of Lease: 121 full calendar months, beginning
with the Commencement Date
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1.9 Base Monthly Rent: $30,847.84
Due Date of First Payment: Upon Execution of Lease
by Landlord and Tenant
(to be applied to the
rent due for the second
full calendar month of
this Lease)
Default & Landlord Advance Interest Rate: 12% per annum
1.10 Rent Adjustment (Initial One):
(1) Cost of Living: Intentionally Omitted
(2) Step Increase: The Base Rent increase
adjustment provisions of
Section 4.2(1) apply as
follows:
Effective Date of Increase New Base Monthly Rent
April 1, 2003 $33,251.55
April 1, 2006 $35,872.25
April 1, 2009 $38,726.65
(3) Prepaid toward Last Month's Rent: $38,726.65 (payable upon
execution of Lease by
Landlord and Tenant)
(4) Non-refundable cleaning fee: $0
(5) Broker(s): Colliers International;
Hadley Stevens &
Marandas; Macadam Forbes;
Specht Properties, Inc.
(6) Brokerage Commission Payable by: Landlord
(7) Guarantors: None
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2. PREMISES.
2.1 Landlord hereby leases to Tenant and Tenant leases from Landlord,
those certain Premises described in Section 1 and in Exhibit A
attached hereto (the "Premises"), located in the Project described on
Exhibit B (the "Project"), upon all of the conditions set forth
herein. Tenant's percentage of the Project ("Premises Percent of
Project") as set forth in Section 1.7 shall be adjusted from time to
time if the size of the Project or the Premises is changed by
subsequent development of additional property or sale of a portion of
the Project.
2.2 Tenant shall have the right, during the 60-day period immediately
following the Date of Lease and at its sole expense, to have
recalculated the number of rentable square feet included in the
Premises and/or the Project. If the recalculation demonstrates to
Landlord's reasonable satisfaction that the actual rentable square
feet included in the Premises and/or the Project are materially
different from those set forth in Sections 1.5 and/or 1.6 above, as
applicable, the Premises Percent of Project and all other amounts
payable hereunder by Tenant shall be equitably adjusted. Any such
recalculation by Tenant shall use the NAIOP Area Standard.
3. TERM.
3.1 Subject to the provisions of this Lease, the initial term of this
Lease (the "Initial Term") shall be for the period set forth in
Section 1.8 commencing on the date (the "Commencement Date") that is
the later of April 1, 2000, or the date on which Landlord delivers
exclusive possession of the Premises to Tenant. If the Commencement
Date occurs after April 1, 2000, due to causes other than Landlord's
negligence or willful misconduct, this Lease shall not be void or
voidable; rather, all terms and conditions of this Lease shall remain
in full force and effect; provided, however, that if Landlord has not
delivered exclusive possession of the Premises to Tenant by August 1,
2000, Tenant may act to terminate this Lease by providing Landlord
with notice that if exclusive possession of the Premises has not been
tendered to Tenant within 30 days from the date of such notice, the
Lease will be terminated. If a delay in possession is caused solely by
Tenant's failure to perform any obligation in accordance with this
Lease, the Initial Term shall commence on the date on which the
Commencement Date would have occurred but for such failure by Tenant,
and Tenant shall have no right to terminate this Lease due to such
delay.
3.2 At the expiration of the Initial Term of this Lease, Tenant may extend
this Lease for up to two (2) successive terms of five (5) years each
(the "Extension Terms") by giving Landlord written notice of its
intention to do so at least one year prior to the expiration of the
Term of this Lease then in effect. The Extension Terms shall be upon
all the terms and conditions of this Lease, except for the term and
the amount of Base Monthly Rent. The Base Monthly Rent for the
Extension Terms will be determined as set forth in Section 4.2(2)
below. The word "Term" shall be
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used throughout this Lease to include both the Initial Term and
Extension Terms. The time periods set forth herein for the exercise of
the Extension Terms are of the essence, and the requirements for the
exercise of the Extension Terms will be strictly construed.
4. RENT.
4.1 Base Rent. Tenant shall pay Landlord the Base Monthly Rent set forth
in Section 1.9 monthly, in advance, on the first day of each and every
calendar month ("Base Monthly Rent") during the Term of this Lease;
provided, (a) Tenant shall pay no Base Monthly Rent for the first full
calendar month of the Initial Term, and (b) the Base Monthly Rent due
for the second full calendar month shall be due and payable upon
execution of this Lease by Landlord and Tenant. If the Commencement
Date occurs on a day other than the first day of a calendar month, the
Base Monthly Rent for that partial calendar month shall be prorated on
a daily basis and shall be due and payable on the Commencement Date.
4.2 Rent Adjustment.
(1) The Base Monthly Rent for the Initial Term shall be increased to
the amounts and at the times set forth in Section 1.10(2).
(2) If Tenant exercises its option to extend the Term pursuant to
Section 3.2, the Base Monthly Rent for the Extension Term(s)
shall be the greater of the Base Monthly Rent in effect during
the final year of the then-expiring Term of this Lease or the
Market Rent as of the end of the then-expiring Term of this
Lease. The Market Rent shall be ninety-five percent (95%) of the
monthly rent then payable under comparable leases for comparable
space and comparable terms by tenants in buildings of comparable
quality in the Wilsonville, Oregon, area. The Market Rent shall
be determined as follows:
(a) At least one hundred eighty (180) days prior to the
commencement of the applicable Extension Term, Landlord
shall provide written notice to Tenant setting forth the
then Market Rent as determined by Landlord (the "Landlord
Market Rent"). If Tenant does not object in writing
delivered to Landlord within five (5) business days after
its receipt of Landlord's notice setting forth the Landlord
Market Rent, the Landlord Market Rent shall be the Base
Monthly Rent for the applicable Extension Term.
(b) If Tenant timely objects to the Landlord Market Rent, the
parties shall have thirty (30) days after Tenant's objection
notice in which to agree on the Market Rent.
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(c) If the parties are unable to agree on the Market Rent within
that 30-day period, then within ten (10) days after the
expiration of that period, each party, at its cost and by
giving notice to the other party, shall appoint a real
estate appraiser, each with an MAI designation and at least
five (5) years of commercial appraisal experience in the
Portland metropolitan area, to appraise and set the Market
Rent. If a party does not appoint an appraiser within ten
(10) days after the other party has given notice of the name
of its appraiser, the single appraiser appointed shall be
the sole appraiser and shall set the Market Rent. If the two
appraisers are appointed by the parties as stated in this
Section, they shall meet promptly and attempt to set the
Market Rent. If they are unable to agree within thirty (30)
days after the second appraiser has been appointed, they
shall attempt to select a third appraiser meeting the
qualifications stated in this Section 4.2(2) within ten (10)
days after the last day the two appraisers are given to set
the Market Rent. If they are unable to agree on the third
appraiser, either of the parties to this Lease, by giving
ten (10) days' notice to the other party, can apply to the
presiding judge of the circuit court for the county where
the Premises are located for the selection of a third
appraiser who meets the qualifications stated in this
Section. Each of the parties shall bear one half of the cost
of appointing the third appraiser and of paying the third
appraiser's fee. The third appraiser, however selected,
shall be a person who has not previously acted in any
substantial capacity for either party.
(d) The third appraiser shall meet with the other two appraisers
appointed by the parties and a majority of them will
determine, not less than thirty (30) days prior to the last
day of the then-expiring Term of this Lease, the Market Rent
for the applicable Extension Term.
4.3 Expenses. The purpose of this Section 4.3 is to ensure that Tenant
bears a share of all Expenses related to the use, operation,
maintenance, repair and insurance of the Project, except depreciation
of the Project, loan repayment (except as in Section 4.3(1) (g)
below), and real estate commissions. Accordingly, beginning with the
Commencement Date, Tenant shall be responsible for and shall pay to
Landlord Tenant's Share (as defined below) of Expenses related to the
Project on or before the first day of each and every month.
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(1) Expenses Defined. The term "Expenses" shall mean all reasonable
and necessary costs and expenses of the use, operation,
maintenance, repair and insurance of the Project, including,
without limitation, the following costs:
(a) All supplies, materials, labor and equipment, used in or
related to the Project;
(b) All utilities, including without limitation, water,
electricity, gas, heating, lighting, sewer, waste disposal,
security, and all charges relating to the Project;
(c) All maintenance, management, janitorial and service
agreements related to the Project;
(d) All legal expenses and accounting costs (excluding legal
costs of negotiating, terminating or extending leases, or
legal costs incurred in proceedings against any tenant other
than Tenant) incurred by Landlord in relation to the
Project;
(e) All insurance premiums and costs, including but not limited
to the premiums and costs of fire, casualty and liability,
rental abatement, and earthquake insurance related to the
Project, and the cost of damage to the common areas of the
Project unless such damage is covered by Landlord's
insurance or would be covered by insurance that Landlord is
required to carry under this Lease;
(f) All maintenance and repair costs relating to the areas
within or around the Project, including without limitation,
sidewalks, landscaping, service areas, driveways, parking
areas, walkways, building exteriors (including painting),
signs and directories, including, for example, costs of
resurfacing and restriping parking areas, repairing (but not
replacing) roofs and walls, and including any assessments
charged or levied by a Tenant's Association, if any;
(g) Amortization (principal and interest) over their useful life
of the cost of capital improvements made to the Project
which may be required by any government authority or which
will improve the operating efficiency of the Project;
(h) All other costs of managing, maintaining, repairing,
operating and insuring the Project, including, for example,
clerical, supervisory and janitorial staff costs;
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(i) The cost of capital improvements (principal and interest),
amortized over their useful life, designed to protect the
health and safety of the tenants in the Building or as
required by any government entity;
(j) "Real Property Taxes," which include all taxes, assessments
(general and special) and other impositions or charges which
may be taxes, charged, levied, assessed or imposed upon or
against all or any portion of or in relation to the Project,
any leasehold estate in the Premises or measured by rent
from the Premises, including any increase caused by the
transfer, sale or encumbrance of the Project or any portion
thereof. "Real Property Taxes" also includes any form of
assessment levy penalty, charge or tax (other than gift,
estate, inheritance, net income or franchise taxes) imposed
by any authority having a direct or indirect power to tax or
charge, including without limitation any city, county,
state, federal or any improvement or other district, whether
such tax is: (1) determined by the area of the Project or
the rent or other sums payable under this Lease; (2) upon or
with respect to any legal or equitable interest of Landlord
in the Project or any part thereof; (3) upon this
transaction or any document to which Tenant is a party
creating a transfer in any interest in the Project; (4) in
lieu of or as a direct substitute in whole or in part of or
in addition to any real property taxes on the Project; (5)
based on any parking spaces or parking facilities provided
in the Project; or (6) in consideration for services, such
as police protection, fire protection, street, sidewalk and
roadway maintenance, refuse removal or other services that
may be provided by any governmental or quasi-governmental
agency from time to time which were formerly provided
without charge or with less charge to property owners or
occupants; and
(k) The cost of Landlord's compliance with Environmental Laws
(as defined below) except to the extent that any such
expense resulted from the fault of Landlord, or was incurred
as the result of condition existing prior to the date of
this Lease or as the result of the act or omission of
another tenant of the Project.
(2) Exclusions. Notwithstanding anything in this Lease to the
contrary, the term "Expenses" shall not include any of the
following costs:
(a) Costs resulting from the willful misconduct of Landlord, its
employees or agents;
(b) Costs for which Landlord is reimbursed by any insurance
carried by Landlord;
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(c) Any costs or expenses relating to any workletter to
construct tenant improvements;
(d) Allowances, concessions, permits, licenses, inspections or
other costs and expenses incurred in completing, fixturing,
renovating or otherwise improving, decorating or
redecorating space for tenants (including Tenant),
prospective tenants or other occupants or prospective
occupants of the Project, or vacant leasable space in the
Project, or constructing or finishing demising walls and
public corridors with respect to any such space whether such
work or alteration is performed for the initial occupancy by
such tenant or occupancy thereafter; and
(e) Costs for which Landlord is reimbursed by others.
(3) Tenant's Protest of Tax Assessments. In any year which Landlord
does not protest the Real Property Tax assessment levied against
the Project Tenant may choose to protest the assessment in
Landlord's name. If Tenant chooses to protest the assessment,
Landlord shall fully cooperate with Tenant's efforts provided
that Tenant pays all costs and expenses necessary to conduct such
protest. In the event either Landlord or Tenant protests such
assessment and a reduction in the Real Property Taxes results,
Tenant shall be entitled to the benefit of such reassessment,
either as an Expense adjustment pursuant to Section 4.3(5) of
this Lease or as a refund if this Lease has expired, if such
reassessment results in an overpayment by Tenant to Landlord of
Tenant's Share of Real Property Taxes.
(4) Annual Estimate of Expenses; Tenant's Share. Prior to the
commencement of each calendar year of the Term of this Lease,
Landlord shall prepare and deliver to Tenant a reasonable
estimate of Expenses for the Project for the coming year.
Tenant's share of all actual Expenses shall be determined by
multiplying the total of all actual Expenses by the Premises
Percent of Project set forth in Section 1.7 (herein "Tenant's
Share"). The estimate of annual Expenses for any year during the
Term of this Lease shall not exceed one hundred ten percent
(110%) of the estimate of annual Expenses for the immediately
preceding calendar year unless Landlord provides Tenant with
reasonable documentation supporting such increase.
(5) Monthly Payment of Expenses; Annual Recap. Tenant shall pay to
Landlord monthly in advance, as additional rent, one-twelfth of
the product achieved by multiplying the then current estimate of
annual Expenses by the Premises Percent of Project set forth in
Section 1.7. Within ninety (90) days following the end of each
calendar year (including the year during which this Lease expires
or is terminated), Landlord shall
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prepare an accounting of actual Expenses incurred during the
prior calendar year. If the amount of additional rent paid by
Tenant as Tenant's Share during the preceding calendar year was
less than the actual amount of Tenant's Share of Expenses,
Landlord shall so notify Tenant and Tenant shall pay to Landlord
the difference between said two amounts within thirty (30) days
of receipt of such notice. Such amount shall be deemed to have
accrued during the prior calendar year and shall be due and
payable from Tenant even though the Term of this Lease may have
expired or this Lease may have been terminated prior to Tenant's
receipt of the notice. If the amount of additional rent paid by
Tenant as Tenant's Share during the preceding calendar year was
greater than the actual amount of Tenant's Share of Expenses,
Landlord shall promptly so notify Tenant and such overpayment
shall be paid to Tenant within one hundred twenty (120) days
after the end of the calendar year. Such amount will be due and
payable from Landlord, even though the Term of this Lease may
have expired or this Lease may have been terminated prior to
Tenant's receipt of the notice. In no event shall such credit be
used to offset or in any way reduce the Base Monthly Rent payable
by Tenant.
4.4 Rent Without Offset. All Base Monthly Rent and additional rent
(hereinafter collectively referred to as "rent") shall be paid by
Tenant to Landlord monthly in advance on the first day of every
calendar month, at the address shown in Section 1.3, or at such other
place as Landlord may designate in writing from time to time. All rent
shall be paid without prior demand or notice and without any deduction
or offset whatsoever except as specifically set forth in this Lease.
All rent shall be paid in lawful currency of the United States of
America. All rent due for any partial month shall be prorated, when
appropriate, at the rate of one-thirtieth (1/30) of the total monthly
rent per day.
4.5 Late Charge. Time is of the essence to the performance of this Lease.
Tenant acknowledges that late payment by Tenant to Landlord of any
rent or other sums due under this Lease will cause Landlord to incur
costs and damages, including but not limited to processing and
accounting charges and late charges that may be imposed on Landlord by
the terms of any encumbrance secured by the Premises, as well as the
loss of the use and time value of money. Landlord and Tenant
specifically agree and acknowledge that the exact amount of such costs
and damages would be difficult or impossible to prove. Tenant agrees
that, if any rent or other sum due from Tenant is not received within
five (5) days from when due, Tenant shall pay to Landlord an
additional sum equal to five percent (5%) of the amount that is due;
provided, however, that such late charges will not be assessed if
Tenant, within five (5) days after notice from Landlord of such
failure to make a timely payment, pays the entire unpaid amount to
Landlord. Landlord will be required to provide Tenant with such notice
of delinquency only once during each calendar year. Landlord and
Tenant hereby agree that they have attempted to estimate the amount of
costs and damages which would result from delay in
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payment, and that the agreed late charge represents a fair and
reasonable estimate of the costs and damages that Landlord will incur
by reason of any such late payment in light of the anticipated or
actual harm which would be caused by such delay, the difficulties of
proof of loss, and the inconvenience or non-feasibility of Landlord
otherwise obtaining an adequate remedy. Additionally, all such
delinquent rent or other sums, plus this late charge, shall bear
interest from the date due at the rate per annum set forth in Section
1.9 above; provided, however, that interest will not be assessed on
delinquent rent and other sums if Tenant, within five (5) days after
notice from Landlord of such delinquent rent or other sum, pays the
entire unpaid amount to Landlord. Landlord will be required to provide
Tenant with such notice of delinquency only once during each calendar
year. Any payments of any kind returned for insufficient funds will be
subject to an additional handling charge of $25.00. If Landlord
employs a collection agency to recover delinquent charges, Tenant
agrees to pay all collection agency fees charged to Landlord in
addition to rent, late charges, interest and other sums payable under
this Lease. Tenant shall pay a charge of $75 to Landlord for
preparation of a demand for delinquent rent.
5. SECURITY DEPOSITS.
5.1 Prepaid Rent. Upon the execution of this Lease, Tenant shall pay to
Landlord the prepaid rent set forth in Section 1.10(3) (herein the
"Prepaid Rent"), and if Tenant is not in default under any provisions
of this Lease, the Prepaid Rent shall be applied toward the Base
Monthly Rent due for the last full month of the Term. The parties
agree that Landlord's obligations with respect to the Prepaid Rent are
not those of a trustee, and Landlord may commingle the Prepaid Rent
with other funds. Landlord shall not be required to pay Tenant
interest on the Prepaid Rent. If Landlord uses or applies all or any
portion of said Prepaid Rent to cure or remedy a breach of or default
by Tenant under this Lease, Landlord shall notify Tenant of such use
or application, and Tenant, within five (5) days after written demand
therefor, shall deposit cash with Landlord in an amount sufficient to
restore the Prepaid Rent to the full extent of the amount set forth in
Section 1.10(3). Tenant's failure to so restore the Prepaid Rent shall
be a default under this Lease. In the event Landlord transfers its
interest in this Lease, Landlord shall transfer the then remaining
amount of the Prepaid Rent to Landlord's successor in interest, and
thereafter Landlord shall have no further liability to Tenant with
respect to such Prepaid Rent. Landlord shall be entitled to
immediately endorse and cash any check tendered as Prepaid Rent;
however, such endorsement and cashing shall not constitute Landlord's
acceptance of this Lease.
5.2 Letters of Credit. Upon the execution of this Lease, Tenant shall
deliver to Landlord one or more letters of credit (the "Letters of
Credit") in the aggregate amount of $409,000 to further secure the
performance of Tenant's obligations under this Lease. The Letters of
Credit will be irrevocable, issued by U.S. Bank National Association,
and in a form substantially similar to the form attached to
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this Lease as Exhibit F. Upon a default by Tenant under this Lease,
Landlord, in its sole discretion and upon notice to Tenant, may draw
upon the full amount of the Letters of Credit and may retain, as
liquidated damages, the entire amount paid under the Letters of
Credit. The Letters of Credit will not expire before and may be drawn
upon by Landlord until a date that is three years after the
Commencement Date of this Lease. Landlord and Tenant agree that it
would be impractical and extremely difficult to estimate the damages
that Landlord may suffer if Tenant defaults on this Lease within the
first three years of the Initial Term, and that Landlord's obtaining
an adequate remedy in the event of such default would be inconvenient
or nonfeasible. Landlord and Tenant agree that the aggregate amount of
the Letters of Credit is a reasonable estimate of the minimum
detriment and harm that Landlord would suffer in the event that Tenant
defaults under this Lease during the first three years of the Initial
Term.
6. CONDITION AND USE OF PREMISES AND PROJECT FACILITIES.
6.1 Tenant shall use the Premises solely for the purposes set forth in
Section 1.4 and for no other purpose without obtaining the prior
written consent of Landlord. Tenant has decided to lease the Premises
based upon Tenant's independent investigations, inquiry, and business
judgment.
6.2 Tenant acknowledges that except as specifically set forth herein,
neither Landlord nor any agent of Landlord has made any representation
or warranty with respect to the Premises or the Project or with
respect to the uses to which the Premises may be put or the
suitability of the Premises or the Project for the conduct of Tenant's
business, nor has Landlord agreed to undertake any modification,
alteration or improvement to the Premises or to the Project, except as
provided in writing in this Lease. Tenant has inspected the Premises
and, except as specifically set forth herein, accepts the same "AS
IS," provided, however, that Landlord hereby represents and warrants
to Tenants as follows:
(1) All structural components of the Premises and the HVAC,
electrical, plumbing, gas, and mechanical systems serving the
Premises are in good condition and repair.
(2) Landlord covenants that Landlord has fee simple title to the
Premises and has full right to make this Lease, and that Tenant
shall have quiet and peaceful possession and enjoyment thereof as
against any adverse claim of Landlord or any other party subject
to the provisions of this Lease. 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 the Premises and only so long as
such interest shall continue with respect to the Premises, 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
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interests, as and when they shall acquire the same, and so long
as they shall retain such interest.
6.3 Tenant acknowledges that Landlord may, from time to time, in its sole
discretion, make such modifications, alterations, deletions or
improvements to the Project as Landlord may deem necessary or
desirable, which do not have a material adverse effect on Tenant's
conduct of its business on the Premises, without compensation or
notice to Tenant.
6.4 Tenant shall promptly comply with all laws, ordinances, orders and
regulations affecting the Premises and the Project, including without
limitation any rules and regulations that may be attached to this
Lease and to any reasonable and non-discriminatory modifications to
those rules and regulations as Landlord may adopt from time to time.
In the event of any conflict between the provisions of this Lease and
the rules and regulations adopted by Landlord, the provisions of this
Lease shall prevail.
6.5 Tenant shall not do or permit anything to be done in or about the
Premises or bring or keep anything in the Premises that will in any
way increase the premiums paid by Landlord on its insurance related to
the Project or which will in any way increase the premiums for fire or
casualty insurance carried by other tenants in the Project. Tenant
will not perform any act or carry on any practice that may injure the
Premises or the Project, be a nuisance or menace to other tenants in
the Project, or in any way interfere with the quiet enjoyment of such
other tenants. Tenant shall not use the Premises for sleeping, washing
clothes, cooking (other than the use by Tenant's employees of
microwave ovens, vending machines, and beverage makers for their
personal consumption) or the preparation, manufacture or mixing of
anything that might emit any objectionable odor, noises, vibrations or
lights onto such other tenants. If sound insulation is required to
muffle noise produced by Tenant on the Premises, Tenant shall, at its
own cost and using a contractor that is signatory to the applicable
collective bargaining agreement, provide all necessary insulation.
Tenant shall not overload any existing parking or service to the
Premises. Pets and/or animals of any type shall not be kept on the
Premises, unless assisting disabled persons.
7. SIGNS; ALARMS. All signing shall comply with reasonable, non-discriminatory
rules and regulations set forth by Landlord as may be modified from time to
time. Current rules and regulations relating to signs are described on
Exhibit C attached hereto. In the event of any conflict between the
provisions of this Lease and Landlord's rules and regulations, the
provisions of this Lease shall prevail. Tenant shall place no window
covering (e.g., shades, blinds, curtains, drapes, screens, or tinting
material), stickers, signs, lettering, banners or advertising or display
material on or near exterior windows or doors if such materials are visible
from the exterior of the Premises, without Landlord's prior written
consent, which may be withheld, conditioned, or delayed in Landlord's sole
discretion. If Landlord denies Tenant's request to place any such items on
or near
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exterior windows or doors, Landlord will identify for Tenant the items, if
any, that would be acceptable to be placed on or near exterior windows or
doors. Similarly, Tenant may not install any alarm boxes, foil protection
tape or other security equipment on the Premises without Landlord's prior
written consent, which may be withheld, conditioned, or delayed in
Landlord's reasonable discretion. Any material violating this provision may
be removed by Landlord without compensation to Tenant.
8. PERSONAL PROPERTY TAXES. Tenant shall pay before delinquency all taxes,
assessments, license fees and public charges levied, assessed or imposed
upon its business operations as well as upon all trade fixtures, leasehold
improvements, merchandise and other personal property in or about the
Premises.
9. PARKING. Landlord hereby grants to Tenant and Tenant's customers,
suppliers, employees and invitees, a non-exclusive privilege to use the
non-exclusive parking areas in the Project for the use of motor vehicles
during the term of this Lease. Landlord reserves the right at any time to
grant similar non-exclusive privileges to other tenants, to promulgate
reasonable and non-discriminatory rules and regulations relating to the use
of such parking areas, including reasonable restrictions on parking by
tenants and employees, to designate specific spaces for the use of any
tenant, to make changes in the parking layout from time to time, and to
establish reasonable time limits on parking. Tenant shall have the
exclusive right to park in the areas identified for exclusive parking on
Exhibits D-1 and D-2, provided that final approval from the City of
Wilsonville for such parking is first obtained. Landlord shall have no
obligation to monitor or control such exclusive parking areas. Other than
in areas identified for overnight parking on Exhibits D-1 and D-2,
overnight parking is prohibited and any vehicle violating this or any other
vehicle regulation adopted by Landlord is subject to removal at the owner's
expense. Landlord will reasonably cooperate with Tenant, at no expense to
Landlord, in Tenant's efforts to obtain approval from the City of
Wilsonville to reconfigure the parking areas as set forth on Exhibits D-1
and/or D-2. Landlord agrees not to change the ingress or egress to or from
the Project in a manner that will materially impact Tenant's operation
unless required to do so by law.
10. UTILITIES. Tenant shall pay for all water, gas, heat, light, power, sewer,
electricity, telephone or other service metered, chargeable or provided to
the Premises. Landlord reserves the right to install separate meters for
any such utility and to charge Tenant for the cost of such installation.
11. MAINTENANCE.
11.1 Landlord shall maintain, in good condition, the structural parts of
the Premises, which shall include only the foundations, bearing and
exterior walls (excluding glass), sub-flooring and roof (excluding
skylights and smoke hatches), the unexposed electrical, plumbing and
sewerage systems, including without limitation, those portions of the
systems lying outside the Premises, exterior doors (excluding glass),
window frames, and gutters and downspouts on the Building. The cost of
all such maintenance (with the exception of amounts incurred by
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Landlord to remedy latent structural defects in the Premises) shall be
considered "Expenses" for purposes of Section 4.3. Except as provided
above, Tenant shall repair and maintain the Premises in good
condition, including without limitation, maintaining, repairing and,
if necessary, replacing all walls, floors, ceilings, interior doors,
exterior and interior windows and plumbing and electrical fixtures as
well as damage caused by Tenant, its agents, employees or invitees.
11.2 A heating, ventilating and air conditioning maintenance contract is
required by Landlord, the cost of which shall be the responsibility of
Tenant, as well as all maintenance, repair, and parts replacement.
Evidence of such contract shall be provided to Landlord within 30 days
after the Commencement Date.
11.3 Upon expiration or termination of this Lease, Tenant shall surrender
the Premises to Landlord broom-clean, free of debris, and in the same
condition as they existed on the Commencement Date, except for
reasonable wear and tear and casualty damage that Tenant is not
required to repair under this Lease.
11.4 In the event Tenant incurs any reasonable expenses because of
Landlord's failure to fulfill its obligations set forth in this
Section 11 (provided that in a non-emergency situation Landlord has
first received oral or written notice of the item requiring
maintenance or repair, and has received a subsequent written notice
from Tenant of Landlord's failure to respond to the first notice and
has failed to commence the necessary maintenance or repairs within
fifteen (15) days from its receipt of the second notice), Landlord
agrees to reimburse Tenant for such reasonable expenses upon demand by
Tenant, provided that Tenant first furnishes Landlord with reasonable
documentation evidencing such expenditures. In the event of the
failure of Landlord to so reimburse Tenant within 15 days after
receiving Tenant's demand therefor, Tenant may deduct up to $5,000 of
such expense per item, together with interest at the rate set forth in
Section 1.9, out of any rent then or thereafter becoming due to
Landlord hereunder. In the event of an emergency situation, where it
is not reasonable for Tenant to provide Landlord with notice of the
item requiring repair or maintenance and such repair or maintenance is
Landlord's responsibility under this Section 11, Tenant may make the
required repairs and shall be reimbursed by Landlord for the
reasonable cost of such repairs, provided that Tenant first furnishes
Landlord with reasonable documentation evidencing such expenditures.
If Landlord does not reimburse Tenant for the reasonable cost of such
repairs within 15 days after Tenant's demand therefor, Tenant may
deduct from rent the reasonable cost of such repair, provided that
Tenant may not deduct from rent a sum in excess of $2,000 spent by
Tenant for each item requiring repair, together with interest as
specified above.
12. ALTERATIONS.
12.1 Tenant must give Landlord prior notice before making any alterations
to the Premises or Project, including any changes to the existing
landscaping. Tenant may make non-structural alterations to the
Premises that cost less than $15,000
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without Landlord's consent. All other alterations must receive
Landlord's prior written consent, which will not be unreasonably
withheld, conditioned, or delayed. At the end of each calendar year,
Tenant shall provide Landlord with construction drawings of all such
alterations and changes made to the Premises during that calendar
year. For any alterations made by Tenant pursuant to this Section 12,
Landlord may post notice of non-responsibility in accordance with the
laws of the state in which the Premises are located. All alterations
made shall remain on and be surrendered with the Premises upon
expiration or termination of this Lease, except that Landlord may, not
less than 60 days before the expiration of the Term of this Lease,
elect to require Tenant to remove any alterations which Tenant has
made to the Premises. If Landlord so elects, Tenant shall, at its own
cost, restore the Premises to the condition designated by Landlord in
its election before the last day of the Term of this Lease. Tenant
shall promptly repair any damage to the Premises caused by the removal
of such alterations.
12.2 Should Landlord consent in writing to Tenant's alteration of the
Premises, Tenant shall contract with a contractor signatory to the
applicable collective bargaining agreement and reasonably approved by
Landlord for the construction of such alterations, shall secure all
appropriate governmental approvals and permits, and shall complete
such alterations with due diligence in compliance with plans and
specifications reasonably approved by Landlord. All such construction
shall be performed in a manner which will not interfere with the lease
rights or quiet enjoyment of other tenants of the Project. Tenant
shall discharge from the Premises and Project, within 20 days after
having received notice thereof, all liens which may result from
construction of alterations or other improvements by or at the request
of Tenant.
13. RELEASE AND INDEMNITY. As material consideration to Landlord, and except in
the event of Landlord's negligence or intentional misconduct, Tenant agrees
that Landlord and its employees, officers, partners and directors shall not
be liable for any injury or damage to the person, property, or business of
Tenant, its employees, invitees, permitees, customers, or any other person
in or about the Premises from any cause, and Tenant waives all claims
against such parties for damage to persons or property arising for any
reason, except only for damage or injury resulting directly from Landlord's
breach of its express obligations under this Lease which Landlord has not
cured within a reasonable time after receipt of written notice of such
breach from Tenant or to the extent such claims arise from Landlord's
negligence or intentional misconduct. In no event shall Landlord have any
liability for any act or omission of Tenant, its employees, invitees,
permitees or customers, or of any other tenant of the Project or its
employees, invitees, permitees or customers. Tenant shall indemnify and
hold harmless Landlord (and its employees, officers, partners, and
directors), the Premises and the Project, from and against all damages,
injuries, liabilities, losses, claims, costs and expenses (including
without limitation Landlord's reasonable attorney fees) related to acts,
events or omissions occurring in, on or about the Premises, or arising out
of or in any way related to Tenant's use or occupancy of the Premises,
Tenant's breach of any term of this Lease,
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or any work, activity or thing done, permitted or suffered by Tenant in, on
or about the Premises or the Project, unless caused by Landlord's
intentional misconduct.
14. TENANT'S RIGHT TO AUDIT.
14.1 Audit Threshold. If, during the Term of this Lease, Tenant's Share of
Expenses for a full calendar year increases by more than five percent
(5%) from Tenant's Share of Expenses for the immediately preceding
full calendar year, Tenant may audit Landlord's common area actual
operating costs in order to verify the accuracy of the Expense charges
provided that:
(1) Tenant specifically designates the calendar year(s) that Tenant
intends to audit, which shall be a year within three (3) years of
the date of the audit but must be within the Term of this Lease;
and
(2) Such audit will be conducted only during regular business hours
at the office where Landlord maintains operating expense records
and only after Tenant gives Landlord fourteen (14) days' prior
notice of its intention to conduct an audit.
14.2 Copy of Audit. Tenant shall deliver to Landlord a copy of the results
of such audit within fifteen (15) days of its receipt by Tenant. No
such audit shall be conducted if any other tenant has conducted an
audit for the time period Tenant intends to audit and Landlord
furnishes to Tenant a copy of the results of such audit.
14.3 Tenant Not in Default. No audit shall be conducted at any time that
Tenant is in default of any of the terms of the Lease.
14.4 Limits for Subtenants and Assignees. No subtenant shall have any right
to conduct an audit and no assignee shall conduct an audit for any
period during which such subtenant or assignee was not in possession
of the Premises.
15. INSURANCE AND WAIVER OF SUBROGATION.
15.1 Liability Insurance. Tenant, at its cost, shall maintain public
liability insurance with a single combined liability limit of
$5,000,000 insuring against the hazards of Premises and operations,
independent contractors, contractual liability (covering the indemnity
clauses contained herein at Sections 13 and 29), products and
completed operations arising out of or in connection with Tenant's
use, occupancy or maintenance of the Premises. Such insurance policy
shall (1) name as additional insureds Landlord and its managing agent,
whose names and addresses have previously been provided to Tenant by
Landlord, (2) contain a cross liability provision, and (3) contain an
endorsement to the effect that "the insurance provided the Landlord
hereunder shall be primary and non-contributing with any other
insurance available to the Landlord." Landlord shall maintain
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public liability insurance with a single combined liability limit of
$5,000,000 insuring against the hazards of the Project and operations,
independent contractors, contractual liability, products, and
completed operations arising out of or in connection with Landlord's
ownership, maintenance, and operation of the Project.
15.2 Property Insurance. At its cost, Tenant shall maintain a policy of
standard fire and extended coverage insurance with vandalism and
malicious mischief endorsements and "all risk" coverage on all of
Tenant's personal property, improvements, fixtures and alterations in
or about the Premises, equal to their full replacement value. The
proceeds from any such policy shall be used by Tenant for the
replacement of personal property and the restoration of Tenant's
improvements, fixtures or alterations deemed advisable by Tenant in
its sole discretion unless otherwise required under this Lease. Said
insurance shall provide for payment of loss to, and shall name as
additional insured(s), the Landlord and the holders of mortgages or
deeds of trust on the Project. If such insurance has a deductible
clause, the deductible amount shall not exceed $10,000 per occurrence
and Tenant shall be liable for such deductible. Landlord shall keep
the Premises insured against fire and other risks covered by a
standard fire insurance policy with an endorsement for extended
coverage.
15.3 Business Interruption Insurance. Tenant shall, at its cost, obtain
business interruption insurance of such type and amount sufficient to
pay all rent and other sums due hereunder for a period of at least
twelve (12) months in the event of any cessation or reduction of
Tenant's business for any reason, including without limitation, damage
or destruction. In no event shall Landlord be liable to Tenant for any
loss of income from the operation of Tenant's business for any reason
whatsoever, including without limitation, from an inability to occupy
the Premises.
15.4 Insurance Policies. All insurance required to be provided by Tenant
under this Lease:
(1) shall be issued in a form reasonably satisfactory to Landlord and
shall be issued by insurance companies which are authorized to do
business in the state in which the Premises are located and which
are reasonably satisfactory and acceptable to Landlord, provided
that such companies shall each enjoy a financial rating of at
least an A-VIII status as rated in the most recent edition of
Best's Insurance Reports; and
(2) shall contain an endorsement requiring at least thirty (30) days
prior written notice of cancellation to Landlord and Landlord's
lender, if any, before cancellation or change in coverage, scope
or amount of any policy. Tenant shall deliver a certificate or
copy of each insurance policy together with evidence of payment
of all current premiums to Landlord within thirty (30) days of
execution of this Lease. Tenant's failure to provide
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evidence of such coverage to Landlord may, in Landlord's sole
discretion, constitute a default under this Lease.
15.5 Waiver of Subrogation. Neither party shall be liable to the other
(or to the other's successors or assigns) for any loss or damage
caused by fire or any of the risks enumerated in a standard fire
insurance policy with an extended coverage endorsement and
earthquake coverage, and in the event of insured loss, neither
party's insurance company shall have a subrogated claim against the
other. This waiver shall be valid only if the insurance policy in
question expressly permits waiver of subrogation or if the insurance
company agrees in writing that such a waiver will not affect
coverage under the policies. Each party agrees to use best efforts
to obtain such an agreement from its insurer if the policy does not
expressly permit a waiver of subrogation.
16. DESTRUCTION. If, during the Term, the Premises or Project are more than
twenty-five percent (25%) destroyed from any cause, or rendered
inaccessible or unusable from any cause, Landlord may, in its sole
discretion and without compensation or liability to Tenant, terminate this
Lease by delivery of notice of termination to Tenant within thirty (30)
days of such event. If, in Landlord's reasonable estimation, the Premises
cannot be restored within one hundred twenty (120) days following such
destruction, then Landlord shall immediately notify Tenant and Tenant may
terminate this Lease by delivery of notice to Landlord within thirty (30)
days of receipt of Landlord's notice; otherwise this Lease shall remain in
full force and effect. If Landlord does not terminate this Lease and if in
Landlord's estimation the Premises can be restored within one hundred
twenty (120) days, then Landlord shall commence to restore the Premises in
compliance with then existing laws and shall complete such restoration with
due diligence. In such event this Lease shall remain in full force and
effect except that the then current rent shall be abated based on the
extent to which the restoration being made by Landlord shall interfere with
the business being carried on by Tenant in the Premises. If Landlord does
not complete its repair and restoration work of the Premises within one
hundred twenty (120) days after the occurrence of the damage or
destruction, Tenant, at its option, may terminate this Lease by written
notice to Landlord that the Lease will terminate if repairs or restoration
are not completed within thirty (30) days after the date of the notice.
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; however, Landlord and Tenant will
reasonably cooperate with each other to make such repairs or restoration.
17. CONDEMNATION.
17.1 Definitions. The following definitions shall apply: (1)
"Condemnation" means (a) the exercise of any governmental power of
eminent domain, whether by legal proceedings or otherwise by
condemnor, and (b) the voluntary sale or transfer by Landlord to any
condemnor either under threat of condemnation or while legal
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proceedings for condemnation are proceeding; (2) "Date of Taking"
means the date the condemnor has the right to possession of the
property being condemned; and (3) "Award" means all compensation,
sums or anything of value awarded, paid or received in connection
with a total or partial Condemnation.
17.2 Obligations to be Governed by Lease. If, during the Term of this
Lease, there is any Condemnation of all or any part of the Premises
or the Project, the rights and obligations of the parties shall be
determined pursuant to this Lease.
17.3 Total or Partial Taking. If Premises are totally taken by
Condemnation, this Lease shall terminate on the Date of Taking. If
only a portion of the Premises or Common Area is Condemned, this
Lease shall continue in effect, except that Tenant may elect to
terminate this Lease if the remaining portion is rendered unsuitable
for Tenant's continued use. If Tenant elects to terminate this
Lease, Tenant must exercise its right to terminate by giving notice
to Landlord within thirty (30) days after the nature and extent of
the Condemnation have been finally determined. If Tenant elects to
terminate this Lease, Tenant shall also notify Landlord of the date
of termination, which date shall not be earlier than thirty (30)
days after Tenant has notified Landlord of its election to
terminate. If any portion of the Premises or common area is taken by
Condemnation and this Lease remains in full force and effect, (i)
Landlord at its sole cost and expense shall restore the remainder of
the Premises and/or common area within one hundred twenty (120) days
after the Date of Taking, and the rent payable hereunder shall abate
equitably until the completion of such restoration; and (ii) after
the completion of Landlord's restoration of the Premises and/or
common area, the rent shall be equitably reduced based on the extent
to which Tenant's use of the Premises for the normal conduct of its
business has been permanently diminished.
17.4 Award. Landlord reserves all rights to damages and awards paid
because of any partial or entire taking of the Premises. Tenant
assigns to Landlord any right Tenant may have to the damages or
award. Further, Tenant shall not make claims against Landlord or the
condemning authority for damages. However, Tenant may claim and
recover from the condemning authority a separate award for Tenant's
moving expenses, business dislocation damages, Tenant's personal
property and fixtures, the unamortized costs of leasehold
improvements paid for by Tenant, and any other award that would not
substantially reduce the award payable to Landlord. Each party shall
seek its own award, at its own expense, and neither shall have any
right to the award made to the other.
18. ASSIGNMENT OR SUBLEASE.
18.1 Tenant shall not assign or encumber its interest in this Lease or
the Premises, nor sublease all or any part of the Premises, nor
allow any other person or entity (except Tenant's authorized
representatives, employees, invitees, or guests) to occupy or use
all or any part of the Premises, without first obtaining Landlord's
written consent, which consent will not be unreasonably withheld,
conditioned, or
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delayed. Any such assignment or sublease shall not relieve Tenant of
any obligation hereunder and Tenant shall remain liable to pay the
rent and to perform all other obligations to be performed by Tenant
under this Lease. Any assignment, encumbrance or sublease without
Landlord's written consent shall be voidable and, at Landlord's
election, shall constitute a default. Landlord's consent shall not
be considered unreasonably withheld if, among other things, (a) the
proposed subtenant's or assignee's financial responsibility does not
meet the same criteria Landlord uses to select comparable tenants
for the Premises; (b) the proposed subtenant's or assignee's
business is not the same as Tenant's business or is not suitable for
the Premises considering the business of other tenants of the
Project and/or the Project's prestige; or (c) the proposed use is
inconsistent with the use permitted by Section 1.3. The foregoing is
not an exclusive list of the reasons for which Landlord may
reasonably withhold its consent to a proposed assignment or
sublease.
18.2 Not withstanding Section 18.1, Tenant may assign or sublease part or
all of the Premises without Landlord's consent to:
(1) Any corporation or partnership that controls, is controlled by,
or is under common control with, Tenant; or
(2) Any corporation resulting from the merger or consolidation with
Tenant; or
(3) Any entity that acquires all of the assets of the business that
is being conducted by Tenant on the Premises;
provided, however, that before any such assignment or sublease shall
be effective, the assignee or sublessee shall assume, in full, the
obligations of Tenant under this Lease, and Tenant shall demonstrate
to Landlord's reasonable satisfaction that the assignee or sublessee
has a net worth at the time of such assignment or sublease, as
determined under generally accepted accounting principles, of not
less than $100,000,000. Any such assignment or sublease shall not
release Tenant of any obligations hereunder or alter the primary
responsibility of Tenant to pay rent and to perform all other
obligations to be performed by Tenant under this Lease.
18.3 Fifty percent (50%) of all rent and other consideration received by
Tenant from an assignee or subtenant in excess of the rent payable
by Tenant to Landlord under this Lease, without any deduction for
leasing commissions or any other out-of-pocket expenses incurred by
Tenant, which amount is to be prorated where a part of the Premises
is subleased or assigned, shall be paid to Landlord within ten (10)
days after Tenant's receipt thereof. If Tenant requests Landlord to
consent to a proposed assignment or subletting, Tenant shall pay to
Landlord, whether or not consent is ultimately given, $100 or
Landlord's reasonable attorneys' fees incurred in connection with
such request, whichever is greater.
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18.4 No interest of Tenant in this Lease shall be assignable by
involuntary assignment through operation of law (including without
limitation the transfer of this Lease by testacy or intestacy). Each
of the following acts shall be considered an involuntary assignment:
(a) If Tenant is or becomes bankrupt or insolvent, makes an
assignment for the benefit of creditors, or institutes proceedings
under the Bankruptcy Act in which Tenant is the bankrupt party; or
if Tenant is a partnership or consists of more than one person or
entity, if any partner of the partnership or other entity is or
becomes bankrupt or insolvent, or makes an assignment for the
benefit of creditors; or (b) if a writ of attachment or execution is
levied on this Lease; or (c) if in any proceeding or action to which
Tenant is a party, a receiver is appointed with authority to take
possession of the Premises. An involuntary assignment shall
constitute a default by Tenant and Landlord shall have the right to
elect to terminate this Lease, in which case this Lease shall not be
treated as an asset of Tenant.
19. DEFAULT. In addition to the acts, events, and omissions elsewhere specified
in this Lease constituting defaults, the occurrence of any of the following
shall constitute a default by Tenant:
19.1 The failure by Tenant to make any payment of rent or any other
payment required to be made by Tenant under this Lease, as and when
due, where such failure shall continue for a period of ten (10) days
after written notice thereof from Landlord to Tenant.
Notwithstanding the foregoing, Landlord shall not be obligated to
give Tenant notice of default for failure to pay rent or other
payment due under this Lease if Landlord has previously given Tenant
notice of default for failure to pay rent or other payment two (2)
times during the same calendar year.
19.2 Failure of Tenant to comply with any term or condition or fulfill
any obligation of this Lease (other than the payment of rent or
other charges) within twenty (20) days after written notice by
Landlord specifying the nature of the default. If the default is of
such a nature that it cannot be completely remedied within the 20-
day period, this provision shall be complied with if Tenant begins
correction of the default within the 20-day period and thereafter
proceeds with reasonable diligence and in good faith to effect the
remedy as soon as practicable. During any calendar year, Tenant
shall be entitled to only one (1) notice for the same type of
default pursuant to this Section 19.2.
19.3 Insolvency of Tenant; an assignment by Tenant for the benefit of
creditors; the filing by Tenant of a voluntary petition in
bankruptcy; an adjudication that Tenant is bankrupt or the
appointment of a receiver of the properties of Tenant; the filing of
any involuntary petition of bankruptcy and failure of Tenant to
secure a dismissal of the petition within thirty (30) days after
filing; or attachment of or the levying of execution on the
leasehold interest and failure of Tenant to secure discharge of the
attachment or release of the levy of execution within ten (10) days
shall constitute a default. If the Lease has been assigned, the
events of
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default so specified shall apply only with respect to the one then
exercising the rights of Tenant under the Lease.
20. LANDLORD'S REMEDIES.
20.1 Remedies. In the event of default, Landlord shall have the remedies
set forth in this Section 20. These remedies are not exclusive; they
are cumulative and in addition to any remedies now or later allowed
by law. Landlord may terminate Tenant's right to possession of the
Premises at any time. No act by Landlord other than giving notice to
Tenant shall terminate this Lease. Acts of maintenance, efforts to
relet the Premises or the appointment of a receiver on Landlord's
initiative to protect Landlord's interest under this Lease shall not
constitute a termination of this Lease. Upon termination of this
Lease, Landlord shall have the right to recover from Tenant: (1) The
worth of the unpaid rent that had been earned at the time of
termination of this Lease; (2) the worth of the amount of the unpaid
rent that would have been earned after the date of termination of
this Lease throughout the remaining Term of this Lease; and (3) any
other amount necessary to compensate Landlord for Tenant's default,
including without limitation brokerage commissions (including the
unamortized portion of the brokerage commissions paid by Landlord in
connection with this Lease), costs of reentry and reletting
(including without limitation the cost of any cleanup, refurbishing,
and removal of Tenant's property and fixtures), court costs, and
attorney and collection fees and costs. "The worth," as used in
Section 20.1(1), is to be computed by allowing interest at the rate
per annum set forth in Section 1.9 above. "The worth," as used in
Section 20.1(2), is to be computed by discounting the amount at the
discount rate of the Federal Reserve Bank of San Francisco in effect
at the time of termination of Tenant's right of possession. Landlord
will use reasonable efforts to relet the Premises after termination
of this Lease or Tenant's right to possession in an effort to
mitigate damages.
20.2 Performance by Landlord of Tenant's Obligations. All covenants and
agreements to be performed by 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. If Tenant shall fail to pay any
sum of money owed to any party, other than Landlord, for which it is
liable hereunder, or if Tenant shall fail to perform any other act
on its part to be performed hereunder or otherwise violate any term
or provision of this Lease including, without limitation, its
obligations pursuant to Sections 6, 11, and 12, Landlord may,
without waiving any default or releasing Tenant from any obligation
hereunder, but shall not be obligated to, make any such payment or
perform any such other act to be made or performed by Tenant. All
sums so paid by Landlord and all necessary incidental costs,
together with interest thereon from the date of such payment by
Landlord at the rate per annum set forth in Section 1.9 above, shall
be payable to Landlord on demand. Tenant covenants to pay any such
sums.
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21. LANDLORD'S DEFAULT. In the event of any breach or default by Landlord under
this Lease, which breach or default renders a material portion of the
Premises unusable for the conduct of Tenant's business and continues for a
period of thirty (30) days after written notice thereof from Tenant (or
with reasonable notice in case of an emergency), then in addition to all
other rights and remedies of Tenant under this Lease and at law or equity,
Tenant may, but shall not be obligated to, cure such breach on behalf of
Landlord and upon demand by Tenant, Landlord shall promptly pay to Tenant
the costs and expenses of such cure, together with interest accruing on
such amounts paid by Tenant at the rate set forth in Section 1.9. If,
however, other than in the case of an emergency, the nature of such breach
is such that it cannot be cured within thirty (30) days, then Tenant's
right to cure such breach shall be suspended for such additional period of
time as may be necessary to cure the breach so long as Landlord commences
cure within thirty (30) days and thereafter diligently and continuously
prosecutes the curing of the breach, and so long as continuation of the
breach does not create material risk to the Premises or to persons using
the Premises. When Tenant makes demand for payment, Tenant shall furnish
Landlord with an itemized statement of the costs and expenses incurred for
cure. If Landlord fails to pay any sums due Tenant under this Lease within
ten (10) days after demand, Tenant may deduct up to $5,000 of the amounts
paid by Tenant from rent then or thereafter due from Tenant. In the case of
an emergency, a situation threatening to the safety of Tenant's employees,
agents, contractors, invitees and licensees or damage to Tenant's personal
property, Tenant may take such immediate action, after notifying Landlord,
as necessary to ensure safety and prevent damage. Nothing above prevents
Tenant from pursuing other remedies.
22. ENTRY ON PREMISES. Landlord and its authorized representatives shall have
the right to enter the Premises at all reasonable times, upon 24 hours'
prior oral or written notice to Tenant (and with no prior notice in the
event of an emergency) for any of the following purposes: (a) to determine
whether the Premises are in good condition and whether Tenant is complying
with its obligations under this Lease; (b) to do any necessary maintenance
and to make any restoration to the Premises or the Project that Landlord
has the right or obligation to perform; (c) to post "for sale" signs at any
time during the Term, and to post "for rent" or "for lease" signs during
the last ninety (90) days of the Term of this Lease, or during any period
while Tenant is in default; (d) to show the Premises to prospective
brokers, agents, buyers, tenants or persons interested in a sale, an
exchange, or other transfer at any time during the Term; (e) to repair,
maintain or improve the Project and to erect scaffolding and protective
barricades around and about the Premises (but not so as to prevent entry to
the Premises), or (f) to do any other act or thing necessary for the safety
or preservation of the Premises or the Project. Except in the event of
Landlord's negligence or intentional misconduct, (i) Landlord shall not be
liable in any manner for any inconvenience, disturbance, loss of business,
nuisance or other damage arising out of Landlord's entry onto the Premises
as provided in this Section 22, and (ii) Tenant shall not be entitled to an
abatement or reduction of rent if Landlord exercises its rights of entry
granted herein. Landlord shall conduct its activities on the Premises as
provided herein in a manner that will cause the least inconvenience,
annoyance or disturbance to Tenant's conduct of business on the Premises.
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For each of these purposes, Landlord shall at all times have and retain a
key with which to unlock all the doors in, upon and about the Premises,
excluding Tenant's vaults and safes. Tenant shall not alter any lock or
install a new or additional lock or bolt on any door of the Premises
without the prior written consent of Landlord, which consent will not be
unreasonably withheld, conditioned or delayed. If Landlord shall give its
consent, Tenant shall in each case furnish Landlord with a key for any such
lock.
23. SUBORDINATION; ESTOPPEL CERTIFICATES.
23.1 Subordination/Nondisturbance. This Lease shall be subject and
subordinate to any mortgage or trust deed ("Encumbrance") now
existing against the Premises or Project, and to any renewals,
replacements, extensions or consolidations thereof. This Lease shall
also be subject and subordinate to any Encumbrance placed on the
Premises after the date of this Lease given to secure a loan made by
a lender to Landlord, and to any renewals, replacements, extensions
or consolidations thereof, provided that the holder of the
Encumbrance shall agree in writing that so long as Tenant is not in
default under this Lease beyond any applicable cure period and
agrees to attorn to the such holder, Tenant's rights under this
Lease shall not be disturbed and shall remain in full force and
effect for the Term of the Lease, unless the Lease is otherwise
terminated pursuant to its terms. In the event the holder of the
Encumbrance or the purchaser at a foreclosure sale ("Successor
Landlord") succeeds to the interest of Landlord under the Lease,
such Successor Landlord shall not be bound by (i) any payment of
rent or other charges for more than one month in advance, except the
Prepaid Rent and free rent, if any, specified in this Lease; (ii)
any amendment, modification, or termination of the Lease without
Successor Landlord's consent after the Successor Landlord's name is
given to Tenant unless the amendment, modification, or termination
is specifically authorized by the original Lease and does not
require Landlord's prior agreement or consent, or (iii) any
liability for any act or omission of Landlord or any other prior
landlord (but such Successor Landlord will be liable for all
obligations accruing under the Lease after the date of the
transfer). Tenant covenants and agrees to execute and deliver, upon
demand by Landlord and in a form requested by Landlord, any
additional documents evidencing the priority or subordination of
this Lease.
23.2 Estoppel Certificates. Either party ("Answering Party") shall from
time to time, within ten (10) business days after receiving written
request by the other party ("Asking Party"), execute and deliver to
the Asking Party a written statement. This written statement, which
may be relied upon by the Asking Party and any third party with whom
the Asking Party is dealing shall certify:
(1) the accuracy of this Lease document;
(2) the Term of this Lease;
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(3) that this Lease is unmodified and in full effect or in full
effect as modified, stating the date and nature of the
modification;
(4) whether to the Answering Party's knowledge the Asking Party is
in default or whether the Answering Party has any claims or
demands against this Lease and, if so, specifying the default,
claim, or demand;
(5) the amount of the current monthly rent;
(6) the dates to which rent has been paid in advance;
(7) the amount of any Prepaid Rent; and
(8) to other correct and reasonably ascertainable facts that are
covered by this Lease.
23.3 Remedy. The Answering Party's failure to comply with its obligations
in Section 23.2 shall be a default under this Lease. Notwithstanding
Sections 19 and 21, the cure period for this default shall be five
(5) business days after the Answering Party receives notice of the
default. Furthermore, the Answering Party's failure to provide the
requested statement shall be conclusive proof that (i) this Lease is
in full force and effect, without modification except as may be
represented by the Asking Party, (ii) there are no uncured defaults
in the Asking Party's performance, and (iii) if Landlord is the
Asking Party, not more than one month's rent has been paid in
advance.
24. NOTICE. Any notice, demand, request, consent, approval or communication
desired by either party or required to be given, shall be in writing and
served either personally or sent by prepaid certified first class mail,
addressed as set forth in Section 1. Either party may change its address by
notification to the other party. Notice shall be deemed to be communicated
forty-eight (48) hours from the time of mailing, if mailed, or at time of
service, if personally served or delivered by a reputable courier service
providing proof of delivery.
25. WAIVER. No delay or omission in the exercise of any right or remedy by
Landlord or Tenant shall impair such right or remedy or be construed as a
waiver. No act or conduct of Landlord, including without limitation,
acceptance of the keys to the Premises, shall constitute an acceptance of
the surrender of the Premises by Tenant before the expiration of the Term.
Only written notice from Landlord to Tenant shall constitute acceptance of
the surrender of the Premises and accomplish termination of the Lease prior
to the stated expiration date of the Term. Landlord's or Tenant's consent
to or approval of any act by the other party requiring Landlord's or
Tenant's consent for approval shall not be deemed to waive or render
unnecessary Landlord's consent to or approval of any subsequent act by the
other party. Any waiver by Landlord or Tenant of any default must be in
writing and shall not be a waiver of any other default concerning the same
or any other provision of the Lease.
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26. SURRENDER OF PREMISES; HOLDING OVER.
26.1 Surrender. Upon expiration of the Term or earlier termination of
this Lease, Tenant shall surrender to Landlord the Premises and all
tenant improvements and alterations in the condition described in
Section 11.3 above. Tenant shall remove all personal property owned
by Tenant and shall perform all restoration made necessary by the
removal of any alterations or Tenant's personal property before the
expiration of the Term, including for example, restoring all wall
surfaces to the condition they were in prior to the date Tenant took
possession of the Premises, except for ordinary wear and tear,
casualty damage that Tenant is not obligated under this Lease to
repair, and improvements and alterations that Tenant is not required
under this Lease to remove. Landlord shall have the right to elect
to retain or dispose of in any manner Tenant's personal property not
so removed. Tenant waives all claims against Landlord for any damage
to Tenant or such personal property resulting from Landlord's
retention or disposal of Tenant's personal property, except for
those claims arising from Landlord's intentional misconduct. Tenant
shall be liable to Landlord for Landlord's costs for storage,
removal and disposal of Tenant's personal property not removed from
the Premises in accordance with this Lease.
26.2 Holding Over.
(1) If Tenant, with Landlord's express written consent, remains in
possession of the Premises after expiration or sooner
termination of this Lease, such possession by Tenant shall be
deemed to be a month-to-month tenancy terminable on thirty (30)
day notice at any time, by either party. All provisions of this
Lease, except those pertaining to term and rent, shall apply to
the month-to-month tenancy. Tenant shall pay monthly rent in an
amount equal to one hundred twenty-five percent (125%) of the
rent payable by Tenant for the last year prior to the date of
such expiration or termination of this Lease. Acceptance by
Landlord of rent after such expiration or earlier termination
shall not result in a renewal or extension of this Lease.
(2) If Tenant holds over after the expiration of the Term or the
earlier termination hereof without the express written consent
of Landlord, Tenant shall become a tenant at sufferance only,
and shall pay a monthly rental rate equal to One Hundred Fifty
percent (150%) of the rent payable by Tenant for the last year
prior to the date of such expiration or termination of this
Lease, prorated on a daily basis, and subject to the terms,
covenants and conditions herein specified, so far as
applicable, including Section 4.3. Acceptance by Landlord of
rent after such expiration or earlier termination shall not
result in a renewal or extension of this Lease.
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26.3 Failure to Surrender. The foregoing provisions of this Section 26
are in addition to and do not affect Landlord's right of re-entry or
any rights of Landlord hereunder or as otherwise provided by law. If
Tenant fails to surrender the Premises upon the expiration of this
Lease despite written demand to do so by Landlord, Tenant shall
indemnify Landlord and hold it harmless against and from all loss or
liability, including without limitation, any claim made by any
succeeding tenant founded on or resulting from such failure to
surrender, together with any attorneys' fees and costs incurred by
Landlord.
27. MORTGAGEE PROTECTION. In the event of any default by Landlord, Tenant will
give notice by registered or certified mail to any beneficiary of a deed of
trust or a mortgagee of a mortgage covering the Premises whose address
shall have been previously furnished to Tenant, and shall offer such
beneficiary or mortgagee the same opportunity to cure the default,
including time to obtain possession of the Premises by power of sale or a
judicial foreclosure, if such should prove necessary to effect a cure.
28. LIMITATION OF LIABILITY. In consideration of the benefits accruing
hereunder, Tenant agrees that, in the event of any actual or alleged
failure, breach or default of this Lease by Landlord, if Landlord is a
partnership: (a) the sole and exclusive remedy shall be against the
partnership and its partnership assets; (b) no partner of Landlord shall be
sued or named as a party in any suit or action (except as may be necessary
to secure jurisdiction of the partnership); (c) no service of process shall
be made against any partner of Landlord (except as may be necessary to
secure jurisdiction of the partnership); (d) no partner of Landlord shall
be required to answer or otherwise plead to any service of process; (e) no
judgment may be taken against any partner of Landlord; (f) any judgment
taken against any partner of Landlord may be vacated and set aside at any
time without hearing; (g) no writ of execution will ever be levied against
the assets of any partner of Landlord. These covenants and agreements are
enforceable both by Landlord and also by any partner of Landlord. Tenant
agrees to look solely to Landlord's interest in the Project, and any
proceeds therefrom, and to no other assets of Landlord for satisfaction of
any liability with respect to this Lease.
Tenant agrees that each of the foregoing provisions shall be applicable to
any covenant or agreement either expressly contained in this Lease or
imposed by statute or at common law.
29. HAZARDOUS SUBSTANCES.
29.1 Landlord's Warranty. Landlord represents and warrants to Tenant that
as of the date of execution of this Lease, Landlord (without any
affirmative duty to investigate) has no actual knowledge of any
Hazardous Substances on the Premises. Landlord has received no
notice of any alleged violation of Environmental Laws with respect
to the Premises. For purposes of this Lease, 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
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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. ss. 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. ss. 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.
29.2 Landlord's Indemnity. Landlord agrees to indemnify Tenant and hold
it harmless from and against any and all claims, damages, fines,
judgments, penalties, costs, losses, liabilities, and expenses
(including, without limitation, attorney fees, consultant and expert
fees) sustained by Tenant during or after the Term of this Lease and
attributable to (i) the presence in, on, under, or about the
Premises, or any discharge or release in or from the Premises, of
any Hazardous Substance prior to the date of this Lease, (ii)
Landlord's failure to comply with any Environmental Law, or (iii)
Landlord's breach of Section 29.1 of this Lease. The foregoing
indemnity shall survive the expiration or earlier termination of
this Lease.
29.3 Tenant's Use of Hazardous Substances. Tenant, at its expense, shall
comply with all Environmental Laws and with the requirements of
attached Exhibit E throughout the Term of this Lease. Tenant shall
not cause or permit any Hazardous Substances to be brought upon,
kept, or used in or about the Premises by Tenant, its agents,
employees, contractors, or invitees without the prior written
consent of Landlord, which shall not be unreasonably withheld so
long as Tenant demonstrates to Landlord's reasonable satisfaction
that such Hazardous Substance is necessary or useful to Tenant's
business and will be used, kept, and stored in a manner that
complies with all Environmental Laws. Landlord consents to Tenant's
use on the Premises of Hazardous Substances that consist of routine
office, computer, and janitorial supplies or are contained in
packaged products intended for resale to customers or are commonly
used in the retail food industry for production of products intended
for sale to customers (the "Permitted Hazardous Substances")
provided that (i) such Permitted Hazardous Substances are used,
kept, stored, and disposed of in accordance with all applicable
Environmental Laws and (ii) prior to each annual anniversary of the
Date of this Lease, Tenant provides Landlord with a detailed
description of all Permitted Hazardous Substances that are then
being used, kept, or stored on the Premises.
29.4 Tenant's Indemnity. Tenant agrees to indemnify Landlord and hold it
harmless from and against any and all claims, damages, fines,
judgments, penalties, costs, losses (including, without limitation,
loss in value of the Premises or the Project,
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damages due to loss or restriction of rentable or usable space, or
any damages due to any adverse impact on marketing of the space and
any and all sums paid for settlement of claims), liabilities and
expenses (including, without limitation, attorney fees, consultant
and expert fees) sustained by Landlord during or after the Term of
this Lease and attributable to (i) any Hazardous Substances placed
on, in, under, or about, or released or discharged from, the
Premises or the Project by Tenant or Tenant's employees, agents,
invitees, or contractors, (ii) Tenant's breach of any provision of
Section 29.3 of this Lease, or (iii) Tenant's failure to comply with
any Environmental Law. This indemnification includes, without
limitation, any and all costs incurred in connection with any
investigation of site conditions or any cleanup, remedial, removal,
or restoration work required by any federal, state, or local
governmental agency or political subdivision. Without limiting the
foregoing, if the presence of any Hazardous Substance on the
Premises or Project caused or permitted by Tenant or its employees,
agents, invitees or contractors results in any contamination of the
Premises, Tenant shall promptly take all actions at its sole expense
as are necessary to return the Premises and Project to the condition
existing prior to the release of any such Hazardous Substances,
provided that Landlord's approval of such actions shall first be
obtained, which approval shall not be unreasonably withheld so long
as such actions would not potentially have any material adverse
effect on the Premises or Project. The foregoing indemnity shall
survive the expiration or earlier termination of this Lease.
29.5 Landlord's Compliance. Landlord shall comply with all Environmental
Laws relating to the Premises throughout the Term of this Lease.
30. MISCELLANEOUS PROVISIONS.
30.1 Time of Essence. Time is of the essence of each provision of this
Lease.
30.2 Successor. This Lease shall be binding on and inure to the benefit
of the parties and their successors, subject to the limitations set
forth in Section 18 of this Lease.
30.3 Landlord's Consent. Any consent required by Landlord under this
Lease must be granted in writing.
30.4 Commissions. Each party represents that it has not had dealings with
any real estate broker, finder or other person with respect to this
Lease in any manner, except for the broker identified in Section
1.10(5), who shall be compensated by the party identified in Section
1.10(6).
30.5 Reciprocal Covenant on Notification of ADA Violations. Within ten
(10) days after receipt, Landlord and Tenant shall advise the other
party in writing, and provide the other with copies of (as
applicable), any notice alleging violation of the Americans with
Disabilities Act of 1990 ("ADA") relating to any portion of
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the Property or of the Premises; any claims made or threatened in
writing regarding noncompliance with the ADA and relating to any
portion of the Property or of the Premises; or any governmental or
regulatory actions or investigations instituted or threatened
regarding noncompliance with the ADA and relating to any portion of
the Property or the Premises.
30.6 Attorney Fees. If either party commences an action against the other
party arising out of or in connection with this Lease, the
prevailing party shall be entitled to recover from the other party
the prevailing party's reasonable attorney fees and costs of suit
incurred at or prior to trial and on appeal, such fees to be set by
the court or arbitrator before which the matter is heard.
30.7 Landlord's Successors. In the event of a sale or conveyance by
Landlord of the Project pursuant to which Landlord's entire interest
in the Project is transferred, the same shall operate to release
Landlord from any liability under this Lease accruing after the sale
or conveyance, and in such event Landlord's successor in interest
shall be solely responsible for all obligations of Landlord under
this Lease.
30.8 Interpretation. This Lease shall be construed and interpreted in
accordance with the laws of the state in which the Premises are
located. This Lease constitutes the entire agreement between the
parties with respect to the Premises and the Project, except for
such guarantees or modifications hereof as may be executed in
writing by the parties from time to time. When required by the
context of this Lease, the singular shall include the plural and
vice versa, and any gender shall include the other and/or neuter.
"Party" shall mean Landlord or Tenant. Each provision hereof is
intended to be severable. The enforceability, invalidity or
illegality of any provision shall not render the other provisions
unenforceable, invalid or illegal, and the parties intend each
provision to be enforced to the fullest extent permissible as
determined by a court of competent jurisdiction if such court
determines that any such provision is not fully enforceable as
agreed herein.
30.9 Execution and Liability. If more than one person or entity
constitutes Tenant or Landlord, the obligations of Tenant or
Landlord herein contained, subject to Section 28 of this Lease,
shall be joint and several. Each person executing this Lease on
behalf of Tenant or Landlord hereby represents and warrants his or
her authority to do so.
30.10 Construction of Lease Provisions. In the event of any ambiguity in
any language in this Lease, or claim of ambiguity, the printed terms
of this Agreement, including additions or addenda, shall not be
construed against Landlord solely because Landlord authored or
drafted such language.
30.11 Force Majeure; Building Components. Landlord shall be excused for
any delay, interruption or failure to provide the building
components, systems, and services that are to be provided to Tenant
under this Lease, to the extent that such
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delay, interruption or failure is due to matters that are beyond the
Landlord's reasonable control, including without limitation,
inclement weather, fire, catastrophe, strikes, civil commotion, acts
of God or the public enemy, year 2000 compliance, acts or omissions
of cities, counties or other governmental agencies, and the
inability to obtain standard building materials. The term "building
components, systems and services" shall include, without limitation,
heating, ventilation and air conditioning; electrical; plumbing;
lighting; sprinkler; elevator; security; automatic door and gate
opening; closing and locking; card or keypad access or control; fire
and smoke alarm, detection and reporting; telephone; computer
automation; monitoring; and other building-related components,
systems and services.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as
of the date below.
LANDLORD: TENANT:
STAFFORD LIMITED PARTNERSHIP HOMEGROCER.COM, INC., a Washington
an OREGON limited partnership corporation
By: THE SPECHT COMPANY
Its General Partner
By: /s/ Gregory L. Specht By: /s/ Kristin H. Stred
--------------------------- -----------------------------
Gregory L. Specht
President Its: Jr. V.P. & General Counsel
----------------------------
Date: 4/20/00 Date: April 19, 2000
---------------------------------- ---------------------------
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EXHIBIT A
The Premises
Cross-hatched Area Represents The Leased Premises
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EXHIBIT B
The Project
Cross-hatched Area Represents The Project
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EXHIBIT C
Sign Regulations
These regulations have been established for the purpose of maintaining
the overall appearance of the Project. Compliance will be strictly enforced. Any
sign installed without the approval of the Landlord will be brought to
conformity at the expense of the Tenant.
1. General Requirements.
a. Tenant shall submit a sketch of its proposed sign's logo and/or
lettering to the Landlord for its approval, which approval shall not
be unreasonably withheld, conditioned, or delayed.
b. The approved sketch will be delivered by the Landlord to the sign
company designated by Tenant. The Tenant is responsible for the cost
of the sign, and the Landlord will bill the Tenant to recover the
cost.
c. Tenant shall be responsible for the fulfillment of all requirements of
these regulations in accordance with the general specifications
provided below.
2. General Specifications.
a. Only raised foam letter signs will be allowed.
b. The sign dimensions are set forth below. These dimensions shall apply
to all Tenant signs.
c. Tenants may select the style, size and color of the individual
company's lettering and logo, subject to Landlord's reasonable
approval as provided above.
d. Placement of the sign and method of attachment to the building will be
reasonably directed by the Landlord.
e. Upon removal of any of Tenant's signs by Tenant, any damage to the
building must be repaired and repainted at the Tenant's expense. All
signs are the property of Tenant.
f. Except as provided herein, no advertising placards, banners, pennants,
names, insignias, trademarks, or other descriptive material shall be
affixed or maintained upon the glass planes or exterior walls of the
building, landscaped areas, streets or parking areas.
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EXHIBIT D
Tenant's Exclusive Parking
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EXHIBIT E
Emissions, Storage, Use and Disposal of Waste
1. Emissions. Tenant shall not:
a. Permit any vehicle on the Premises owned by Tenant or any of its
employees to emit exhaust which is in violation of any governmental
law, rule, regulation or requirement;
b. Discharge, emit or permit to be discharged or emitted any liquid,
solid or gaseous matter, or any combination thereof, into the
atmosphere, the ground or any body of water, which matter, as
reasonably determined by Landlord or any governmental entity, does, or
may, pollute or contaminate the same, or is, or may become,
radioactive or does, or may, adversely affect the (1) health or safety
of persons, wherever located, whether on the Project or anywhere else;
(2) condition, use or enjoyment of the Project or any other real or
personal property, whether on the Project or anywhere else; or (3)
Premises or any of the improvements thereto or thereon including
buildings, foundations, pipes, utility lines, landscaping or parking
areas;
c. Produce, or permit to be produced, any intense glare, light or heat
except within an enclosed or screened area and then only in such
manner that the glare, light or heat shall not be discernible from
outside the Premises;
d. Create, or permit to be created, any sound pressure level which will
interfere with the quiet enjoyment of any other tenant of the Project
or any real property outside the Premises, or which will create a
nuisance or violate any governmental law, rule regulation or
requirement;
e. Create, or permit to be created, any ground vibration that is
discernible outside the Premises;
f. Transmit, receive or permit to be transmitted or received, any
electromagnetic, microwave or other radiation which is harmful or
hazardous to any person or property in, on or about the Premises or
anywhere else.
2. Storage and Use.
a. Storage. Subject to the uses permitted and prohibited to Tenant under
this Lease, Tenant shall store in appropriate leak proof containers
all solid, liquid or gaseous matter, or any combination thereof, which
matter, if discharged or emitted into the atmosphere, the ground or
any body of water, does or may (1) pollute or contaminate the same in
violation of applicable laws, or (2) adversely affect the (i) health
or safety of persons, whether on the Premises or anywhere else;
-E1-
<PAGE>
(ii) condition, use or enjoyment of the Premises or any real or
personal property, whether on the Premises or anywhere else; or (iii)
Premises or any of the improvements thereto or thereon.
b. Use. In addition, without Landlord's prior written consent, Tenant
shall not use, store or permit to remain on the Premises any solid,
liquid or gaseous matter which is, or may become, radioactive. If
Landlord does give its consent, Tenant shall store the materials in
such a manner so as to comply with all applicable laws.
3. Disposal of Waste.
a. Refuse Disposal. Tenant shall not keep any trash, garbage, waste or
other refuse on the Premises except in sanitary containers and shall
regularly and frequently remove same from the Premises. Tenant shall
keep all incinerators, containers or other equipment used for the
storage or disposal of such materials in a clean and sanitary
condition.
b. Sewage Disposal. Tenant shall properly dispose of all sanitary sewage
and shall not use the sewage disposal system (1) for the disposal of
anything except sanitary sewage or (2) in excess of the lesser of the
amount (a) reasonably contemplated by the uses permitted under this
Lease or (b) permitted by any governmental entity. Tenant shall not
commit any act that causes obstruction to the sewage disposal system.
c. Disposal of Other Waste. Tenant shall properly dispose of all other
waste or other matter delivered to, stored upon, located upon or
within, used on, or removed from, the Premises in such a manner that
it does not, and will not, adversely affect the (1) health or safety
of persons wherever located, whether on the Premises or elsewhere, (2)
condition, use or enjoyment of the Premises or any other real or
personal property, wherever located, whether on the Premises or
anywhere else, or (3) Premises or any of the improvements thereto or
thereon including buildings, foundations, pipes, utility lines,
landscaping or parking areas.
4. Compliance with Law. Notwithstanding any other provisions in this Lease to
the contrary, Tenant shall comply with all laws, statutes, ordinances,
regulations, rules and other governmental requirements in complying with
its obligations under this Lease, and in particular, relating to the
storage, use and disposal of hazardous or toxic matter.
-E2-
<PAGE>
5. Inspection and evidence of Compliance. Landlord and its authorized
representatives shall have the right to enter the Premises, after not less
than 24 hours' prior notice to Tenant (except that in the case of
emergencies no prior notice is required), for purposes of inspection of
Tenant's compliance with provisions of this Exhibit E, and Tenant shall
fully cooperate with Landlord and shall allow Landlord and its authorized
representatives to review Tenant's records relating to Tenant's storage,
use and disposal of hazardous or toxic matter. Landlord's entries upon the
Premises shall be done in such a manner so as to cause the least
practicable interference with the conduct of Tenant's business on the
Premises. Tenant shall, upon written request of Landlord, provide evidence
of compliance with all state and federal rules and regulations regarding
the emission, handling and storage of environmentally hazardous materials.
-E3-
<PAGE>
EXHIBIT F
U.S. BANK NATIONAL ASSOCIATION
INTERNATIONAL DEPARTMENT,
1420 FIFTH AVENUE, 5TH FLOOR
SEATTLE, WA 98101 U.S.A
SWIFTWEEKUS44EEA
TELEX: 6723211-5398
PHONE: 206-344-3398
FAX: 206-344-5374
SAMPLE
====================================
IRREVOCABLE STANDBY LETTER OF CREDIT
====================================
AUGUST 18, 1999
________________________________________________________________________________
BENEFICIARY: APPLICANT:
HOMEGROCER.COM, INC.
10230 N.E. POINTS DRIVE
KIRKLAND, WA 98033
________________________________________________________________________________
LETTER OF CREDIT NUMBER: SLCSSEA00xxx
------------
________________________________________________________________________________
EXPIRY DATE:
AT: OUR COUNTERS PRESENTLY LOCATED AT 1420 FIFTH AVENUE, 5TH FLOOR,
INTERNATIONAL DEPARTMENT, SEATTLE, WA, 98101 ON OR BEFORE 4:00 P.M.
________________________________________________________________________________
AMOUNT:
________________________________________________________________________________
WE HEREBY ISSUE THIS IRREVOCABLE STANDBY LETTER OF CREDIT AVAILABLE BY YOUR
DRAFT(S) DRAWN AT SIGHT ON U.S. BANK NATIONAL ASSOCIATION AND ACCOMPANIED BY THE
FOLLOWING DOCUMENTS:
1. BENEFICIARY'S SIGNED STATEMENT THAT HOMEGROCER.COM, INC. HAS DEFAULTED
UNDER THE TERMS AND CONDITIONS OF THE LEASE AGREEMENT SIGNED BETWEEN
HOMEGROCER.COM, INC.
2. THE ORIGINAL OF THIS LETTER OF CREDIT INCLUDING ANY AMENDMENTS.
ADDITIONAL CONDITIONS:
1. ALL BANKING CHARGES OTHER THAN THOSE OF THE ISSUING BANK ARE FOR ACCOUNT
OF THE BENEFICIARY.
2. PARTIAL DRAWINGS ALLOWED.
3. IT IS A CONDITION OF THIS LETTER OF CREDIT THAT IT SHALL BE AUTOMATICALLY
EXTENDED, WITHOUT AMENDMENT, FOR AN ADDITIONAL PERIOD OF ONE YEAR FROM THE
PRESENT EXPIRATION DATE OR EACH FUTURE EXPIRATION DATE, UNLESS WE HAVE
NOTIFIED YOU IN WRITING NOT LESS THAN THIRTY (30) DAYS BEFORE SUCH
EXPIRATION DATE THAT WE ELECT NOT TO RENEW THIS LETTER OF CREDIT, BUT IN NO
EVENT WILL THIS LETTER OF CREDIT BE EXTENDED BEYOND . ALL
WRITTEN NOTIFICATION SHALL BE SENT VIA COURIER.
4. THIS LETTER OF CREDIT IS TRANSFERABLE BY U.S. BANK NATIONAL ASSOCIATION
ONLY, UPON RECEIPT OF YOUR WRITTEN INSTRUCTIONS SUBMITTED IN
THIS PAGE 1 FORMS AN INTEGRAL PART OF LETTER OF CREDIT NO.
<PAGE>
ACCORDANCE WITH THE ATTACHED TRANSFER FORM AND THE ORIGINAL OF THIS
LETTER OF CREDIT TRANSFER FEES ARE FOR ACCOUNT OF THE BENEFICIARY.
--------------------------------------------------------------------------------
DRAFTS DRAWN UNDER THIS CREDIT MUST BEAR THE CLAUSE DRAWN UNDER U.S. BANK
NATIONAL ASSOCIATION IRREVOCABLE STANDBY LETTER OF CREDIT NO. SLCSSEA00XXX.
PURSUANT TO U.S. LAW WE ARE PROHIBITED FROM ISSUING, TRANSFERRING ACCEPTING OR
PAYING LETTERS OF CREDIT TO ANY PARTY OR ENTITY IDENTIFIED BY THE OFFICE OF
FOREIGN ASSETS CONTROL, U.S. DEPT. OF TREASURY, OR SUBJECT TO THE DENIAL OF
EXPORT PRIVILEGES BY THE U.S. DEPT. OF COMMERCE.
THIS CREDIT IS SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTING
CREDITS (1999 REVISION) INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION NO. 500.
WE HEREBY ENGAGE WITH YOU THAT DRAFT(S) DRAWN AND/OR DOCUMENTS PRESENTED UNDER
AND IN COMPLIANCE WITH THE TERMS OF THIS IRREVOCABLE STANDBY LETTER OF CREDIT
WILL BE DULY HONORED UPON PRESENTATION TO US.
A CHARGE OF USD50.00 WILL BE DEDUCTED FROM THE PROCEEDS OF ANY DRAWING PRESENTED
WITH DISCREPANCIES.
U.S. BANK NATIONAL ASSOCIATION
INTERNATIONAL BANKING DIVISION
______________________________
AUTHORIZED SIGNATURE
THIS PAGE 2 FORMS AN INTEGRAL PART OF LETTER OF CREDIT NO.
