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Exhibit 10.10
Basic Lease Information
Lease Date: April 17, 2000
Landlord: RIGGS & COMPANY, a division of
Riggs Bank N.A., as trustee of the
Multi-Employer Property Trust, a
trust organized under 12 C.F.R.
Section 9.18
Address of Landlord: c/o Trammell Crow Company
8625 SW Cascade Avenue, Suite 500
Portland, Oregon 97008
Tenant: HOMEGROCER.COM, INC., a
Washington corporation
Premises: 19801 SW 95th Place,
Tualatin, Oregon 97062
Paragraph 1 "Premises" shall mean the approximately 21,447 square feet in
Building E of approximately 65,775 square feet (computed from
measurements to the exterior of outside walls of the building and
to the center of interior walls), such Premises being shown and
outlined on the plan attached hereto and incorporated herein by
this reference as Exhibit A, and being part of the real property
described in Exhibit B attached hereto and incorporated herein by
this reference. The Tenant shall vacate approximately 8,034
square feet of the Premises no later than, and the Premises shall
be automatically deemed reduced to 13,443 square feet as of, June
1, 2000 as more particularly described and outlined in red in
Exhibit A-1 attached hereto and incorporated herein by this
reference
Paragraph 1 Lease Term: Commencing on the "Commencement Date" as hereinafter
defined and ending 5 months thereafter except that in the event
the Commencement Date is a date other than the first day of a
calendar month, such term shall extend for said number of months
in addition to the remainder of the calendar month following the
Commencement Date.
Paragraph 1 Scheduled Term Commencement Date: May 1, 2000
Paragraph 2 Monthly Base Rent:
May 1, 2000 - May 31, 2000 $13,188.00
June 1, 2000 - September 30, 2000 $ 8,970.00
Paragraph 2B Security Deposit: $8,970.00
Paragraph 4A Tenant's Initial Monthly Escrow
Payment for Taxes, Assessments
and Other Charges:
May 1, 2000 - May 31, 2000 $1,829.00
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June 1, 2000 - September 30, 2000 $1,147.00
Paragraph 7 Tenant's Initial Monthly Common Area Maintenance
Charge:
May 1, 2000 - May 31, 2000 $1,036.00
June 1, 2000 - September 30, 2000 $649.00
Paragraph 13B Tenant's Initial Monthly Insurance Escrow Payment:
May 1, 2000 - May 31, 2000 $73.00
June 1, 2000 - September 30, 2000 $46.00
Tenant's Initial Monthly Payment Total: $16,126.00
The foregoing Basic Lease Information is hereby incorporated into
and made a part of this Lease. Each reference in this Lease to
any of the Basic Lease Information shall mean the respective
information herein above set forth and shall be construed to
incorporate all of the terms provided under the particular Lease
paragraph pertaining to such Basic Lease Information. In the
event of any conflict between any Basic Lease Information and
this Lease, the former shall control.
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LEASE AGREEMENT
THIS LEASE AGREEMENT, made and entered into by and between RIGGS & COMPANY, a
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division of RIGGS BANK N.A., as trustee of the Multi-Employer Property Trust, a
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trust organized under 12 C.F.R. Section 9.18 hereinafter referred to as
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"Landlord", and HOMEGROCER.COM, INC., a Washington Corporation, hereinafter
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referred to as "Tenant";
WITNESSETH
1. PREMISES AND TERM.
A. In consideration of the obligation of Tenant to pay rent as herein
provided, and in consideration of the other terms, provisions and covenants
hereof, Landlord hereby demises and leases to Tenant, and Tenant hereby
takes and leases from Landlord those certain Premises as outlined on
Exhibit "A" attached hereto and incorporated herein by this reference
(hereinafter referred to as the "Premises"), together with all rights,
privileges, easements, appurtenances, and amenities belonging to or in any
way appertaining to the Premises and together with the buildings,
sidewalks, curbs, driveways, and other improvements situated or to be
situated upon land described in Exhibit B attached hereto and incorporated
herein by this reference (the "Project").
B. TO HAVE AND TO HOLD the same for a term commencing on the "Commencement
Date", as hereinafter defined, and ending thereafter as specified in the
Basic Lease Information (the "Lease Term"); provided, however, that, in the
event the "Commencement Date" is a date other than the first day of a
calendar month, such term shall extend for the number of months in addition
to the remainder of the calendar month following the "Commencement Date".
C. The "Commencement Date" shall be the earlier of: (i) the Scheduled Term
Commencement Date shown in the Basic Lease Information, or (ii) the date
upon which the Premises shall have been substantially completed in
accordance with the plans and specifications described in Exhibit "C"
attached hereto and incorporated herein by this reference. If the Premises
shall not have been substantially completed by the Scheduled Term
Commencement Date and the delay in substantially completing the Premises is
not caused in whole or in part by any act or omission of Tenant, or
Tenant's agents, employees, contractors or subcontractors, Tenant's
obligations to pay rent under this Lease shall commence on the date the
Premises are substantially completed. In no event shall Landlord be liable
to Tenant for any loss or damage resulting from any delay for any reason
whatsoever in the substantial completion of the Premises. Landlord shall
notify Tenant in writing as soon as Landlord deems the Premises to be
substantially completed and ready for occupancy. If Tenant believes that
the Premises have not in fact been substantially completed, Tenant shall
notify Landlord in writing of Tenant's objections within three (3) days of
Landlord's notice to Tenant that the Premises are substantially complete.
Landlord shall have a reasonable time after delivery of such notice in
which to take such corrective action as Landlord, in its sole discretion,
seems appropriate, and shall notify Tenant in writing as soon as Landlord
deems that such corrective action has been completed so that the Premises
are substantially completed and ready for occupancy. In the event of any
dispute as to the substantial completion of work required to be performed
by Landlord, the certificate of Landlord's architect or general contractor
shall be conclusive. The taking of possession by Tenant of any portion of
the Premises for any reason shall be deemed conclusively to establish that
the Premises have been substantially completed in accordance with the plans
and specifications and that the Premises are in good and satisfactory
condition as of when possession was so taken. Tenant acknowledges that no
representations as to the condition or repair of the Premises have been
made by Landlord, unless such are expressly set forth in this Lease. After
the Commencement Date, Tenant shall, upon demand, execute and deliver to
Landlord a letter of acceptance of delivery of the Premises, specifying the
Commencement Date.
2. BASE RENT AND SECURITY DEPOSIT:
A. Tenant agrees to pay to Landlord Monthly Base Rent for the Premises, in
advance, without demand, deduction, or set off, for the entire Lease Term
at the rate specified in the Basic Lease Information, payable in monthly
installments. The first monthly installment shall be due and payable on the
date hereof and thereafter monthly installments of Monthly Base Rent shall
be due and payable on the first day of each calendar month succeeding the
Commencement Date during the Lease Term, except that the payment of Monthly
Base Rent for any fractional calendar month at the commencement or end of
this Lease shall be prorated on the basis of a 30-day month.
B. In addition, Tenant agrees to deposit with Landlord on the date hereof a
security deposit in the amount specified in the Basic Lease Information,
which sum shall be held by Landlord, without obligation for interest, as
security for the performance of Tenant's covenants and obligations under
this Lease, it being expressly understood and agreed that such deposit is
not an advance rental deposit, not the last month's rent and not a measure
of Landlord's damages in the event of Tenant's default. Upon the occurrence
of any default by Tenant under this Lease, Landlord may, from time to time,
without prejudice to any other remedy provided herein or provided by law,
use such deposit to the extent necessary to make good any arrears of rent
or other payment due Landlord hereunder, and any other damage, injury,
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expense or liability caused by such event of default; or to perform any
obligation required of Tenant under this Lease; and Tenant shall pay to
Landlord on demand the amount so applied in order to restore the security
deposit to its original amount. Although the security deposit shall be
deemed the property of Landlord, any remaining balance of such deposit
shall be returned by Landlord to Tenant within thirty (30) days of the date
following the termination of this Lease that all of Tenant's obligations
under this Lease have been fulfilled. Tenant may not mortgage, assign,
transfer or encumber the Security Deposit and any such act on the part of
Tenant shall be without force or effect. In the event any bankruptcy,
insolvency, reorganization or other creditor-debtor proceedings shall be
instituted by or against Tenant, the Security Deposit shall be deemed to be
applied first to the payment of Monthly Base Rent, Additional Rent and all
other sums payable under this Lease to Landlord for all periods prior to
the institution of such proceedings and the balance, if any, may be
retained by Landlord and applied against Landlord's damages.
3. USE. The Premises shall be used only for general office, storage and
distribution of grocery and related products and for no other purpose
whatsoever without Landlord's prior written consent. Outside storage,
including, without limitation, trucks and other vehicles, is prohibited
without Landlord's prior written consent. Tenant shall at its own cost and
expense obtain and maintain any and all licenses, permits, and other
approval necessary or appropriate for its use, occupation or operation of
the Premises. Tenant's inability to obtain or maintain any such license,
permit or approval necessary or appropriate for its use, occupation or
operation of the Premises shall not relieve it of its obligations under
this Lease, including the obligation to pay Base Rent and additional rent.
Tenant shall comply with all governmental laws, ordinances, rules and
regulations applicable to the use and condition of the Premises, and shall
promptly comply with all governmental orders and directives including, but
not limited to, those regarding the correction, prevention and abatement of
nuisances in or upon, or connected with, the Premises, all at Tenant's sole
expense. Without limiting the generality of the foregoing, Tenant shall
comply with the requirements of the Americans with Disabilities Act and all
other laws, regulations, orders, codes, ordinances and governmental laws
pertaining to the Premises and Tenant's use thereof at Tenant's sole cost
and expense. Tenant shall not commit or allow to be committed or exist: (a)
any waste upon the Premises, (b) any public or private nuisance, (c) any
objectionable or unpleasant odors, smoke, dust, gas, noise or vibrations to
emanate from the Premises, or (d) any act or condition which disturbs the
quiet enjoyment of any other tenant in the Building, violates any of
Landlord's contracts affecting any or all of the land or Building, creates
or contributes to any work stoppage, strike, picketing, labor disruption or
dispute, interferes in any way with the business of Landlord or any other
tenant in the Building or with the rights or privileges of any contractors,
subcontractors, licensees, agents, concessionaires, subtenants, servants,
employees, customers, guests, invitees or visitors or any other persons
lawfully in and upon the land or Building, or causes any impairment or
reduction of the good will or reputation of the land or Building. In
addition to any other remedies Landlord may have for a breach by Tenant of
the terms of this Paragraph 3, Landlord shall have the right to have Tenant
evicted from the Premises. Without Landlord's prior written consent, Tenant
shall not receive, store or otherwise handle any product, material or
merchandise which is explosive, highly inflammable, hazardous or a
pollutant. Tenant will not permit the Premises to be used for any purpose
or in any manner (including, without limitation, any method of storage)
which would render the insurance thereon void or the insurance risk more
hazardous or cause the State Board of Insurance or other insurance
authority to disallow any sprinkler credits. In the event Tenant's use of
Premises shall result in an increase in insurance premiums, Tenant shall be
solely responsible for such increase.
4. TAXES AND OTHER CHARGES.
A. Tenant agrees to pay its proportionate share of any and all real and
personal property taxes, regular and special assessments (including, but
not limited to, local improvement district assessments to finance the costs
of streets, sewers, traffic lights and other utilities), license fees and
other charges of any kind and nature whatsoever, payable as a result of any
public or quasi-public authority, private party, or owner's association
levy, assessment or imposition against, or arising out of Landlord's
ownership of or interest in, the Project, together with the building and
the grounds, parking areas, driveways, roads, and alleys around the
building in which the Premises are located, or any part thereof
(hereinafter collectively referred to as the "Charges"). During each month
of the Lease Term, Tenant shall make a monthly escrow deposit with Landlord
(the "Escrow Payment") equal to 1/12 of its proportionate share of the
Charges which Landlord estimates will be due and payable for that
particular calendar year. Tenant authorizes Landlord to use the funds
deposited by Tenant with Landlord under this Paragraph 4 to pay the
Charges. Each Escrow Payment shall be due and payable, as additional rent,
at the same time and in the same manner as the payment of Monthly Base Rent
as provided herein. The amount of the initial monthly Escrow Payment will
be specified in the Basic Lease Information. The initial Escrow Payment is
based upon Tenant's proportionate share of the estimated Charges for the
year in question, and the monthly Escrow Payment is subject to increase or
decrease as determined by Landlord to reflect an accurate escrow of
Tenant's estimated proportionate share of the Charges. The Escrow Payment
account of Tenant shall be reconciled annually. If the Tenant's total
Escrow Payments are less than Tenant's actual proportionate share of the
Charges, Tenant shall pay to Landlord upon demand the difference; if the
Tenant's total Escrow Payments are more than Tenant's actual proportionate
share of the Charges, Landlord shall retain such excess and credit it to
Tenant's Escrow Payment account for the successive year's Charges. Tenant's
proportionate share of the Charges shall be computed by multiplying the
Charges by a fraction, the numerator of which shall be the number of gross
leasable square feet of floor space in the Premises and the denominator of
which shall be the total applicable gross leasable square footage or such
other equitable apportionment as Landlord may adopt.
B. If Tenant should fail to pay any Escrow Payments, taxes, assessments,
licensee fees or other charges required to be paid by Tenant hereunder, in
addition to any other remedies provided herein, Landlord may, if it so
elects, pay such Escrow Payments or taxes, assessments, license fees and
other charges. Any sums so paid by Landlord shall be deemed to be
additional rental owing by Tenant to
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Landlord and due and payable upon demand as additional rental together with
interest at the rate of eighteen percent (18%) per annum from the date of
payment by Landlord until repaid by Tenant.
C. (1) If at any time during the Lease Term, the present method of
taxation shall be changed so that in lieu of the whole or any part of any
taxes, assessments, fees or charges levied, assessed or imposed on real
estate and the improvements thereon, there shall be levied, assessed or
imposed on Landlord a capital levy or other tax directly on the rents
received therefrom and/or a franchise tax, assessment, levy or charge
measured by or based, in whole or in part, upon such rents or the present
or any future building or buildings, then all such taxes, assessments, fees
or charges, or the part thereof so measured or based, shall be deemed to be
included within the term "Charges" for the purposes of this Lease.
(2) Tenant may, at its sole cost and expense, in its own name, dispute
and contest any Charges by appropriate proceedings diligently conducted in
good faith, but only after Tenant in such contest has deposited with
Landlord the amount so contested and unpaid, which shall be held by
Landlord without obligation for interest until the termination of the
proceedings, at which time the amount(s) deposited shall be applied by
Landlord toward the payment of the items held valid (plus any court costs,
interest, penalties and other liabilities associated with the proceedings),
and Tenant's share of any excess shall be returned to Tenant. Tenant
further agrees to pay to Landlord upon demand all court costs, interest,
penalties and other liabilities relating to such proceedings. Tenant agrees
to indemnity, protect, defend and hold harmless the Indemnified Parties (as
defined below) from and against any claims, liabilities, costs, damages or
expenses (including attorneys' fees) in connection with any such
proceedings.
(3) Any payment to be made pursuant to this Paragraph 4 with respect
to the calendar year in which this Lease commences or terminates shall bear
the same ratio to the payment which would be required to be made for the
full calendar year as that part of such calendar year covered by the Lease
Term bears to a full calendar year.
D. Tenant shall be liable for all taxes levied against personal property
and trade fixtures placed by Tenant in the Premises. If any such taxes are
levied against Landlord or Landlord's property and if Landlord elects to
pay the same or if the assessed value of Landlord's property is increased
by inclusion of personal property and trade fixtures placed by Tenant in
the Premises and Landlord elects to pay the taxes based on such increase,
Tenant shall pay to Landlord upon demand that part of such taxes for which
Tenant is primarily liable hereunder.
5. TENANT'S MAINTENANCE.
A. Tenant shall at its own cost and expense keep and maintain all parts
of the Premises (except those for which Landlord is expressly responsible
under the terms of this Lease) in good condition, promptly making all
necessary or prudent repairs and replacements, including, but not limited
to, windows, glass and plate glass, doors, any special office entry,
interior walls and finish work, floor and floor covering, downspouts,
gutters, heating and air conditioning systems, dock boards, truck doors,
dock bumpers, paving, and plumbing work and fixtures. Tenant shall also
perform termite and pest extermination, regularly remove trash and debris,
keep the parking areas, driveways, alleys and the whole of the Premises in
a clean and sanitary condition, replace light fixtures and bulbs and, in
all other respects, maintain the Premises in good working order and
condition. Tenant shall repair all wind damage to glass.
B. Tenant shall not damage any wall or disturb the integrity and support
provided by any wall and shall, at its sole cost and expense, promptly
repair any damage or injury to any wall caused by Tenant or its employees,
agents, licensees or invitees.
C. Tenant and its employees, agents, licensees and invitees shall have
the right to use the parking areas, if any, as may be designated by
Landlord in writing, subject to such reasonable rules and regulations as
Landlord may from time to time prescribe and subject to rights of ingress
and egress of other tenants. Landlord shall not be responsible for
enforcing any exclusive parking rights granted to against any third
parties. If Tenant can be clearly identified as being responsible for
obstructions or stoppage of a common sanitary sewage line, then Tenant
shall pay the cost of repairing such sewage line, upon demand as additional
rent.
D. Tenant shall, at its own cost and expense, enter into a regularly
scheduled preventive maintenance/service contract with a maintenance
contractor for servicing all heating and air conditioning systems and
equipment within the Premises.
E. If Tenant fails to maintain or repair the Premises in accordance with
this paragraph, then Landlord may, but shall not be required to, enter the
Premises upon two (2) business days prior written notice to Tenant (or
immediately without any notice in the case of an emergency) to perform such
maintenance or repair at Tenant's sole cost and expense. Tenant shall pay
to Landlord the cost of such maintenance or repair plus a fifteen percent
(15%) administration fee within ten (10) business days of written demand
from Landlord.
6. LANDLORD'S REPAIRS. After written notice from Tenant, Landlord shall use
commercially reasonable efforts to make such repairs to the roof, exterior
walls and foundations as Landlord deems necessary, and Tenant shall pay its
proportionate share of the costs of such repairs as provided in Paragraph
7. Tenant shall repair and pay for any damage to such items to be
maintained by Landlord caused by any act, omission or negligence of Tenant,
or Tenant's employees, agents, licensees or invitees, or caused by Tenant's
default hereunder. The term "walls" as used herein shall not include
windows, glass or plate glass, doors, special store fronts or office
entries. Tenant shall immediately give Landlord written notice
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of any defect or any need for repairs, after which Landlord shall have a
reasonable opportunity and time to repair same or cure such defect.
Landlord's liability with respect to any defects, repairs or maintenance
for which Landlord is responsible under any of the provisions of this Lease
shall be limited solely to the cost of such repairs or maintenance or the
curing of such defect. In no event will Landlord be responsible for paying
incidental or consequential damages resulting from Landlord's failure to
cure such defects.
7. MONTHLY COMMON AREA MAINTENANCE CHARGE. Tenant agrees to pay, as an
additional charge each month, its proportionate share of the cost of the
operation, maintenance, improvement, repair and replacement of the "Common
Area", which shall be defined from time to time by Landlord. The term
Common Area may include any property not owned by Landlord which is located
beyond the boundaries of the Project to the extent Landlord is obliged to
pay certain costs of operation and maintenance or to contribute to the cost
of operation and maintenance. Common Area costs which may be incurred by
Landlord at its discretion, may include, but shall not be limited to those
costs incurred for lighting, water, sewage, trash removal, exterior
painting, exterior window cleaning, sweeping, management, accounting,
policing, inspecting, sewer lines, plumbing, paving, landscape maintenance,
plant material replacement and other like charges, and Landlord's fee for
supervision and administration of the items set forth in this Paragraph,
currently at 10%. The proportionate share to be paid by Tenant of the cost
of operation, maintenance, improvement, repair and replacement of the
Common Area shall be computed on the ratio that the gross leasable square
footage of the Premises bears to the total applicable gross leasable square
footage or such other equitable apportionment as Landlord may adopt.
Landlord shall make monthly or other periodic charges based upon the
estimated annual cost of operation and maintenance of the Common Area,
payable in advance but subject to adjustment after the end of the year on
the basis of the actual cost for such year. Any such periodic charges shall
be due and payable upon delivery of notice thereof. The initial Common Area
Maintenance Charge, subject to adjustment as provided herein, shall be due
and payable, as additional rent, at the same time and in the same manner as
the time and manner of the payment of Monthly Base Rent as provided herein.
The amount of the initial monthly Common Area Maintenance Charge shall be
as specified in the Basic Lease Information.
8. ALTERATIONS. Tenant shall not make any alterations, additions or
improvements to the Premises (including, but not limited to, roof and wall
penetrations or alterations, additions or improvements affecting building,
mechanical or electrical systems or equipment) without the prior written
consent of Landlord, which consent may be withheld in its sole discretion
or may be conditioned on, among other things, proof of insurance coverage,
payment and performance bonds, in forms, amounts and by companies
acceptable to Landlord, and Landlord's review of Tenant's plans and
specifications, Tenant's contractor and Tenant's building permit. Tenant
may, without the consent of Landlord, but at its own cost and expense and
in a good workmanlike manner erect such shelves, bins, machinery and trade
fixtures as it may deem advisable, without altering the basic character of
the building or improvements and without overloading or damaging such
building or improvements, and in each case complying with all applicable
governmental laws, ordinances, regulations and other requirements. All
alterations, additions, improvements and partitions erected by Tenant shall
be and remain the property of Tenant during the Term of this Lease and
Tenant shall, unless Landlord otherwise elects as hereinafter provided,
remove all alterations, additions, improvements and partitions erected by
Tenant and restore the Premises to their original condition by the date of
termination of this Lease or upon earlier vacating of the Premises;
provided, however, that if Landlord so elects prior to termination of this
Lease or upon earlier vacating of the Premises, such alterations,
additions, improvements and partitions shall become the property of
Landlord as of the date of termination of this Lease or upon earlier
vacating of the Premises and shall be delivered up to the Landlord with the
Premises. All shelves, bins, machinery and trade fixtures installed by
Tenant may be removed by Tenant prior to the termination of this Lease if
Tenant so elects, and shall be removed by the date of termination of this
Lease or upon earlier vacating of the Premises if required by Landlord;
upon any such removal Tenant shall restore the Premises to their original
condition. All such removals and restoration shall be accomplished in good
workmanlike manner so as not to damage the buildings and other improvements
situated on the Premises. Landlord shall have the right at any time and
from time to time to make changes or alterations to any portion of the
Project other than the Premises and Landlord shall not be subject to any
liability with respect to such alterations.
9. SIGNS. Tenant shall not install signs upon the Premises without Landlord's
prior written approval, and any such signage shall be subject to any
applicable governmental laws, ordinances, regulations and other
requirements. Tenant shall remove all such signs by the expiration or
sooner termination of this Lease. Such installations and removals shall be
made in such a manner as to avoid injury or defacement of the building and
other improvements, and Tenant shall repair any injury or defacement,
including, without limitation, discoloration, caused by such installation
and/or removal.
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10. INSPECTION/SURRENDER OF POSSESSION.
A. Landlord and Landlord's agents and representatives shall have the right
to enter and inspect the Premises at any reasonable time during business
hours, for the purpose of ascertaining the condition of the Premises or in
order to make such repairs as may be required or permitted to be made by
Landlord under the terms of this Lease or for any other lawful purpose.
During the period that is six (6) months prior to the end of the Term
hereof, Landlord and Landlord's agents and representatives shall have the
right to enter the Premises at any reasonable time during business hours
for the purpose of showing the Premises and shall have the right to erect
on the Premises a suitable sign indicating the Premises are available.
B. Tenant shall, at the expiration or earlier termination of this Lease,
surrender and deliver the Premises to Landlord in as good condition as when
received by Tenant from Landlord or as later improved, reasonable use and
wear excepted.
C. Tenant shall give written notice to Landlord at least thirty (30) days
prior to vacating the Premises and shall arrange to meet with Landlord for
a joint inspection of the Premises prior to vacating. In the event of
Tenant's failure to give such notice or arrange such joint inspection,
Landlord's inspection at or after Tenant's vacating the Premises shall be
conclusively deemed correct for purposes of determining Tenant's
responsibility for restoring the Premises to the condition required
hereunder.
11. UTILITIES. Landlord agrees to provide at its cost water, electricity and
gas service connections into the Premises; but Tenant shall pay for all
water, gas, heat, light, power, telephone, sewer, sprinkler charges and
other utilities and services used on or from the Premises, together with
any taxes, penalties, surcharges or the like pertaining thereto and any
maintenance charges for utilities and shall furnish all electric light
bulbs and tubes. If any such services are not separately metered to Tenant,
Tenant shall pay a reasonable proportion as determined by Landlord of all
charges jointly metered with other Premises. Landlord shall not be liable
for any loss, injury, damage to property, or other consequences caused by
or resulting from any variation, interruption, or failure of utilities ore
services in the Building due to any cause whatsoever. However, in the event
of such variation, interruption or failure, Landlord shall use reasonable
diligence to restore such service to a normal operating condition. No
temporary interruption, variance, or failure of such services incident to
the making or repairs, strike ,extreme weather conditions, or the
conditions or events beyond Landlord's reasonable control shall be deemed
an eviction of Tenant or relieve Tenant from any of Tenant's obligations
hereunder.
12. ASSIGNMENT AND SUBLETTING.
A. Tenant shall not have the right, voluntarily or involuntarily, to
assign, convey, transfer, mortgage or sublet the whole or any part of the
Premises under this Lease without the prior written consent of Landlord. If
Tenant is a partnership, corporation or limited liability company, the
transfer, assignment, sale or other change in ownership interest in excess
of 33% (in the aggregate) shall be deemed an assignment within the meaning
of this Paragraph. In the event Tenant applies to Landlord for consent to
assign, convey, transfer or sublet the Premises, Landlord may condition
such consent on, among other things, the right to receive one-half of the
profit, if any, which Tenant may realize on account of such assignment,
conveyance, transfer or sublease of the Premises or any other condition.
For purposes of this paragraph, "profit" shall mean any sum which the
assignee, sublessee or transferee is required to pay, or which is credited
to Tenant as rent in excess of the rents required to be paid by Tenant to
Landlord under this Lease. Landlord also reserves the right to recapture
the Premises or applicable portion thereof in lieu of responding to
Tenant's transfer request by notice of Landlord's exercise of its recapture
right given to Tenant within twenty (20) days after receipt of Tenant's
written request for assignment or subletting. Such recapture shall
terminate this Lease as to the applicable space effective on the
prospective date of assignment or subletting, which shall be the last day
of a calendar month and not earlier than sixty (60) days after receipt of
Tenant's request hereunder. Nothing contained in this Lease shall prohibit
Landlord from entering into a new lease with Tenant's proposed assignee or
sublessee. In the event that Landlord shall not elect to recapture the
Premises or the applicable portion thereof, Tenant shall pay Landlord a
reasonable fee, not to exceed $500.00, to reimburse Landlord for processing
costs incurred in connection with considering whether to consent to
Tenant's sublease or assignment request, and shall also reimburse Landlord
for Landlord's reasonable attorneys' fees.
B. Notwithstanding any permitted assignment or subletting, Tenant shall at
all times remain directly, primarily and fully responsible and liable for
the payment of the rent and all other charges under this Lease and for
compliance with all of its other obligations under the terms, provisions
and covenants of this Lease. Upon the occurrence of an "event of default"
as hereinafter defined, if the Premises or any part thereof are then
assigned or sublet, Landlord, in addition to any other remedies herein
provided, or provided by law, may at its option collect directly from such
assignee or subtenant all rents becoming due to Tenant under such
assignment, transfer or sublease and apply such rent against any sums due
to Landlord from Tenant hereunder, and no such collection shall be
construed to constitute a novation or a release of Tenant from the further
performance of Tenant's obligations here under.
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13. INSURANCE, FIRE AND CASUALTY DAMAGE.
A. Landlord shall maintain casualty insurance covering the building of
which the Premises are a part in an amount equal to the "replacement cost"
thereof, insuring against the perils covered by the extended coverage
policy and any other perils elected to be covered by the Landlord.
Coverages and endorsements shall be as selected by the Landlord and such
insurance shall be for the sole benefit of Landlord and all insurance
proceeds shall remain under its sole control. Such insurance may be
effectuated, in whole or in part, by a blanket policy covering the building
in which the Premises are located and other buildings. In the event the
insurance policy is subject to a deductible, Tenant shall be liable for and
shall pay all or its proportionate share, as appropriate, of any deductible
withheld from insurance proceeds or payables under the terms of the
insurance policy procured by Landlord in the event of a claim or insured
loss with respect to the building in which the Premises are located.
Landlord may, in its discretion, require that Tenant, at its sole cost and
expense, maintain on all of its personal property, tenant improvements and
alterations in, or on about the Premises a policy of casualty insurance to
the extent of the full replacement value without any deduction for
depreciation.
B. Tenant shall pay its proportionate share of Landlord's costs of
procuring and maintaining: (i) the insurance coverage described in
Subparagraph 13A, (ii) liability insurance with respect to the Project and
the operations thereon, and (iii) any other insurance coverage procured by
Landlord and pertaining or relating to the Premises in any way. In the
event any insurance coverage is on a blanket basis, the premium shall be
equitably apportioned to the buildings and improvements located within the
Project before determining Tenant's proportionate share. During each month
of the term of this Lease, Tenant shall make a monthly escrow deposit with
Landlord (the "Insurance Escrow Payment") equal to one-twelfth of its
proportionate share of Landlord's cost of procuring and maintaining the
insurance described in Subparagraphs 13A and 13B which will be due and
payable for that particular year. Tenant authorizes Landlord to use the
funds deposited by Tenant with Landlord under this paragraph to pay the
cost of such insurance. Each Insurance Escrow Payment shall be due and
payable, as additional rent, at the same time and manner of the payment of
the Monthly Base Rent as provided herein. The initial monthly Insurance
Escrow Payment is subject to increase or decrease as determined by Landlord
to reflect an accurate monthly escrow of Tenant's estimated proportionate
share of this insurance. The Insurance Escrow Payment account of Tenant
shall be reconciled annually. If the Tenant's total Insurance Escrow
Payments are less than Tenant's actual proportionate responsibility for
such insurance, Tenant shall pay to Landlord upon demand the difference; if
the total Insurance Escrow Payments of Tenant are more than Tenant's actual
proportionate responsibility for such insurance, Landlord shall retain such
excess and credit it to the next monthly payment payable by Tenant or if
this Lease has expired, refund such excess to Tenant. Tenant's cost of
insurance shall be computed by multiplying the cost of Insurance by a
fraction, the numerator of which shall be the number of gross leasable
square feet of floor space in the Premises and the denominator of which
shall be the total applicable gross leasable square footage. The amount of
the initial monthly Insurance Escrow Payment will be as specified in the
Basic Lease Information.
C. Tenant shall, throughout the Lease Term, at its own expense, procure and
maintain in full force and effect: (a) A policy of comprehensive general
liability insurance, including a contractual liability endorsement covering
Tenant's obligations under the paragraph captioned "Indemnification",
insuring against claims of bodily injury and death or property damage or
loss with a combined single limit at the Commencement Date of this Lease of
not less than Three Million Dollars ($3,000,000.00), which limit shall be
reasonably increased during the Lease Term at Landlord's request to reflect
both increases in liability exposure arising from inflation as well as from
changing use of the Premises or changing legal liability standards, which
policy shall be payable on an "occurrence" rather than a "claims made"
basis, and which policy names Landlord and manager and, at Landlord's
request Landlord's mortgage lender(s) or investment advisors, as additional
insureds; (b) A policy of extended property insurance (which is commonly
called "all risk") covering Tenant Improvements, Tenant Alterations, and
any and all furniture, fixtures, equipment, inventory, improvements and
other property in or about the Premises which is not owned by Landlord, for
one hundred percent (100%) of the then current replacement value of such
property; and (c) Business interruption insurance in an amount sufficient
to cover costs, damages, lost income, expenses, Base Rent, additional rent
and all other sums payable under this Lease, should any or all of the
Premises not be usable for a period of up to twelve (12) months. All
insurance policies required under this paragraph shall be with companies
reasonably approved by Landlord authorized to do business in the State of
Oregon and each policy shall provide that it is not subject to cancellation
or reduction in coverage except after thirty (30) days' written notice to
Landlord. Tenant shall deliver to Landlord and, at Landlord's request
Landlord's mortgage lender(s), prior to the Commencement Date and from time
to time thereafter, certificates evidencing the existence and amounts of
all such policies. If Tenant fails to acquire or maintain any insurance or
provide any certificate required by this paragraph, Landlord may, but shall
not be required to, obtain such insurance or certificates and the costs
associated with obtaining such insurance or certificates shall be payable
by Tenant to Landlord on demand. Such policies shall be primary insurance
(and not "excess over" or contributory with any other valid, existing and
applicable insurance in force for or on behalf of Landlord) and such
policies shall not eliminate cross-liability and shall contain a
severability of interest clause. Certified copies of such policies,
together with receipt evidencing payment of premiums therefor, shall be
delivered to Landlord prior to the commencement date of this Lease. Not
less than fifteen (15) days prior to the expiration date of any such
policies, certified copies of the renewals thereof (bearing notations
evidencing the payment of renewal premiums) shall be delivered to Landlord.
D. If the building of which the Premises are a part should be damaged or
destroyed by fire, tornado or other casualty, Tenant shall give immediate
written notice thereof to Landlord.
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E. If the building of which the Premises are a part should be totally
destroyed by fire, tornado or other casualty, or if it should be so damaged
thereby that rebuilding or repairs cannot in Landlord's estimation be
completed within two hundred (200) days after the date upon which Landlord
is notified by Tenant of such damage, this Lease shall, at the option of
Landlord, terminate and the rent shall be abated during the unexpired
portion of this Lease, effective upon the date of the occurrence of such
damage. Landlord shall give notice to Tenant in writing of its
determination to terminate this Lease within ninety (90) days following the
date of the occurrence of such damage.
F. If the building of which the Premises are a part should be damaged only
to such extent that rebuilding or repairs can in Landlord's estimation be
completed within two hundred (200) days after the date upon which Landlord
is notified by tenant of such damage, this Lease shall not terminate, and
Landlord shall at its sole cost and expense (but only to the extent of
insurance proceeds received by Landlord) thereupon proceed with reasonable
diligence to rebuild and repair such building to substantially the
condition in which it existed prior to such damage, except that Landlord
shall not be required to rebuild, repair or replace any part of the
partition, fixtures, additions, and other improvements which may have been
placed in, or about the Premises by Tenant. If the Premises are
untenantable in whole or in part following such damage, the rent payable
hereunder during the period in which they are untenantable shall be reduced
to such extent the Premises are unusable.
G. Notwithstanding anything herein to the contrary, in the event the holder
of any indebtedness secured by a mortgage or deed of trust covering the
Premises requires that the insurance proceeds be applied to such
indebtedness, then Landlord shall have the right to terminate this Lease by
delivering written notice of termination to Tenant within fifteen (15) days
after such requirement is made by any such holder, whereupon all rights and
obligations hereunder shall cease and terminate, except that Tenant shall
remain liable to Landlord for the payment of any rents or other charges
already accrued.
H. Each of Landlord and Tenant hereby releases the other from any loss or
damage to property caused by fire or any other perils insured through or
under them by way of subrogation or otherwise for any loss or damage to
property caused by fire or any other perils insured in policies of
insurance covering such property, even if such loss or damage shall have
been caused by the fault or negligence of the other party, or anyone for
whom such party may be responsible; provided, however, that this release
shall be applicable and in force and effect only with respect to loss or
damage occurring during such times as the releasor's policies shall contain
a clause or endorsement to the effect that any such release shall not
adversely affect or impair said policies or prejudice the right of the
releasor to recover there under and then only to the extent of the
insurance proceeds payable under such policies. Each of the Landlord and
Tenant agrees that it will request its insurance carriers to include in its
policies such a clause or endorsement. If extra cost shall be charged
therefor, each party shall advise the other thereof and of the amount of
the extra cost, and the other party, at its election, may pay the same, but
shall not be obligated to do so.
14. LIABILITY. Landlord shall not be liable to Tenant or Tenant's employees,
agents, servants, guests, invitees, licensees, or visitors, or to any other
person whomsoever, for any injury to person or damage to property on or
about the Premises, resulting from and/or caused in part or whole by the
act, omission, negligence or misconduct of Tenant, its employees, agents,
servants, guests, invitees, licensees, or visitors, or of any other person
entering upon the Premises, or caused by the building and improvements
located on the Premises becoming out of repair, or caused by leakage of
gas, oil, water or steam or by electricity emanating from the Premises, or
due to any cause whatsoever, and Tenant hereby covenants and agrees that it
will at all times indemnify, protect, defend and hold safe and harmless the
property, the Landlord (including, without limitation, the trustee and
beneficiaries if Landlord is a trust), Landlord's employees, agents,
servants, guests, invitees, licensees and visitors (collectively, the
"Indemnified Parties") from any loss, liability, claims, suits, costs,
expenses, including, without limitation, attorneys' fees, and damages, both
real and alleged, arising out of: (a) the use or occupancy of the Premises,
(b) any failure of Tenant to comply with the terms of this Lease, and (c)
the acts or omissions of Tenant and its employees, agents, servants,
guests, invitees, licensees and visitors; except injury to persons or
damage to property the sole cause of which is the gross negligence of
Landlord. In no event shall the Indemnified Parties be liable for
consequential damages. If and to the extent that Tenant is obligated to
indemnify, defend or hold harmless Landlord or Landlord's agents from any
claims arising from its use of the Premises or any act or failure to act by
Tenant or Tenant's Agents or otherwise, Tenant expressly waives, to and in
favor of Landlord and Landlord's agents, its statutory workers compensation
act employers immunity relative to any injury to an employee or employees
of Tenant.
15. CONDEMNATION.
A. If the whole or any substantial part of the Premises should be taken for
any public or quasi-public use under governmental law, ordinance or
regulation, or by right of eminent domain, or by private purchase in lieu
thereof and the taking would prevent or materially interfere with the use
of the Premises for the purpose for which they are being used as determined
by Landlord, this Lease shall terminate and the rent shall be abated during
the unexpired portion of this Lease, effective when the physical taking of
said Premises shall occur.
B. If part of the Premises shall be taken for any public or quasi-public
use under any governmental law, ordinance or regulation, or by right of
eminent domain, or by private purchase in lieu thereof, and this Lease is
not terminated as provided in Subparagraph 15(A), this Lease shall not
terminate but the rent payable hereunder during the unexpired portion of
this Lease shall be reduced to such extent as the Premises are not useable.
C. In the event of any such taking or private purchase in lieu thereof,
Landlord shall be entitled to receive the entire award, Tenant shall be
entitled to make a claim for a separate award for Tenant's
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relocation expenses in any condemnation proceedings so long as Tenant's
claim does not reduce the amount of Landlord's award.
16. HOLDING OVER. Tenant will, at the termination of this Lease by lapse of
time or otherwise, yield up immediate possession to Landlord. If Landlord
agrees in writing that Tenant may hold over after the expiration or
termination of this Lease, unless the parties hereto otherwise agree in
writing on the terms of such holding over, the hold over tenancy shall be
subject to termination by Landlord at any time upon not less than five (5)
days advance written notice, or by Tenant at any time upon not less than
thirty (30) days advance written notice, and all of the other terms and
provisions of this Lease shall be applicable during that period, except
that Tenant shall pay Landlord from time to time upon demand, as rental for
the period of any hold over, an amount equal to one and one-half (1-1/2)
the Monthly Base Rent in effect on the termination date, plus all
additional rental as defined herein, computed on a daily basis for each day
of the hold over period. No holding over by Tenant, whether with or without
consent of Landlord, shall operate to extend this Lease except as otherwise
expressly provided. The preceding provisions of this Paragraph 16 shall not
be construed as Landlord's consent for Tenant to hold over.
17. QUIET ENJOYMENT. In the event this Lease is a sublease, then Tenant agrees
to take the Premises subject to the provisions of the prior leases.
Landlord covenants that Tenant, upon paying the rental herein set forth and
performing its other covenants and agreements herein set forth, shall
peaceably and quietly have, hold and enjoy the Premises for the term hereof
without hindrance from Landlord, subject to the terms and provisions of
this Lease.
18. EVENTS OF DEFAULT. The following events shall be deemed to be events of
default by Tenant under this Lease:
A. Tenant shall fail to pay any installment of the rent herein reserved
when due, or any payment with respect to taxes hereunder when due, or any
other payment or reimbursement to Landlord required herein when due, and
such failure shall continue for a period of five (5) days from the date
such payment was due.
B. 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 an involuntary petition of
bankruptcy and failure of Tenant to secure a dismissal of the petition
within thirty (30) days after filing; 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. If Tenant consists of two or more individuals or business
entities, the events of default specified in this Paragraph 18 shall apply
to each individual unless, within ten (10) days after the event of default
occurs, the remaining individuals produce evidence satisfactory to Landlord
that they have unconditionally acquired the interest of the one causing the
default. If this Lease has been assigned, the events of default so
specified shall apply only with respect to the one then exercising the
rights of Tenant under this Lease.
C. Tenant shall vacate or abandon any substantial portion of the
Premises. Failure of Tenant for ten (10) days or more to occupy the
Premises for one or more of the purposes permitted under this Lease, unless
such failure is excused under other provisions of this Lease, shall be an
abandonment of the property.
D. If any information furnished by or on behalf of Tenant to Landlord in
connection with the entry of this Lease is determined to have been
materially false, misleading or incomplete when made.
E. Tenant shall fail to comply with any term, provision, condition or
covenant of this Lease (other than the foregoing in this Paragraph 18), and
shall not cure such failure within twenty (20) days after written notice
thereof to Tenant. 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. Landlord shall not be required
to give such written notice more than once during any single twelve (12)
month period for the failure to perform the same covenant and upon the
second failure, Landlord may, at its option, deem such failure as an
automatic event of default, without notice to Tenant.
19. REMEDIES. Upon the occurrence of any such events of default described in
Paragraph 18 hereof, Landlord shall have the option to pursue any one or
more of the following remedies without any notice or demand whatsoever.
A. Landlord may accelerate all rent payments due hereunder, the present
value of which shall then become immediately due and payable.
B. Terminate this Lease, in which event Tenant shall immediately
surrender the Premises to Landlord, and if Tenant fails so to do, Landlord
may, without prejudice to any other remedy which it may have for possession
or arrearages in rent, enter upon and take possession of the Premises and
expel or remove Tenant and any other person who may be occupying such
Premises or any part thereof, by force if necessary, without being liable
for prosecution or any claim of damages therefor, and Tenant shall pay to
Landlord on demand the amount of all loss and damage which Landlord may
suffer by reason of such termination, whether through inability to relet
the Premises on satisfactory terms or otherwise. Landlord's right to any
and all damages shall survive termination of the lease.
C. Enter upon and take possession of the Premises and expel or remove
Tenant and any other person who may be occupying such Premises or any part
thereof, by force if necessary, without being liable for prosecution or any
claim for damages therefor, and relet the Premises for such terms ending
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before, on or after the expiration date of the Lease Term, at such rentals
and upon such other conditions (including concessions and prior occupancy
periods) as Landlord in its sole discretion may determine, and receive the
rent therefor; and Tenant agrees to pay to the Landlord on demand any
deficiency that may arise by reason of such reletting together with all
costs incurred by Landlord in connection with such reletting. Landlord
shall have no obligation to relet the Premises or any part thereof in
advance of any other available space controlled by Landlord and shall not
be liable for refusal or failure to relet or in the event of reletting for
refusal or failure to collect any rent due upon such reletting. In the
event Landlord is successful in reletting the Premises at a rental in
excess of that agreed to be paid by Tenant pursuant to the terms of this
Lease, Landlord and Tenant each mutually agree that Tenant shall not be
entitled, under any circumstances, to such excess rental, and Tenant does
hereby specifically waive any claim to such excess rental.
D. Enter upon the Premises, by force if necessary, without being liable
for prosecution or any claim for damages therefor, and do whatever Tenant
is obligated to do under the terms of this Lease; and Tenant agrees to
reimburse Landlord on demand for any expenses which Landlord may incur in
thus effecting compliance with Tenant's obligations under this Lease, and
Tenant further agrees that Landlord shall not be liable for any damages
resulting to the Tenant from such action, whether caused by the negligence
of Landlord or otherwise.
E. Whether or not Landlord retakes possession or relets the Premises,
Landlord shall have the right to recover unpaid rent and all damages caused
by Tenant's default, including attorney's fees. Damage shall include,
without limitation: all rentals lost; all legal expenses and other related
costs incurred by Landlord following Tenant's default; all costs incurred
by Landlord in restoring the Premises to good order and condition, or in
remodeling, renovating or otherwise preparing the Premises for reletting;
all costs, including, without limitation, any brokerage commissions; and
the value of Landlord's time; plus interest thereon at the rate of eighteen
percent (18%) per annum from the date of expenditure until fully repaid.
F. In the event Tenant fails to pay any installment of rent, additional
rent or other charges hereunder as and when such installment is due, to
help defray the additional cost to Landlord for processing such late
payments Tenant shall pay to Landlord on demand a late charge in an amount
equal to five percent (5%) of such installment. The provision for such late
charge shall be in addition to all of Landlord's other rights and remedies
hereunder or at law and shall not be construed as liquidated damages or as
limiting Landlord's remedies in any manner. The parties agree that such
late charge is a reasonable amount to defray Landlord's costs arising out
of Tenant's late payment.
G. Landlord may sue periodically to recover damages during the period
corresponding to the remainder of the Lease Term, and no action for damages
shall bar a later action for damages subsequently accruing.
H. Pursuit of any of the foregoing remedies shall not preclude pursuit of
any of the other remedies herein provided or any other remedies provided by
law, such remedies being cumulative and nonexclusive, nor shall pursuit of
any remedy herein provided constitute a forfeiture or waiver of any rent
due to Landlord hereunder or of any damages accruing to Landlord by reason
of the violation of any of the terms, provisions, conditions, and covenants
herein contained. No act or thing done by Landlord or its agents shall be
deemed a termination of this Lease or an acceptance of the surrender of the
Premises, and no agreement to terminate this Lease or accept a surrender of
the Premises shall be valid unless in writing signed by Landlord. No waiver
by Landlord of any violation or breach of any of the terms, provisions and
covenants herein contained shall be deemed or construed to constitute a
waiver of any other violation or breach of any of the terms, provisions,
conditions, and covenants herein contained. Landlord's acceptance of the
payment of rental or other payments hereunder after the occurrence of an
event of default shall not be construed as a waiver of such default, unless
Landlord so notifies Tenant in writing. Forbearance by Landlord to enforce
one or more of the remedies herein provided upon an event of default shall
not be deemed or construed to constitute a waiver of such default or of
Landlord's right to enforce any such remedies with respect to such default
or any subsequent default.
20. ATTORNEY'S FEES. In the event it becomes necessary for either party to
enforce any rights incident to this Lease, in a court of law or equity, the
prevailing party shall be entitled to recover reasonable attorney's fees
(including those on appeal) in addition to damages or other appropriate
relief. If Landlord places any amounts owing under this Lease in the hands
of an attorney or other party for collection or enforcement of the
covenants contained herein, as a consequence of a default, as defined
herein, the party in default agrees to pay reasonable fees and expenses so
incurred, even though no suit or action is instituted.
21. LANDLORD'S LIEN. In addition to any statutory lien for rent in Landlord's
favor, Landlord shall have and Tenant hereby grants to Landlord a
continuing security interest for all rentals and other sums of money
becoming due hereunder from Tenant, upon all goods, wares, equipment,
fixtures, furniture, inventory, accounts, contract rights, chattel paper
and other personal property of Tenant situated on the Premises, and such
property shall not be removed therefrom without the consent of Landlord
until all arrearages in rent as well as any and all other sums of money
then due to Landlord hereunder shall first have been paid and discharged.
In the event of a default under this Lease, Landlord shall have, in
addition to any other remedies provided herein or by law, all rights and
remedies under the Uniform Commercial Code or other applicable law,
including, without limitation, the right to sell the property described in
this Paragraph 21 at public or private sale. Tenant hereby agrees to
execute such financing statements and other instruments necessary or
desirable in Landlord's discretion to perfect the security interest hereby
created. Any statutory lien for rent is not hereby waived, the express
contractual lien herein granted being in addition and supplementary
thereto.
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22. MORTGAGES. Tenant accepts this Lease subject and subordinate to any
mortgage(s) and/or deed(s) of trust now or at any time hereafter
constituting a lien or charge upon the Premises or the improvements
situated thereon; provided, however, that if the mortgagee, trustee, or
holder of any such mortgage or deed of trust elects to have Tenant's
interest in this Lease superior to any such instrument, then by notice to
Tenant from such mortgagee, trustee or holder, this Lease shall be deemed
superior to such lien, whether this Lease was executed before or after said
mortgage or deed of trust. This provision shall be self operative, and no
further instrument of subordination shall be necessary. In confirmation
thereof, Tenant shall at any time hereafter on demand execute any
instruments, releases or other documents which may be required by any
mortgagee for the purpose of subjecting and subordinating this Lease to the
lien of any such mortgage and confirming such other information as such
mortgagee may reasonably require. Upon written request, Tenant shall
provide Landlord with financial statements certified by Tenant as accurate
and up to date, showing with reasonable detail Tenant's financial
condition.
23. BROKER'S COMMISSIONS. Except for N/A ("Tenant's Broker"), Tenant
---------------
represents and warrants that it has not engaged any broker, agent or finder
who would be entitled to any commission or fee in connection with the
negotiation and execution of this Lease. Tenant shall indemnify, protect,
defend and hold the Indemnified Parties harmless against any and all claims
for any brokerage commissions and all costs, expenses and liabilities in
connection therewith, including attorneys' fees and expenses arising out of
any charge or claim for a commission or fee by any broker, agent or finder
on the basis of any agreements made or alleged to have been made by or on
behalf of Tenant except for Tenant's Broker and any brokers with whom
Landlord has an express written brokerage agreement.
24. CONSTRUCTION LIENS. Tenant shall have no authority, express or implied, to
create or place any lien or encumbrance of any kind or nature whatsoever
upon, or in any manner to bind, the Premises or to charge the rentals
payable hereunder for any claim in favor of any person dealing with Tenant,
including those who may furnish materials or perform labor for any
construction or repairs. Tenant covenants and agrees that it will pay or
cause to be paid all sums legally due and payable by it on account of any
labor performed or materials furnished in connection with any work
performed on the Premises on which any lien is or can be validly and
legally asserted against its leasehold interest in the Premises or the
improvements thereon and that it will indemnify, protect, defend and hold
the Indemnified Parties harmless from any and all claims, liabilities,
losses, costs or expenses (including attorneys' fees) based on or arising
out of asserted claims or liens against the right, title and interest of
the Landlord in the Premises or under the terms of this Lease.
25. NOTICES. Each provision of this instrument or of any applicable
governmental laws, ordinances, regulations and other requirements with
reference to the sending, mailing or delivery of any notice or the making
of any payment by Landlord to Tenant or with reference to the sending,
mailing or delivery of any notice or the making of any payment by Tenant to
Landlord shall be deemed to be complied with when and if the following
steps are taken:
A. All rent and other payments required to be made by Tenant to Landlord
hereunder shall be payable to Landlord at the address herein below set
forth or at such other address as Landlord may specify from time to time by
written notice delivered in accordance herewith. Tenant's obligation to pay
rent and any other amounts to Landlord under the terms of this Lease shall
not be deemed satisfied until such rent and other amounts have been
actually received by Landlord.
B. All payments required to be made by Landlord to Tenant hereunder shall
be payable to Tenant at the address herein below set forth, or at such
other address within the continental United States as Tenant may specify
from time to time by written notice delivered in accordance herewith.
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C. Any notice or document required or permitted to be delivered hereunder
shall be deemed to be delivered whether actually received or not when
deposited in the United States Mail, postage prepaid, Certified or
Registered Mail, addressed to the parties hereto at the respective
addresses set out below, or at such other address as they have theretofore
specified by written notice delivered in accordance herewith:
LANDLORD: TENANT:
RIGGS & COMPANY, a division of HOMEGROCER.COM, INC.,
RIGGS BANK N.A., as trustee of the a Washington corporation
Multi-Employer Property Trust 10230 NE Points Drive
Kirkland, Washington 98033-7879
c/o Trammell Crow Company
8930 SW Gemini Drive
Beaverton, Oregon 97008-7123
If and when included within the term "Landlord", as used in this
instrument, there are more than one person, firm or corporation, all shall
jointly arrange among themselves for their joint execution of such a notice
specifying some individual at a specific address for the receipt of notices
and payments to Landlord. If and when included within the term "Tenant", as
used in this instrument, there are more than one person, firm or
corporation, all shall jointly arrange among themselves for their joint
execution of such a notice specifying some individual at a specific address
within the continental United States for the receipt of notices and
payments to Tenant. All parties included within the terms "Landlord" and
"Tenant", respectively, shall be bound by notices given in accordance with
the provisions of this paragraph to the same effect as if each had received
such notice.
26. MISCELLANEOUS.
A. Words of any gender used in this Lease shall be held and construed to
include any other gender, and words in the singular number shall be held to
include the plural, unless the context otherwise requires.
B. The terms, provisions and covenants and conditions contained in this
Lease shall apply to, inure to the benefit of, and be binding upon, the
parties hereto and upon their respective heirs, legal representatives,
successors and permitted assigns, except as otherwise herein expressly
provided. Landlord shall have the right to assign any of its rights and
obligations under this Lease.
C. Each party agrees to furnish to the other, promptly upon demand, a
corporate resolution, proof of due authorization by partners, or other
appropriate documentation evidencing the due authorization of such party to
enter into this Lease. If Tenant is a partnership, company, corporation or
other entity, each individual executing this Lease on behalf of Tenant
represents and warrants to Landlord that he or she is duly authorized to so
execute and deliver this Lease and that all partnership, company,
corporation or other entity actions and consents required for execution of
this Lease have been given, granted or obtained.
D. The captions inserted in this Lease are for convenience only and in no
way define, limit or otherwise describe the scope or intent of this Lease,
or any provision hereof, or in any way affect the interpretation of this
Lease.
E. Tenant agrees from time to time within ten (10) days after request of
Landlord, to deliver to Landlord, or Landlord's designee, an estoppel
certificate stating that this Lease is in full force and effect, the date
to which rent has been paid, the unexpired term of this Lease and such
other matters pertaining to this Lease as may be requested by Landlord,
Landlord's lender, a prospective lender or a prospective purchaser. It is
understood and agreed that Tenant's obligation to furnish such estoppel
certificates in a timely fashion is a material inducement for Landlord's
execution of this Lease. If Tenant fails to respond within ten (10)
business days of its receipt of a written request by Landlord as provided
in this paragraph, such shall be a breach of this Lease and Tenant shall be
deemed to have admitted the accuracy of any information supplied by
Landlord to a prospective purchaser, mortgagee or assignee. The estoppel
certificate Tenant shall be required to execute may be in, but is not
limited to, the form attached hereto and incorporated herein by this
reference as Exhibit D.
(a) the date this Lease was executed and the date it expires; (b) the date
Tenant entered into occupancy of the Premises; (c) the amount of monthly
Base Rent and Additional Rent and the date to which such Base Rent and
Additional Rent have been paid; and (d) certifying that (1) this Lease is
in full force and effect and has not been assigned, modified, supplemented
or amended in any way (or specifying the date of the agreement so affecting
this Lease); (2) Landlord is not in breach of this Lease (or, if so, a
description of each such breach) and that no event, omission or condition
has occurred which would result, with the giving of notice or the passage
of time, in a breach of this Lease by Landlord; (3) this Lease represents
the entire agreement between the parties with respect to the Premises; (4)
all required contributions by Landlord to Tenant on account of Tenant
Improvements have been received; (5) on the date of execution, there exist
no defenses or offsets which the Tenant has against the enforcement of this
Lease by the Landlord; (6) no Base Rent, Additional Rent or other sums
payable under this Lease have been paid in advance except for Base Rent and
Additional Rent for the then current month; (7) no security has been
deposited with Landlord (or, if so, the amount of such security); (8) it is
intended that any Tenant's statement may be relied upon by a prospective
purchaser or mortgagee of Landlord's interest or an assignee of any such
mortgagee; (9) the representations in the paragraph captioned
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<PAGE>
"ERISA Representations" remain true and correct; and (10) such other
---------------------
information as may be reasonably requested by Landlord.
F. This Lease may not be altered, changed, modified or amended except by
an instrument in writing signed by both parties hereto. Notwithstanding
anything contained in the Lease to the contrary, including without
limitation, Landlord's agents, only officers of Riggs Bank N.A., are
authorized to amend, renew or terminate this Lease, or to compromise any of
Landlord's claims under this Lease or to bind Landlord in any manner.
Without limiting the effect of the previous sentence, no property manager
or broker shall be considered an authorized agent of Landlord to amend,
renew or terminate this Lease or to compromise any of Landlord's claims
under this Lease or to bind Landlord in any manner
G. All indemnity obligations and all other obligations of Tenant
hereunder not fully performed as of the expiration or earlier termination
of the term of this Lease shall survive the expiration or earlier
termination of the Term hereof, including, without limitation, all payment
obligations with respect to taxes and insurance and all obligations
concerning the condition of the Premises. Upon the expiration or earlier
termination of the Term hereof, and prior to Tenant vacating the Premises,
Tenant shall pay to Landlord any amount reasonably estimated by Landlord as
necessary to put the Premises, including, without limitation, all heating
and air conditioning systems and equipment therein, in good condition and
repair pursuant to Paragraph 10(B) hereof. Tenant shall also, prior to
vacating the Premises, pay to Landlord the amount, as estimated by
Landlord, of Tenant's obligation hereunder for real estate taxes and
insurance premiums for the year in which the Lease expires or terminates.
All such amounts shall be used and held by Landlord for payment of such
obligations of Tenant hereunder, with Tenant being liable for any
additional costs therefor upon demand by Landlord, or with any excess to be
returned to Tenant after all such obligations have been determined and
satisfied, as the case may be. Any security deposit held by Landlord shall
be credited against the amount payable by Tenant under this Paragraph
26(G).
H. If any clause or provision of this Lease is illegal, invalid or
unenforceable under present or future laws effective during the Term of
this Lease, then and in that event, it is the intention of the parties
hereto that the remainder of this Lease shall not be affected thereby, and
it is also the intention of the parties to this Lease that in lieu of each
clause or provision of this Lease that is illegal, invalid or
unenforceable, there be added as part of this Lease contract a clause or
provision as similar in terms to such illegal, invalid or unenforceable
clause or provision as may be possible and be legal, valid and enforceable.
I. Because the Premises are on the open market and are presently being
shown, this Lease shall be treated as an offer with the Premises being
subject to prior lease and such offer subject to withdrawal or
non-acceptance by Landlord or to other use of the Premises without notice,
and this Lease shall not be valid or binding unless and until accepted by
Landlord in writing and a fully executed copy delivered to both parties
hereto.
J. All references in this Lease to "the date hereof" or similar
references shall be deemed to refer to the last date, in point of time, on
which all parties hereto have executed this Lease.
K. Tenant represents to Landlord that with the exception of this Lease,
neither the Tenant nor any affiliate of the Tenant is a tenant under a
lease or any other tenancy arrangement (1) with (a) Riggs & Company, a
division of Riggs Bank N.A., as trustee of the Multi-Employer Property
Trust; (b) The Riggs Bank N.A., as trustee of the Multi-Employer Property
Trust; (c) the Multi-Employer Property Trust; (d) the National Bank of
Washington Multi-Employer Property Trust, the previous name of the
Multi-Employer Property Trust; (e) The Riggs National Bank of Washington,
D.C., as trustee of the Multi-Employer Property Trust; (f) Alameda
Industrial Properties Joint Venture; (g) Harman International Business
Campus Joint Venture; (h) Beaverton-Redmond Tech Properties; (i) Corporate
Drive Corporation as trustee of the Corporate Drive Nominee Realty Trust;
(j) Goldbelt Place Joint Venture; (k) BOCA 1515, a joint venture; (l)
Arboretum Lakes-I, L.L.C., a Delaware limited liability company; (m)
Village Green of Rochester Hills Associates, L.L.C.; (n) Pine Street
Development, L.L.C.; or (o) MEPT Realty LLC; or (2) involving any property
in which any one or more of the entities named in clauses (1) (a) through
(d) are known by the Tenant to have an ownership interest.
L. Tenant shall not, and shall not cause or allow any other party to,
construct, use, deposit, store, dispose, place, or locate on or about the
Premises or the Project any hazardous substances (as later defined) without
the prior written consent of Landlord, which shall not be unreasonably
withheld as long as Tenant demonstrates to Landlord's reasonable
satisfaction that: (a) the nature and quality of any hazardous material is
necessary, useful, and appropriate to Tenant's business conducted at the
Premises; (b) the hazardous material will be used, kept, and stored with
the highest degree of care and in a manner that complies with all
governmental laws, ordinances, regulations, orders, and policies regulating
any such hazardous material so brought upon or used or kept in or about the
Premises; (c) such hazardous substances are disposed of off the Premises
and the Project, in a disposal site licensed or designated for such
hazardous substances, with the utmost care and caution and in a manner
consistent with applicable governmental laws, ordinances, regulations,
orders and policies; (d) Tenant pays as additional rent any increase in the
premiums charged Landlord for insurance coverage by reason of Tenant's
storage, placement, location, or use of hazardous substances or any
premiums for additional insurance coverages deemed appropriate by Landlord
because of the presence of such hazardous substances; and (e) Tenant
procures any insurance coverages demanded by Landlord and naming the
Landlord and such other parties as Landlord requires as additional
insureds.
Tenant shall indemnify, defend, and hold the Indemnified Parties harmless
from any and all claims, judgments, damages, penalties, fines, costs,
liabilities, or losses (including, without limitation, diminution in value
of the Premises, damages for the loss or restriction on use of rentable or
usable space or of any
14
<PAGE>
amenity of the Premises, damages arising from any adverse impact on
marketing of space, and sums paid in settlement of claims, attorneys' fees,
consultant fees, and expert fees) which arise during or after the Lease
Term as a result of contamination to the Premises by hazardous substances
during the term of this Lease or to the Property as a result of an act or
omission of Tenant, and Tenant's agents or employees. This indemnification
of Landlord by Tenant includes, without limitation, 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 because of hazardous
substances present in the soil or ground water on or under the Premises.
Without limiting the foregoing, if the presence of any hazardous substances
on the Premises occurs during the term of this Lease, Tenant shall promptly
take all actions at its sole expense as are necessary to return the
Premises to the condition existing prior to the release of any such
hazardous substances to the Premises, 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 long-term or short-term effect on the Premises. The
foregoing indemnity shall survive the expiration or earlier termination of
this Lease.
The term "hazardous substances" shall include (a) any chemical, material,
element, compound, solution, mixture, substance, or other matter of any
kind whatsoever which Is a hazardous substance as defined in, or related by
the Federal Comprehensive Environmental Response Compensation and Liability
Act, 42 USC ss.9601 et seq., as amended; the regulations promulgated from
time to time thereunder; the wastes listed in the United States Department
of Transportation Hazardous Materials Table (49 CFR 172.101); the United
States Environmental Protection Agency Hazardous Substances (40 CFR Part
302), and amendments thereto; environmental laws and regulations
administered by the Environmental Protection Agency or its delegees;
similar laws and regulations of the State of Oregon, City of Tualatin, or
any state or local governmental organization or agency, or additional or
substitute laws or regulations with respect to the same subject matter
enacted or promulgated by the federal, state, local, or quasi-governmental
organization or agency; and (b) asbestos or materials containing asbestos,
petroleum products, or such other substances, materials, and wastes that
are or become regulated under the applicable local, state, or federal laws,
whether or not within clause (a).
M. This Lease shall be governed by and construed in accordance with the
laws of the State of Oregon.
N. For any litigation, action or dispute arising out of or in connection
with the agreement, the matter shall be tried and determined by a judge
alone, WITHOUT A JURY. All parties shall submit to the jurisdiction of an
appropriate court in the State of Oregon, with venue in the County of
Washington. Tenant irrevocably consents to the service of process of any
action or proceeding at the address of the Premises.
O. If Tenant fails to perform any obligation under this Lease, Landlord
shall have the option to do so after thirty (30) days written notice to
Tenant. All of Landlord's expenditures to correct the default shall be
reimbursed by Tenant on demand with interest at a rate of one and one-half
percent (1-1/2%) per month from the date of expenditure by Landlord.
P. If Tenant shall request Landlord's consent under this Lease and
Landlord shall fail or refuse to give such consent, Tenant shall not be
entitled to any damages for any withholding by Landlord of its consent.
Tenant's sole remedy shall be an action for specific performance or
injunction and that remedy shall be available only in those instances where
Landlord has expressly agreed in writing not to unreasonably withhold
Landlord's consent. Q. This Lease shall not be recorded without the consent
in writing of Landlord. If Landlord consents, Landlord shall execute and
acknowledge a memorandum of this Lease in a form suitable for recording,
and Tenant may record the memorandum.
R. This Lease contains the entire agreement between the parties
concerning the subject matter and supersedes any prior agreements or
understandings related thereto. There are merged herein all prior and
collateral representations, promises, and conditions in connection with the
subject matter hereof. This Lease supersedes and is in lieu of all existing
agreements or arrangements between the parties relating to the Premises
identified herein.
S. No payment by Tenant or receipt by Landlord of an amount less than the
Base Rent or additional rent or any other sum due and payable under this
Lease shall be deemed to be other than a payment on account of the Base
Rent, additional rent or other such sum, nor shall any endorsement or
statement on any check or any letter accompanying any check or payment be
deemed an accord and satisfaction, nor preclude Landlord's right to recover
the balance of any amount payable or Landlord's right to pursue any other
remedy provided in this Lease or at law.
T. The waiver by Landlord of any covenant or condition contained in this
Lease shall not be deemed to be a waiver of any subsequent breach of such
covenant or condition nor shall any custom or practice which may develop
between the parties in the administration of this Lease be construed to
waive or lessen the rights of Landlord to insist on the strict performance
by Tenant of all of the covenants and conditions of this Lease. No act or
thing done by Landlord or Landlord's Agents during the Lease Term shall be
deemed an acceptance or a surrender of the Premises, and no agreement to
accept a surrender of the Premises shall be valid unless made in writing
and signed by Landlord. The mention in this Lease of any particular remedy
shall not preclude Landlord from any other remedy it might have, either
under this Lease or at law, nor shall the waiver of or redress for any
violation of any covenant or condition in this Lease or in any of the rules
or regulations attached to this Lease or later adopted by Landlord, prevent
a
15
<PAGE>
subsequent act, which would have originally constituted a violation, from
having all the force and effect of an original violation. The receipt by
Landlord of Base Rent, additional rent or any other sum payable under this
Lease with knowledge of a breach of any covenant or condition in this Lease
shall not be deemed a waiver of such breach. The failure of Landlord to
enforce any of the rules and regulations attached to this Lease or later
adopted, against Tenant or any other tenant in the Building, shall not be
deemed a waiver. Any waiver by Landlord must be in writing and signed by
Landlord to be effective.
U. In the event that Landlord shall be delayed, hindered in or prevented
from the performance of any act or obligation required under this Lease by
reason of acts of God, strikes, lockouts, labor troubles or disputes,
inability to procure or shortage of materials or labor, failure of power or
utilities, delay in transportation, fire, vandalism, accident, flood,
severe weather, other casualty, governmental requirements (including
mandated changes in the Plans and Specifications or the Tenant Improvements
resulting from changes in pertinent governmental requirements or
interpretations thereof), riot, insurrection, civil commotion, sabotage,
explosion, war, natural or local emergency, acts or omissions of others,
including Tenant, or other reasons of a similar or dissimilar nature not
solely the fault of, or under the exclusive control of, Landlord, then
performance of such act or obligation shall be excused for the period of
the delay and the period for the performance of any such act or obligation
shall be extended for the period equivalent to the period of such delay.
V. Time is of the essence with respect to the performance of every
covenant and condition of this Lease.
27. LIABILITY OF LANDLORD. Landlord has executed this Lease by its trustee
signing solely in a representative capacity. Notwithstanding anything
contained in this Lease to the contrary, Tenant confirms that the covenants
of Landlord are made and intended, not as personal covenants of the
trustee, or for the purpose of binding the trustee personally, but solely
in the exercise of the representative powers conferred upon the trustee by
its principal. Liability with respect to the entry and performance of this
Lease by or on behalf of Landlord, however it may arise, shall be asserted
and enforced only against the Landlord's estate and interest in the
Building and Landlord shall have no personal liability in the event of any
claim against Landlord arising out of or in connection with this Lease, the
relationship of Landlord and Tenant or Tenant's use of the Premises.
Further, in no event whatsoever shall any Landlord's Agent have any
liability or responsibility whatsoever arising out of or in connection with
this Lease, the relationship of Landlord and Tenant or Tenant's use of the
Premises. Any and all personal liability, if any, beyond that which may be
asserted under this paragraph, is expressly waived and released by Tenant
and by all persons claiming by, through or under Tenant.
28. ACCESS LAWS.
A. As used in this Paragraph, the term "Access Laws" shall mean the
Americans with Disabilities Act of 1990 (including the Americans with
Disabilities Act Accessibility Guidelines for Buildings and Facilities),
the Fair Housing Amendments Act of 1988, all state and local laws or
ordinances related to handicapped access, or any statute, rule, regulation,
ordinance, order of governmental bodies or regulatory agencies, or order or
decree of any court adopted or enacted with respect to any of the
foregoing. The term Access Laws shall include all Access Laws now in
existence or hereafter enacted, adopted or applicable.
B. Landlord makes no representations regarding the compliance of the
Premises or the Project with Access Laws; provided that, if any
improvements or alterations constructed by Landlord do not comply with
Access Laws, Landlord shall be responsible for correcting such defects if
and to the extent required by law.
C. Tenant agrees to notify Landlord immediately if Tenant becomes aware
of: (i) any condition or situation in or on the Premises which would
constitute a violation of any Access Laws, or (ii) any threatened or actual
lien, action or notice of the Premises not being in compliance with any
Access Laws. Tenant shall inform Landlord of the nature of any such
condition, situation, lien, action or notice and of the action Tenant
proposes to take in response thereto.
D. Tenant shall not alter or permit any assignee or subtenant or any
other person to alter the Premises in any manner which would violate any
Access Laws or increase Landlord's responsibilities for compliance with
Access Laws, without the prior approval of the Landlord. In connection with
any such approval, Landlord may require a certificate of compliance with
Access Laws from an architect, engineer or other person acceptable to
Landlord. Tenant agrees to pay the reasonable fees incurred by such
architect, engineer or other third party in connection with the issuance of
such certificate of compliance. Landlord's consent to any proposed Tenant
alteration shall (a) not relieve Tenant of its obligations or indemnities
contained in this paragraph or this Lease or (b) be construed as a warranty
that such proposed alternation complies with any Access Law.
E. Tenant shall be solely responsible for all costs and expenses relating
to or incurred in connection with bringing the Premises, the building in
which the Premises are located and the common areas of the Project into
compliance with the Access Laws if and to the extent such costs and
expenses arise out of or relate to Tenant's use of the Premises or Tenant's
modifications, improvements or alterations to the Premises after the date
of this Lease.
F. Tenant agrees to indemnify, defend, protect and hold the Indemnified
Parties harmless from and against any and all claims, demands, damages,
losses, liens, liabilities, penalties, fines, lawsuits, and other
proceedings and costs and expenses (including attorneys' fees) arising
directly or indirectly from or
16
<PAGE>
out of, or in any way connected with, any activity on or use of the
Premises or the Project by Tenant, its agents, employees, contractors,
invitees, or any subtenant or concessionaire put into possession of all or
any part of the Premises by Tenant, which activity or use results in the
Premises violating any applicable Access Laws.
G. The provisions in this Paragraph shall supersede any other provisions
in this Lease regarding Access Laws to the extent inconsistent with the
provisions of this Paragraph. The provisions in this Paragraph shall
survive the expiration of the Term or the termination of this Lease for any
other reason whatsoever.
29. ADDITIONAL PROVISIONS. None.
LANDLORD:
RIGGS & COMPANY, a division of RIGGS BANK N.A.,
as trustee of the Multi-Employer Property Trust, a trust organized under 12
C.F.R. Section 9.18
By: /s/ Leanne Tobias
___________________________________________
Name: Leanne Tobias
__________________________________________
Title: Managing Director
_________________________________________
Date: 5/11/00
__________________________________________
TENANT:
HOMEGROCER.COM, INC., a Washington D.C corporation
By: /s/ Terry Drayton
____________________________________________
Name: Terry Drayton
__________________________________________
Title: President
_________________________________________
Date: April 27, 2000
__________________________________________
17
<PAGE>
District of Columbia )
-----------------) ss.
________________)
This instrument was acknowledged before me this 15 day of May, 2000 by
Leanne Tobias, who is the Managing Director of Riggs Bank N.A., as trustee of
the Multi-Employer Property Trust.
/s/ William R. Scott
----------------------------------------
Notary Public for District of Columbia
My commission expires___________________
STATE OF WASHINGTON)
) ss.
County of King )
This instrument was acknowledged before me this 27th day of April, 2000 by
J. Terrence Drayton, who is the President of HomeGrocer.com, Inc., a Washington
Corporation.
/s/ Ursula M. Lazo
------------------------------------------
Notary Public for Kirkland, WA
My commission expires 8-4-2003
18
<PAGE>
EXHIBIT A
------- -
[Site map of the premises]
<PAGE>
EXHIBIT B
---------
Legal Description
A tract of land situated in the S.W. 1/4 of Section 23, T2S, R1W, W.M., City of
Tualatin, Washington County, Oregon, being more particularly described as
follows:
Commencing at the south 1/4 corner of said Section 23; thence, along the east
line of the southeast quarter of the southwest quarter of said Section 23, North
0(degree)15'13" West, 32.89 feet to the true point of beginning; thence, along
the south line of that tract of land conveyed to Earl J. Itel, recorded July 16,
1969, in book 750, Page 279, South 89(degree)37'46" West, 1292.79 feet to the
southwest corner of said Itel tract; thence, along the west line of said Itel
tract, North 0(degree)01'38" East, 141.35 feet to a point on the southerly
right-of-way line of the Burlington Northern Railroad (formerly Spokane,
Portland, and Seattle Railroad); thence, along said southerly right-of-way,
being 25.00 feet from the centerline of the tracks, when measured at right
angles, North 56(degree)01'15" East, 483.57 feet; thence, continuing along said
right-of-way and along the arc of a 165.0 foot offset spiral curve to the right,
offset 25.0 southerly, having a centerline angle of 2(degree)28'30", (chord
bears North 57(degree)01'09" east, 163.90 feet) to a point of spiral to curve;
thence, continuing along said right-of-way and along the arc of a 1884.86 foot
radius curve to the right, through a central angle of 20(degree)33'00" (chord
bears North 68(degree)46'15" East, 672.42 feet) a distance of 676.03 feet to a
point of curve to spiral; thence, along the arc of a 165.0 foot offset spiral
curve to the right, offset 25.0 feet southerly, having a centerline spiral angle
of 2(degree)28'30" (chord bears North 80(degree)31'21" East, 163.90 feet), to a
point of spiral; thence, North 81(degree)31'15" East, 48.67 feet to a point on
the east line of that tract of land conveyed by deed to Earl J. Itel, recorded
in Book 750, Page 279, Washington county Deed Records; thence, along the east
line of said Itel tract, South 0(degree)07'32" West, 100.00 feet to the
southeast corner thereof; thence, along the south line of said Itel tract, North
89(degree)52'28" West, 85.12 feet to a point on the east line of the southeast
quarter of the southwest quarter of said Section 23; thence, along said east
line, South 0(degree)15'13" East, 593.31 feet; thence, South 44(degree)17'29"
East, 107.89 feet to a point that is 30.00 feet, when measured at right angles,
from the south line of said 1/4 of said Section 23; thence, parallel with the
south line of said N.E. 1/4, South 89(degree)29'45" West, 75.00 feet to a point
on the west line of said N.E. 1/4; thence, along said West line, North
0(degree)15'13" West, 2.89 feet to the true point of beginning.
Contains 677,845 square feet (15.56 acres).
<PAGE>
EXHIBIT C
------- -
This Exhibit C is intentionally left blank.
<PAGE>
EXHIBIT D
TO TUALATIN
TUALATIN CORPORATE CENTER
TENANT'S ESTOPPEL CERTIFICATE
TO: Riggs & Company, a division of Riggs Bank, N.A., as Trustee of the
Multi-Employer Property Trust
c/o Kennedy Associates Real Estate Counsel, Inc.
2400 Financial Center Building
Seattle, Washington 98161
THIS IS TO CERTIFY:
1. That the undersigned is the Tenant under that certain Lease dated
___________, and, if applicable, amended on _______________, by and between
_____________, a ____, limited partnership ("Landlord") and the undersigned
("Tenant") covering those certain premises located as shown on the drawing made
part of the Lease (the "Premises").
2. That said Lease is in full force and effect and, except as noted in
Paragraph 1, above, has not been modified, changed, altered or amended in any
respect, and is the only lease or agreement (oral or written) between the Tenant
and Landlord affecting the Premises.
3. To the best of Tenant's knowledge, the information set forth below is
true and correct:
(a) Square footage of the Premises:____________
(b) Annual rent as of the commencement of Lease: $__________
(c) Current annual rent (if different than at commencement): $________
(d) Lease term commenced:___________________
(e) Lease termination date:_________________
(f) Rent is paid to and including:_________________
(g) Security Deposit: $_________________
(h) Prepaid rent for and in amount of: $_________________
(i) Amount of current monthly Escrow Payment obligations with respect
to taxes and other charges under Paragraph 4 of the Lease and with
respect to insurance under Paragraph 13 of the Lease:
Taxes: $ ___________________
Insurance: $ ___________________
(j) Amount of current monthly payments due under Paragraph 7 of the
Lease with respect to Common Area Maintenance charges: $ _________
(k) Dates through which Tenant has paid monthly Escrow Payments and
Common Area Maintenance charges:
Escrow Payment for Taxes:______________________
Escrow Payment for Insurance:__________________
Common Area Maintenance:_______________________
4. The Tenant, unless otherwise stated in Exhibit A, now occupies the
Premises, accepts the Premises in their current condition subject only to those
punch list items shown on Exhibit A, if any, and is not aware of any defect in
the Premises except as shown on Exhibit A, if any. No rent has been collected in
the current month other than as disclosed in Paragraph 3. No free rent or other
concessions, benefits, or inducements other than as specified in the Lease have
been granted to Tenant or undertaken by the named Landlord. All required
contributions by Landlord to Tenant on account of tenant improvements have been
made or received as applicable.
5. The Tenant has not been granted any renewal, expansion or purchase
options and has not been granted any rights of first refusal except as disclosed
in writing in the Lease.
<PAGE>
6. Neither Tenant nor Landlord is in default under the Lease and there has
not occurred any event, which by notice or lapse of time or both or otherwise,
will result in any default. As of the date hereof and except as set forth in the
Lease, the undersigned is entitled to no credit, offset or deduction in the
rent. Tenant knows of no liabilities or obligations of Landlord which have
accrued but are unsatisfied under the Lease as of the date of this Certificate.
7. Tenant is required, under Paragraph 7 of the Lease, to pay a
proportionate share of certain costs associated with the "Common Area which
shall be defined from time to time by Landlord".
8. To the best of Tenant's knowledge, there are no actions, whether
voluntary or otherwise, pending against the undersigned under the bankruptcy
laws or other laws for the relief of debtors of the United States or any state
thereof.
9. No party-in-interest relationship exists between one or more of the
pension plans identified in Section 26K of the Lease and the Tenant such that
the Lease will become a non-exempt, prohibited transaction under ERISA on
purchase of the Premises by the addressee.
10. The term "party-in-interest" shall have the meaning assigned to it in
Section 3(14) of ERISA. ERISA shall mean the Employee Retirement Income Security
Act of 1974, as amended.
DATED this ______________ day of _______________, 1999
TENANT:____________________
